Tribunal Criminal Tribunal for the Former Yugoslavia

Page 34657

 1                           Friday, 11 September 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.03 a.m.

 5             JUDGE AGIUS:  Yes.

 6             Mr. Registrar, please call the case.

 7             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

 8     everyone in and around the courtroom.

 9             This is case number IT-05-88-T, the Prosecutor versus Popovic et

10     al.  Thank you.

11             JUDGE AGIUS:  So good morning, everybody.  All the accused are

12     here.  Representation is as yesterday, except that -- no, no, he's here.

13     Okay.  Representation is a full house today.  Mr. Haynes is present.

14             So, Ms. Fauveau.

15             MS. FAUVEAU: [Interpretation] Thank you, Mr. President.

16             The Prosecutor acknowledges that President Karadzic gave the

17     order of the Krivaja operation directly to the Drina Corps, yet the

18     Prosecutor alleges that the Main Staff was informed of the order of the

19     Drina Corps on the 2nd of July, 1995.  On the basis of these two

20     presumptions, the Prosecution infers that General Miletic had knowledge

21     of the order of President Karadzic and he received the order of the

22     Drina Corps.

23             First of all, those are only presumptions.  Colonel Lasic was not

24     certain how the Main Staff was informed of the order of President

25     Karadzic.  In fact, he was not certain whether the Main Staff had been

Page 34658

 1     informed.  In the collection of the Drina Corps, no telegram informing

 2     the Main Staff of the order of General Karadzic was found.  Also, there

 3     is no trace of any transmission of the order of the 2nd July 1995.

 4             Incidentally, General Miletic was -- is not the Main Staff.  Even

 5     if one supposes that this information was transmitted to the Main Staff,

 6     this does not mean that they were automatically transmitted to

 7     General Miletic.  The order of President Karadzic may have been given

 8     directly or reported directly to General Mladic.  It could have also been

 9     transmitted by a go-between of the duty officer.  The onus of

10     proof lies with the Prosecutor.

11             The knowledge of the information concerning military activities

12     around Srebrenica, and in particular the order of the 2nd July 1995, is

13     an important fact.  The Prosecutor should have established, beyond any

14     reasonable doubt, that General Miletic had received this information, yet

15     he did not do so.  No evidence in the case file permits to reach such a

16     conclusion.  Indeed, if such information were destined to

17     General Miletic, it should have been found in the reports to the

18     Main Staff.  These reports do mention the preparation of combat

19     activities but similar information can also be found in a large number of

20     previous reports from the Drina Corps as well as from the Main Staff, and

21     in particular the report of the 16th of May, 1995, P2892 and P2896.

22             The reports of 2, 3, and 4 July were not drafted on the basis of

23     the order for the combat activities or on the basis of an order of

24     President Karadzic.  They were drafted on the basis of the order received

25     from -- on the basis of the reports received from the Drina Corps.

Page 34659

 1             Let's take as an example the report of the Main Staff of the 4th

 2     of July, 1995, P3164.  The sentence quoted by the Prosecutor at the

 3     footnote 4150, concerning the closing up of the enclaves, is taken --

 4     lifted from the report of the 4 July 1995, 5D1106.  The closing of the

 5     enclaves was not a new task for the Drina Corps.  It was its permanent

 6     task, which appears from all the work plans of the commander of the

 7     Drina Corps, as shown by 5D989 to 5D995.  No particular knowledge of

 8     General Miletic of the actions in which the Drina Corps was going to be

 9     engaged on the 6th of July, 1995, appears from the reports drafted by

10     General Miletic, who, on the 7th of July, 1995, was going to Belgrade to

11     spend some time with his family.

12             The Prosecutor has adduced no evidence that General Miletic has

13     taken part in the making of decisions concerning the changes of the

14     initial plan and of the entering in of the VRS in Srebrenica.  Indeed, as

15     I just said, at the time General Miletic was not even at the Main Staff.

16             During the hearing of 2nd September 2008, the Prosecutor stated

17     that he did not deny the alibi of General Miletic, and he considered for

18     his case that the alibi was proven.  The Defence has no obligation to

19     prove the alibi.  The Defence is simply obliged to present evidence

20     giving rise to a reasonable doubt as for the evidence adduced by the

21     Prosecutor.  It behooves the Prosecutor to set aside the reasonable

22     hypothesis which the alibi is true, or to prove the alleged facts,

23     despite the alibi invoked by the Defence.

24             The decision to enter Srebrenica was taken on the 9th of July,

25     1995; P33.  No evidence exists that General Miletic would have had any

Page 34660

 1     knowledge of this decision before he heard that the Army of the

 2     Republika Srpska had, indeed, entered Srebrenica.  Also, nothing in the

 3     case file shows that General Miletic could have known that such a

 4     decision was going to be made or that he could have foreseen it.  Now,

 5     this is a decision which changed the course of the operation.

 6     General Miletic was completely unaware of it, just as he was unaware of

 7     the order of the 10th of July, 1995, P181.  Simply, he was not present at

 8     the Main Staff.

 9             We consider that General Miletic was not the member of a joint

10     criminal enterprise.  In addition, as he had no prior knowledge of the

11     decision of 9 July, he could in no way foresee that acts such as

12     opportunistic killings might be committed.  The Prosecutor had difficulty

13     in explaining how General Miletic could have foreseen such matters and

14     gave no explanation, more or less.  The Appeals Chamber therefore

15     decided, in its recent decision in the Karadzic case, that the

16     possibility for a crime to be committed must be sufficiently

17     substantiated to be foreseeable for the accused.

18             Without knowing the -- that the Army of Republika Srpska was

19     going to enter Srebrenica, General Miletic had no way of foreseeing that

20     the population of Srebrenica was going to take refuge in Potocari.  The

21     conditions in Potocari, separating the men, and the detention at

22     Bratunac, Kravica, and Petkovci was completely unforeseeable for him.

23     Therefore, he could not foresee the possibility for the alleged acts in

24     paragraph 31 of the indictment.

25             The allegation of the Prosecutor according to which

Page 34661

 1     General Miletic was at the center of the decision-making process in the

 2     period which followed the taking of Srebrenica is always totally

 3     unfounded, and the evidence cited by the Prosecutor do not confirm this.

 4             I shall not repeat the arguments concerning the document of the

 5     13th July 1995, P192, because we have already put them in our closing

 6     brief, paragraphs 508 to 513, but I would like to say a few words on the

 7     alleged participation of General Miletic in the drafting of the order of

 8     the 13th July 1995, P45.

 9             The Prosecutor cites the decision Nedeljko Trkulja -- the

10     declaration of Nedeljko Trkulja was based exclusively on the fact that

11     this order bears number 03/4 of the 11th of September, 2007, page 15183,

12     yet Nedeljko Trkulja admitted in fact that he did not know who had

13     written this order; page 15215.

14             Document P45 bears number 03/4, just as practically any other

15     order of the Main Staff.  In 1995 and up to the 17th of July, 1995,

16     General Miletic was the only officer in charge of operational matters in

17     the Main Staff, since Ljubomir Obradovic was on sick leave.  Simply

18     stated, he could not have drafted alone all the orders given by

19     General Mladic, General Milovanovic, and the assistants of the commander.

20             The order of the 13th of July, 1995, bears the number 03/4-1629.

21     This number, 1629, means that as from the 1st of January and until the

22     13th of July, 1995, the Main Staff had given 1.629 orders, 1.629 orders,

23     by -- so an average of eight to nine orders were issued every day from

24     the Main Staff, 03/4 of -- even if one assumes that General Miletic did

25     nothing else, he was not able to draft alone every day eight to nine

Page 34662

 1     orders.

 2          The Prosecutor admits that officers of other bodies were involved in

 3  operational affairs.  The duty officers who came from were different sectors

 4     certainly perfectly capable of drafting orders.  When they were on duty,

 5     those officers, just like duty officers of subordinate units, the corps

 6     and the brigades, were not subordinate to the chief of the body in charge

 7     of operational matters, but to the commander or the person who stood in

 8     for the commander.  This is 7D442.  Besides, the Defence of General Gvero

 9     does not challenge that General Gvero gave orders bearing number 03/4.

10     In their final brief, page 94, footnote 408, and page 209, paragraph 297,

11     the Defence of General Gvero has acknowledged that General Gvero had

12     given the order of the 11th July 1995.  This is Exhibit 6D207.  This

13     order of the 11th of July, 1995, 6D207, bears, just as the order of the

14     13th of July, 1995, the number 03/4.

15             In order to prove that General Miletic had taken part in the

16     drafting of an order, the Prosecutor should have adduced the evidence

17     showing that General Miletic had, indeed, done so.  The evidence shows

18     that General Miletic was not the only officer who drafted orders in the

19     Main Staff, and no evidence shows that he would have taken part in the

20     drafting of the order of the 13th of July, 1995.

21             The Defence of General Miletic does not challenge that the

22     logistic body of the Main Staff could have been involved in certain

23     logistic aspects of the activities of the Drina Corps in July 1995, but

24     General Miletic had no part in this.  As we indicated, General Miletic is

25     neither the Main Staff nor the commander of the Main Staff.  He has no

Page 34663

 1     need to know all the activities of the Main Staff and may not,

 2     therefore, be held responsible for them.

3          I would simply like to add that the allegations of the Prosecutor in

 4   paragraph 287 of their final closing brief, concerning the use of air bombs

 5  during Krivaja operation, are unfounded, the Prosecutor alleges also, at the

 6  the footnote 674, that General Miletic was involved in the transportation of

 7   such bombs, air bombs.  Quoting document 5D976 and the testimony of Dragisa

 8   -- neither the testimony of Dragisa Masal, nor the document 5D976, have any

 9     connection with the Krivaja operation, and document 5D976, which is the

10     order of General Milovanovic of the 30th March, 1995, and the testimony

11     of Dragisa Masal concerned the Operation Spreca.  Milo Gavric, chief of

12     the artillery of the Bratunac Brigade stated that these bombs, although

13     provided for in the Brigade order of 5 July 1995, were never used.

14             Just as there is no evidence implicating General Miletic in

15     logistic affairs, the Prosecutor did not adduce any evidence that would

16     have involved General Miletic in the mobilisation of the buses.  The case

17     of the Defence concerning the conversation or intercept concerning fuel

18     on 12th of July, 1995, P111, are expounded in our closing brief,

19     paragraphs 418-483.  This is P1111.  In his

20     interpretation of the intercept, the Prosecutor, supposing that Miletic

21     was mentioned in this conversation was General Miletic, is only

22     interested neither in what General Miletic did, nor in what he said, he

23     is not even interested in what General Miletic knew.  For him it is

24     enough that somebody, whose identity is not known, would have contacted

25     him.  If the Miletic mentioned in this intercept is General Miletic, this

Page 34664

 1     conversation, contrarily-wise to allegations, shows exactly the opposite

 2     of what the Prosecutor wants to demonstrate.  It shows that

 3     General Miletic has in no way contributed to the supply of fuel and that

 4     he did not even have knowledge of this, because in any other case he

 5     should have reacted to the request of fuel which he received, and he did

 6     not do so.  Indeed, there is no evidence that General Miletic has had any

 7     role concerning the events which follow the fall of Srebrenica until the

 8     Muslim column created a military threat in the area of the Zvornik

 9     Brigade.

10             Although we consider that the actions taken with the intention to

11     military combat the column do not feature in the indictment, I would like

12     to make a few remarks on the conclusions of the Prosecution which are

13     unfounded.

14             Could we please go to closed session.

15             JUDGE AGIUS:  Let's go into private session for a short while,

16     please.

17                           [Private session]

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

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11 Page 34665 redacted. Private session.















Page 34666

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5                           [Open session]

 6             JUDGE AGIUS:  We are in open session.  Thank you.

 7             MS. FAUVEAU: [Interpretation] Supposing this conversation did

 8     take place.  Is it really so important to know whether it took place on

 9     the 14th or the 15th of July?  Well, of course it's important.  All --

10     the whole case for the Prosecutor is predicated on this conversation,

11     which would have given General Miletic, in the evening of the 14th July

12     1995, the information concerning the column and the situation in Zvornik.

13     If General Miletic ever had such a conversation, he certainly didn't have

14     it on the 14th of July, 1995.

15             We have set out our arguments regarding conversations connected

16     with extension 155.  This was P1164.  And with the conversation a certain

17     General Vilotic may have had, P1166, in our closing brief, paragraphs 530

18     to 540.  Nobody in this case has ever managed to identify

19     General Vilotic.

20             Regarding extension 155, this extension could be anything,

21     anywhere.  But if it is - if it is - the extension of the Main Staff, it

22     first -- it had to be established at least who was in the operations room

23     in the evening of 14th July of 1995.  There were always many officers in

24     that room.  There were duty officers, for sure, and Witness Sasa

25     Jovanovic did confirm that the assistant commanders could have been

Page 34667

 1     there.  He said so on the 6th of July, 2009, transcript pages 33949.

 2             The possibility that General Miletic might have taken up the

 3     phone on extension 155 is only one among many other possibilities that

 4     are equally reasonable and plausible.  Many other officers could have

 5     taken up the phone on extension 155.  To conclude that it was

 6     General Miletic is certainly not the only reasonable conclusion.

 7             The way the conversation between Malinic and Nastic, which is

 8     P1168, on 14th of July, is also wrong.  If the Prosecutor is to be

 9     believed, Zoran Malinic gave instructions to Nastic after speaking with

10     General Miletic.  The words put into Malinic's mouth by the Prosecutor

11     were, indeed, spoken by Nastic, because he was the one who gave

12     instructions to Malinic.  Even if you think that this conversation was

13     true, which has not been confirmed by other evidence, this does not

14     support the Prosecutor's case.  Nastic did not speak with

15     General Miletic, and the instructions he gave, which were incorrectly

16     attributed to Malinic by the Prosecutor, have no link whatsoever with

17     General Miletic.

18             If you analyse the events and the conversations of the 14th of

19     July, 1995, correctly, you will see that on that day General Miletic did

20     not have any information as to the situation prevailing in the

21     Drina Corps area of responsibility, other than what he could read in

22     reports.  The report of the Main Staff of the 14th of July, 1995, P48,

23     literally passes on the information provided by the Drina Corps in their

24     report, which is 4D84.  If General Miletic had other information, he

25     would have put it into the Main Staff report, just as he did on the 16th

Page 34668

 1     of July, 1995, P50, when he had received information from other sources.

 2             General Miletic informed the Zvornik Brigade of the arrival of

 3     the Krajina Corps Brigade.  This is not an order.  It is a piece of

 4     information drafted after an agreement with the 1st Corps commander.  But

 5     beyond these rather technical observations, is it possible to see, in

 6     this document, an unlawful act, an unusual act, or a piece of document

 7     that should not have been written?  No.  This document is a military

 8     document that was written with the sole -- with the unique objective of

 9     fighting the Muslim forces.  And we're not just speaking about the column

10     that left Srebrenica.  We have in mind also the 2nd Corps forces that

11     attacked the area of the Zvornik Brigade on the north-west front.  This

12     is 5D303.  This was the testimony of Ostoja Stanisic on the 17th of May,

13     2007; transcript pages 11713.

14             The dispatch of reinforcements to Zvornik on the 15th of July was

15     a militarily-justified act.  This is the only possible conclusion.  No

16     criminal intent can be inferred from this act.  When General Miletic

17     passed on the information regarding the dispatch of the Krajina Brigade

18     to Zvornik, he had not the slightest idea of what was really happening in

19     Zvornik.  He couldn't even imagine that the members of that brigade could

20     later on be involved in criminal acts of which, incidentally,

21     General Miletic is not accused and that were totally, in all respects,

22     inconceivable for him.  The only acts that could have been ascribed to

23     General Miletic on the 15th, 16th, and 17th of July, 1995, are all linked

24     to the military threat that was represented by the forces of the ABiH, by

25     the column, but also by the 2nd Corps forces.

Page 34669

 1             Regarding the allegations of the Prosecution that General Miletic

 2     had knowledge of murder, executions, this is way beyond the scope of the

 3     indictment.  But beyond that, the Prosecutor's conclusions are

 4     implausible constructions, devoid of any evidence.

 5             The reports General Miletic received at the time were very vague.

 6     They were also contradictory, and none of them managed to describe the

 7     situation properly.  General Miletic was not in the field, he was not in

 8     the area of responsibility of the Zvornik Brigade.  No information

 9     regarding the thousands of Muslims that had been captured and detained

10     ever reached him.  The only thing that was reported to him was the fact

11     that a large number of Muslims had surrendered.  In a fighting situation,

12     a large number can amount to several scores of prisoners.  Neither

13     General Miletic nor the Administration for Operations and Training had

14     any authority regarding prisoners.  General Miletic could only include

15     this information in the reports drafted by the Main Staff.  This was his

16     obligation, and this is what he did.  He could not imagine for a single

17     moment what was the fate -- what could be the fate of these prisoners.

18             Once again, General Miletic is not the Main Staff.  He did not

19     receive all the reports sent to the Main Staff.  He received combat

20     reports.

21             The reports on intelligence mentioned by the Prosecutor in

22     paragraph 1702 of their brief were not addressed to General Miletic.

23     Document P149 was not even sent to the Main Staff.  Documents P147 and

24     P148 were sent to the Administration for Intelligence, the Intelligence

25     Sector.  There is no evidence to confirm that General Miletic ever saw

Page 34670

 1     them.  There is no evidence to show that General Miletic should have seen

 2     them.

 3             Just as he was not involved in the Srebrenica events,

 4     General Miletic did not take part in the Zepa events.  General Mladic was

 5     in Zepa, and so were some of his assistant commanders.  It is obvious

 6     that those who were in Zepa knew the situation in Zepa much better than

 7     General Miletic, who was not there.  The only knowledge he had was

 8     derived from the reports he would receive.

 9             With regard to the report of the 65 Protection Regiment that was

10     sent by telephone, it was about the activities of the said regiment on

11     their base in Crna Rijeka, where the unit was in charge of securing the

12     Main Staff.  These reports did not contend any information about Zepa.

13     The latter was to be found in the Drina Corps reports to which one unit

14     of the 65 -- 65th Regiment had been re-subordinated by way of an order

15     given by General Milovanovic on the 21st of May, 1995.  This is

16     Exhibit 5D1214.

17             Admittedly, during the Zepa operation, General Miletic did

18     receive some request from the field, but these documents do not amount to

19     any evidence of his contribution to the Zepa events.  Very simply -- to

20     put it very simply, there is no evidence that the requests addressed to

21     him were ever followed up.  There is no evidence to suggest that

22     General Tolimir received the communications equipment asked for on the

23     14th of July.  This was P183.  There is no evidence to show that the

24     military police of the 65th Regiment requested by General Krstic on the

25     20th of July - this was P3015 - ever made it to Zepa.  There is no

Page 34671

 1     evidence that the proposals made by General Tolimir and sent on the 21st

 2     of July - P2794 - were ever implemented.

 3             The Defence has set out their arguments about the conversation

 4     between General Mladic and General Krstic in their brief; paragraphs 568

 5     to 572.  Let me just say this:  Exhibit P3058, which show, the Prosecutor

 6     alleges, confirms the content of the conversation, shows, indeed,

 7     contrary to the Prosecutor's allegation and contrary to the content of

 8     the conversation, throughout the day on 17th of July, 1995, the Muslims

 9     turned down the conditions offered by the Serbs.

10             Indeed, General Mladic would not have the meeting at the airport,

11     but the negotiations between the Serbs and the Muslims, mediated through

12     the UNPROFOR, carried on after the refusal, and an answer was expected

13     the next day at 10.00.  Within the context of Exhibit P3058, the contents

14     of the conversation that bears the number P1231 is totally

15     unlogical [as interpreted].

16             On that day, the 17th of July, Colonel Trkulja returned from

17     Zvornik.  Zvornik may have been the reason why General Krstic had to

18     contact Colonel Miletic.  Zvornik, Zepa, and why not the Drina Corps unit

19     that was on the Sarajevo front?  Why not the reports that General Miletic

20     had been expecting since December that are mentioned in conversation

21     P2341?  Zepa is certainly not the only possible topic of this

22     conversation.  There is no evidence to substantiate the conversation

23     between General Mladic and General Krstic.  There is no evidence that

24     General Krstic ever contacted General Miletic.

25             May I remind you of the testimony of Witness PW-147, who

Page 34672

 1     testified that at times the events that would follow a conversation were

 2     exactly the opposite of what had been said in that conversation.  Indeed,

 3     after the Prosecutor corrected their allegation about Colonel Miljanovic,

 4     and after the conversation -- about the conversation of 24th of July, the

 5     only link between Miletic and Zepa remains Exhibit P190, a report about

 6     Colonel Karanovic on the 25th of July.  Contrary to the Prosecutor's

 7     allegation, this exhibit does not show that General Miletic talked to

 8     General Lugonja.

 9             Regarding the conversation with Mr. Bulajic, this exhibit does

10     not allow the inference that General Miletic spoke with him or whether he

11     was just present during the conversation.  The conversation with

12     Mr. Bulajic is about negotiations carried out by the RS Commission for

13     War Prisoners with Muslim authorities.  Such negotiations are nothing

14     uncommon.  They should have been useful and constructive.  Their purpose

15     was not to transfer population; it was to look for a solution.

16     General Miletic's participation in the conversation with Mr. Bulajic does

17     not mean that he contributed to the JCE, let alone that he had any intent

18     to do so.

19             General Smith went to Zepa.  He participated in the negotiations.

20     He was far more involved than General Miletic was.  However, it never

21     occurred to anyone to say that General Smith would have participated in

22     forcible transfer.  The only difference between General Smith and

23     General Miletic is that General Smith was a member of

24     the UNPROFOR, whilst General Miletic was a VRS member.  The fact of

25     belonging to the VRS is not enough to infer General Miletic's criminal

Page 34673

 1     intent, but nothing, not a single shred of evidence, would prove that

 2     General Miletic, throughout his service in the VRS throughout the war,

 3     including in 1995, ever acted with a criminal intent.

 4             General Miletic was not in Srebrenica, he was not in Zepa.  He

 5     lacked any specific information related to these events.  And, above all,

 6     he had no influence at all.  General Miletic knew that General Smith was

 7     going to Zepa.  He knew that the international organisations were in

 8     Zepa.  How could he assume that acts that can be characterised as

 9     criminal acts may have happened there?  Of course, the mere presence of

10     international organisations does not remove the criminal character from

11     the act of transferring population.  It is just that General Miletic was

12     not there, that he had no accurate information regarding these events.

13     He could not know that criminal acts could have been committed.  In his

14     view, the fact that there were international organisations there was a

15     guarantee, an assurance, that the laws of war would be complied with.

16             All the acts of General Miletic were perfectly legitimate, were

17     carried out as part of his duties.  Of course, a legitimate act that was

18     accomplished as part of somebody's duties can also contribute to a

19     criminal enterprise, but, at any rate, it must be established that the

20     act had been carried out with criminal intent.  Yet, the evidence adduced

21     at trial does not allow any such inference.  The acts that could be

22     ascribed to General Miletic would have been carried out by any officer in

23     the position of the chief of the Main Staff Operations and Training.  Any

24     officer in charge of operations would have done exactly the same as

25     General Miletic, and no officer in charge of operations could have

Page 34674

 1     done -- would have done anything else.

 2             Mr. President, Your Honours, you don't have in front of you the

 3     entire Army of Republika Srpska.  You do not have the Main Staff in front

 4     of you.  You do not have to make any determination on the duties of the

 5     chief of the Administration for Operations and Training.  You have to

 6     make findings as to General Miletic's responsibility.  He was an officer

 7     who, as part of his duties, took part in drafting Directive 7, but he was

 8     also the officer who did not transmit the final text of that directive to

 9     subordinate units.

10             General Miletic was in a position to sign notifications regarding

11     convoys when General Milovanovic was absent.  He had no influence

12     whatsoever on the decisions that were made, but he knew that the convoy

13     would not be allowed through if he did not send a notification.

14     General Miletic was not the person who was -- whom it was impossible to

15     bypass in the Main Staff.  The entire Krivaja operation took place while

16     he was on leave.  General Miletic did not take part in making the

17     decision.  He had no influence over General Mladic.  He wasn't even

18     directly subordinated to him.  He was subordinated to

19     General Milovanovic.

20             This trial went on for over three years.  Several thousands of

21     exhibits were admitted, but there is none whatsoever showing a meeting

22     between General Mladic and General Miletic.  There is no evidence or

23     suggestion that a proposal made was ever made by General Miletic to

24     General Mladic.  There is no evidence of any specific contact between

25     General Miletic and General Mladic.  There is nothing, but for

Page 34675

 1     General Mladic's speech that failed to mention among -- as people being

 2     among his close associates General Miletic.

 3             He's a discreet and decent officer.  He's an officer who never

 4     expressed, in a conversation, an interview, or a speech, the slightest

 5     animosity or bias towards ethnic communities.  General Miletic was also a

 6     moderate officer.  That General Mladic sent for the first time to a

 7     meeting with the UNPROFOR in September 1995, when the balance of power

 8     had shifted and when General Mladic had to display cooperation and

 9     moderation.

10             Mr. President, Your Honours, the evidence adduced at trial fails

11     to establish General Miletic's responsibility.  The Prosecutor failed to

12     establish, beyond reasonable doubt, that General Miletic had any criminal

13     intent.  Therefore, General Miletic must be acquitted of all charges.

14             Thank you very much.

15             JUDGE AGIUS:  Thank you.  Judge Kwon?  Judge Stole?  Judge Prost?

16             None of us has any questions for you at this stage, at least.  We

17     may have later on, after having heard everyone.

18             So -- yes, Mr. Gosnell.

19             MR. GOSNELL:  Mr. President, I had the opportunity last evening

20     to review the transcript of yesterday's proceedings, and with your kind

21     permission I would request the opportunity to supplement just three of

22     the answers that I gave you yesterday very briefly, certainly less than

23     six or seven minutes.  And I understand that we actually came in under

24     our time allotment by about half an hour.

25             JUDGE AGIUS:  It's okay.  Go ahead.

Page 34676

 1             MR. GOSNELL:  Thank you, Mr. President.

 2             Mr. President, I'd like to begin with a question that was asked

 3     by Her Honour Judge Prost, who asked -- and I apologise that I don't have

 4     the official page references, but Judge Prost asked:

 5             "Let's presume that there is a conclusion reached that at least

 6     two members of Mr. Borovcanin's unit had custody, just for the sake of

 7     argument."

 8             And then a question followed about the legal implications of the

 9     Mrksic decision.  I should at that point have presented to you, first of

10     all, a factual issue, and that is that by the time Mr. Borovcanin arrives

11     along the road, one of those two men is dead and the other has left, so I

12     suggest to you that in respect at least of those two individuals, custody

13     cannot be attributed to Mr. Borovcanin because one is dead, one is gone.

14     That's the first argument.

15             But this leads to a second question which I believe was

16     interrelated to the question that Her Honour Judge Prost was asking, or

17     at least it is in substance, and that was the President's question being,

18     and I quote:

19             "Why would there be those two specials and no one else from the

20     specials?"

21             And I have two submissions on this.  First, I simply wish to draw

22     your attention more specifically to our brief at 190 to 192, where I more

23     fully set out the substantiation to the answer that I gave yesterday.

24     But much more importantly, even if you're left in doubt about why those

25     two individuals were there, and we respectfully submit that if you are in

Page 34677

 1     doubt, that doubt must be resolved in favour of the accused, but even if

 2     you were to decide otherwise, I suggest to you that there is a huge body

 3     of evidence that you need to consider, in addition to just the absence of

 4     a "why," in determining whether or not that is a safe inference.  In

 5     fact, we devote a substantial portion of our brief precisely to

 6     addressing that wider context so that you can assess whether the

 7     remainder of that unit can be inferred to have been there just on the

 8     basis of the presence of those two individuals.  And that evidence is

 9     summarised in the bullets presented at paragraph 369, and I simply refer

10     you to that paragraph because it conveniently summarises the evidence

11     that precedes that paragraph.

12             The third question that I would like to address you on is

13     Judge Stole's question, which I must say I didn't particularly -- I did

14     not answer particularly well, having gone back and looked at the

15     transcript.  He asked a particular question in relation to a sentence

16     that appears in the middle of paragraph 330 of our brief, and the

17     sentence is:

18             "Borovcanin had no duty, as a superior, to make any inquiries

19     into what was going on in the warehouse unless his men were present

20     there."

21             Let me try to explain what I meant by that.

22             Article 7(3) requires a commander to ensure that one's own

23     subordinates are not committing crimes.  It doesn't give rise to an

24     open-ended obligation to inquire as to whether non-subordinates are

25     giving crimes -- are committing crimes.  Borovcanin did make inquiries as

Page 34678

 1     to whether his men were committing crimes, and I refer you to

 2     paragraphs 328 to 330 of our brief, where we do set out the inquiries

 3     that he did make at that time and subsequently.  We argue there and we

 4     believe that it is reasonable for you to accept that it was reasonable

 5     for him to rely on what he was told at that time, given the context.  And

 6     this is a fact-specific inquiry.  Given the context, it was reasonable

 7     for him to rely on what he was told.

 8             And in that respect, again, the contextual factors that make it

 9     reasonable for him to have relied on what he was told are expressed at

10     that paragraph 369, in the bullet points, but also as illustrated in

11     Annex F of our brief, which shows you where his units were along the

12     road.

13             So the basis for the claim that is being made in the middle of

14     paragraph 330, to answer this question very directly, is a factual --

15     that's a factual claim based upon what we know of the evidence.  That's

16     not intended to be a legal claim to suggest that there was no duty to

17     make those inquiries.  He did make those inquiries.

18             And for completeness, I would also refer you, in addition to

19     paragraphs 328 to 330, also to paragraphs 336 to 338, where further

20     inquiries and explanations are documented.

21             Thank you very much, Mr. President.

22             JUDGE AGIUS:  Thank you, Mr. Gosnell.

23             Judge Prost?  Judge Stole?  Okay.

24             Now, do you need some time to -- no, okay.

25             MR. JOSSE:  May it please Your Honours, it's now our opportunity

Page 34679

 1     to address you on behalf of Milan Gvero.  Your Honours, I'm going to

 2     start, then Mr. Krgovic is going to take over a little later on, and then

 3     I'm going to take up where he leaves off.

 4             Let me begin by saying that making closing speeches used to be my

 5     bread and butter.  Prior to my arriving at this Tribunal, over a 20-year

 6     period I must have given literally hundreds of such addresses both for

 7     the prosecution and for the defence.  These were in front of magistrates,

 8     judges, and juries, in trials that lasted from as little as one hour to

 9     as long as several months, trials in relation to a whole range of

10     criminal allegations, from the very minor to the very serious.  The

11     problem, Your Honours, that I face today is that I'm somewhat out of

12     practice.  I've worked at this Tribunal for over four years, and I have

13     never, in that time, given an address like this.  I can only hope that in

14     the next hour or so, I will learn that making a closing address is a

15     little like riding a bicycle, something that one can always do once one

16     has learned how, a truism, of course, confirmed to me by living in the

17     Netherlands.

18             The main reason I'm emphasising this at the beginning of my

19     address is not to ask you to excuse my lack of organisational skill,

20     which all around me know only too well, or even my lack of eloquence.

21     It's that you forgive me if at times I sound like an old, broken record

22     as I address the Court endlessly about the basic tenet of any fair system

23     of criminal justice; namely, the burden and standard of proof.  This is,

24     in part, because old habits die hard, and such a theme would be the

25     central part of any such address that I have given in the past, but it's

Page 34680

 1     also because it's a subject that I feel is worth spending some of our

 2     valuable time upon today.  And in one sense, let me say I feel a little

 3     like Mr. Ostojic.  He said he was somewhat apologetic for having

 4     mentioned the subject at all, because like him, I appreciate that this

 5     Trial Chamber is very familiar with this concept.  I appreciate it will

 6     always be in the forefront of your minds, that you are professional

 7     judges, and that you neither need nor appreciate being lectured by

 8     counsel on this important subject.  But the simple fact, we suggest, that

 9     with the best will in the world, it's all too easy to get it slightly

10     wrong and mis-apply this vital principle.

11             During the course of the addresses we've heard over the last few

12     days, we've seen that, and simply by way of example and illustration I

13     would like to, over the next few minutes, highlight to you how easy it is

14     to get it wrong.  And I'm about to give, if I may, a random selection

15     relating to various accused in this case, and they're purely in

16     chronological order.

17             In fact, the first my learned friend Madame Fauveau just referred

18     to a few moments ago, but I make no apologies for making the same point

19     as she has just done.

20             At 34072, on the 2nd of September, Mr. Thayer was addressing her

21     case, and he said:

22             "Obviously, from our position during trial and in our brief,

23     we're not contesting in any real way General Miletic's quasi-alibi of

24     being in Belgrade from the 7th through the 11th.  Let's assume that it's

25     been proved just for the sake of argument."

Page 34681

 1             Well, Your Honours, quite what Mr. Thayer meant by "we're not

 2     contesting in any real way," is, to put it mildly, somewhat obscure.  But

 3     leaving that aside, he's got it wrong.  He said, "Let's assume that it's

 4     been proven."  Well, of course, Miletic doesn't have to prove anything at

 5     all, least of all an alibi.

 6             Two pages later, Mr. Thayer says:

 7             "You have to ignore a mountain of compelling testimony to come to

 8     the conclusion that DutchBat was sitting on that much fuel at that time."

 9             We say he's wrong.  The Defence do not need to establish any such

10     conclusion at all.  The opposite is true.  You'd have to be satisfied,

11     beyond a reasonable doubt, that the only conclusion was that DutchBat

12     were not sitting on that much fuel.

13             At 34083, Mr. Thayer's addressing my client's case, and he says:

14             "The Gvero brief would literally have you believe ..."

15             This makes it sound, we suggest, like we have a burden, something

16     we have to prove.

17             Let's make it clear, Your Honours.  We're not seeking to make you

18     believe anything at all.  The only purpose of our final brief in these

19     submissions is to contend that the Prosecution have failed to discharge

20     their heavy burden.  If we suggest anything at all, it's literally in

21     that context.

22             The following day, at 34181, Mr. Elderkin is addressing a Gvero

23     Defence factual point about a particular alleged opportunistic killing.

24     He says:

25             "It is not reasonable to draw any conclusion."

Page 34682

 1             Again, we suggest it's the wrong test.  The Defence have no

 2     burden, nor are they seeking to persuade you to draw any conclusions at

 3     all.

 4             On the 4th of September, Mr. McCloskey is addressing

 5     Mr. Borovcanin's case, and he says:

 6             "It was full of unreasonable conclusions."

 7             Again, we'd suggest the wrong test, but he goes on a line later

 8     and he says this:

 9             "We absolutely stand by, as we always have, the legal

10     proposition, if there are two reasonable interpretations of

11     circumstantial evidence, one in favour of the Defence and one in favour

12     of the Prosecution, the Court must go with the version in favour of the

13     Defence."

14             Now, Mr. McCloskey makes it sound like some sort of equal

15     contest.  Perhaps he doesn't mean quite what he says, but we would

16     suggest it's misleading and, at the very best, a simplification of what

17     is a vital topic.

18             At 34239, Mr. McCloskey says:

19             "The fair inference you should make is ..."

20             Again, wrong test, we suggest, Your Honours.  The only inferences

21     or tests, from the Prosecution's point of view, if it's anything less

22     than the only inference you can act on in the Prosecution's favour, then

23     it's not an inference that you can draw adverse to an accused in this

24     case.

25             Even my learned friend Mr. Gosnell, in his tour de force on

Page 34683

 1     Wednesday, at 34573, got it wrong when he said:

 2             "The Defence side are required to discharge ..."

 3             Of course, the Defence are not required to discharge anything

 4     whatsoever.

 5             And, finally, I hope you'll forgive me, but Madame Fauveau, we

 6     suggest, got it wrong yesterday when, at 34648, she said:

 7             "It suffices," she's talking about the Defence here, "for it to

 8     adduce evidence showing that another possibility is reasonable."

 9             Well, of course the Defence don't have to adduce any evidence at

10     all.

11             Now, Your Honours may say that these are slips of the tongue, and

12     in some cases no doubt they are.  Some may be stylistic and some may be

13     translation, interpretation, or that type of error.  But we suggest that

14     they do indicate how easy it is to enter into a general misconception as

15     to exactly what the burden of standard of proof is and what the words

16     "beyond reasonable doubt" mean.  And when the Prosecution advocates were

17     saying these particular things, perhaps they weren't considering quite

18     what these words mean and the extent to which they apply to this and any

19     other case.

20             Now, before I move on, simply because it fits conveniently into

21     this part of my address, I'd like to deal with another similar point that

22     arises in the Prosecution final brief, and it's been alluded to in one

23     form or another, I think, by both Mr. Bourgon and Madame Fauveau in

24     slightly different contexts.  But so far as Gvero is concerned, 1765 of

25     that brief, the Prosecution say:

Page 34684

 1             "Gvero would have participated in the drafting of Directive 7."

 2             We suggest, Your Honours, that the words by the drafter of that

 3     sentence "would have" give the game away.  The writers of the Prosecution

 4     final brief are native English speakers, and they could easily have said

 5     Gvero participated in the drafting of Directive 7.  Because they know

 6     they don't have the evidence to support that proposition, subconsciously

 7     or otherwise, we suggest, they put in the words "would have."  And in

 8     this context, the words "would have" fall short of beyond reasonable

 9     doubt.  We make a similar point in relation to paragraph 1760.

10             Returning to where I left off a moment ago, it's a basic

11     principle that the accused doesn't have to prove anything at all.  The

12     presumption of innocence means precisely what it says.  It does not mean,

13     and excuse me for putting it this way, that the Prosecution are entitled

14     to say, somewhat emotively, "These are terrible crimes, there are lots of

15     victims that require justice, the accused in question has a close

16     connection with the army who committed these crimes, look who this

17     accused associates with, this is all terribly, terribly suspicious,

18     dodgy, fishy, call it what you will.  The accused must be guilty, or put

19     another way, unless the accused comes up with some compelling description

20     that sounds correct, that he must be guilty."  Your Honours, we suggest

21     it's all too easy to slip into that kind of thinking, particularly in a

22     case that centers on an allegation of quite literally the murder of

23     thousands of people.

24             Now, if you'd excuse me, but I want to broaden this out very

25     slightly and look at this particular topic in a slightly different way,

Page 34685

 1     and in the context of a trial by judge rather than jury, because, as

 2     you're no doubt aware, juries are viewed as sacrosanct in many countries,

 3     but even their staunchest defenders would have to admit they have one

 4     very significant drawback, and that is they give no reasons at all for

 5     their decisions.  And it's here that the parties to this case, both

 6     Prosecution and Defence, have a distinct advantage, we suggest.  The

 7     parties will learn the reasons why a Trial Chamber has come to its

 8     various conclusions.  This, of course, provides a very important

 9     safe-guard.

10             The judgement and its various conclusions will allow the parties

11     to know how the Trial Chamber has evaluated the various witnesses it has

12     heard, as well as the other evidence, but, of course, such evaluations

13     and, in particular, conclusions, need to be within the context of the

14     burden the standard of proof.  The parties will be able to see why a

15     particular witness, in whole or in part, has been relied upon by the

16     Trial Chamber.  It's a basic tenet of the system that this is a very

17     unequal battle.  I say "a very unequal battle" because it's heavily

18     weighed in favour of an accused person, because - and excuse me for

19     stating the obvious - for you to rely on a witness or a piece of evidence

20     in the Prosecution's favour, you would need to be satisfied beyond

21     reasonable doubt that that piece of evidence or witness was correct in

22     that regard.

23             Of course, to rely upon a witness or a piece of evidence in an

24     accused's favour, there only needs to be some reasonable possibility that

25     what the Defence assert about that piece of evidence is, in fact,

Page 34686

 1     correct.  We suggest that one needs to be realistic about this, because

 2     it follows that in this or, indeed, any other trial, there are highly

 3     likely to be very much issues that the Trial Chamber, in its judgements,

 4     are actually unable to determine.

 5             What do I mean by this?  Well, on any given issue, if the Trial

 6     Chamber are left in any reasonable doubt about the issue, then, of

 7     course, they have to give the benefit of that doubt to an accused.  Now,

 8     addressing this full on and being, for wont of a better expression, adult

 9     about it, this does not mean for one moment that the Prosecution case on

10     any hypothetical issue is wrong; indeed, it may well be right.  On many

11     occasions, it probably is right.  Equally, it doesn't mean that a Defence

12     case on a particular issue is right or probably right; indeed, it's wrong

13     or quite probably wrong.  But if there's a reasonable doubt, that always

14     exercises in favour of the accused.

15             We venture to suggest that this leaves a Trial Chamber in a long,

16     complicated case like this, in some difficulty.  Real istically, the

17     desire and certainly the temptation in a judgement is to try and make a

18     series of factual findings so as to, in effect, tell an account, dare say

19     a historical account, of these events, and then fit the accused into the

20     picture.  But we would venture to suggest that it's not like writing a

21     report on these events in the way that NIOD were able to or, indeed, the

22     way that the Secretary-General was able to.  It's not like writing a

23     historical account in the way that various books one could buy in a shop

24     read.  It's actually, we would venture to suggest, much more difficult as

25     it's far more disjunctive.

Page 34687

 1             Now, Your Honours, I appreciate that when I am saying this, I am

 2     addressing Judges who have had the experience of writing judgements at

 3     this Tribunal hitherto, but nonetheless I persist with my point.

 4             The problem, we suggest, that the nature of the system at the

 5     ICTY is, in fact, totally inimical to this type of fact-finding, and it's

 6     inimical to that because in order to say that any fact, and we quite

 7     literally mean any fact as established, you've got to be satisfied beyond

 8     reasonable doubt that the Prosecution have proved it.  And to repeat what

 9     I've said, this is actually highly unlikely on many contentious issues.

10     Common sense simply dictates that you are going to be left in doubt, that

11     you're going to say, Well, we think that this probably happened, or, Yes,

12     this has been proved on the balance of probabilities, but we have to

13     accept that a reasonable doubt has been raised, and it's simply not

14     clear, in terms of a criminal judgement, what happened in regard to this

15     specific issue or fact.

16             And without labouring the point, it is, of course, no coincidence

17     that the two verdicts open to you, in relation to any count on this

18     document, in relation to any accused, is guilty or not guilty, that it's

19     not guilty and innocent, and that, of course, is no coincidence.

20             Now, some may think that these submissions are not at all

21     attractive.  I suspect some would say they're very unattractive in the

22     extreme, because not only does it leave things in limbo, it leaves courts

23     to be able to make findings that are most probably true but have not been

24     proven to the requisite standard.  This has all sorts of repercussions,

25     repercussions to victims who are not getting the justice they deserve,

Page 34688

 1     political conditions considerations that we all know about.  And to

 2     address this issue head on, and excuse me for saying it, it leads to men

 3     who are most probably guilty of extremely serious crimes actually walking

 4     free.  Now, lest anyone think I am suggesting for one moment that that is

 5     the case with any of the accused in the dock in this case, I'm not.  My

 6     submissions are entirely theoretical, but they apply equally to all cases

 7     at this Tribunal and to many other jurisdictions as well.  And I've been

 8     at pains not to give any specific examples, save the mistakes of some of

 9     the advocates over the last few days.

10             But I said a moment ago that these submissions are theoretical.

11     They also happen to be true and central to the system of justice that you

12     have been given the heavy responsibility of administering.  It's a heavy

13     burden you face, we suggest, in, among other things, dispensing

14     appropriate justice, applying the burden of the standard of proof in the

15     proper fashion.

16             I started this -- the first section of my address by saying that

17     I haven't made a closing speech for over four years.  That may be true,

18     but one thing I have proved to myself is that old habits do die hard,

19     because I would never have had the guts and, some would say, be so

20     foolhardy as to address a jury in this way, to look them in the eye and

21     say what I have just said to you.  We suggest that is the advantage of

22     professional judges, and that advantage is the most important aspect of

23     this criminal justice system and, we trust, it will be reflected both in

24     your deliberations and your judgement.

25             Now, moving on from that, I've already alluded to the impact what

Page 34689

 1     I've had to say has on witnesses.  Assessing the credibility of witnesses

 2     is an essential part of your task.  Obviously, the burden of standard of

 3     proof is vital here.  I've already made some reference to it.  If the

 4     Prosecution rely on an assertion or a piece of evidence of a witness,

 5     particularly if it's unsupported by any other piece of evidence, then you

 6     can only act upon it to the detriment of the accused if you're satisfied

 7     beyond reasonable doubt it's true and correct.  As I've already said, the

 8     opposite isn't the case, and I won't repeat the point.

 9             Mr. Bourgon put the dilemma you face in this regard very well, we

10     would suggest, at 34486, lines 4 to 15.  In a trial such as the present

11     one, the dilemma that he sets out is particularly acute, because a number

12     of the witnesses whose credibility even the Prosecution question, the

13     Prosecution have rightly cautioned you, both in their opening and in

14     their final addresses, as to how some of the witnesses in this case need

15     to be treated with great care.  The Prosecution, as I've already pointed

16     out, and I make no apology for saying so again, don't really remind the

17     Trial Chamber how this isn't some sort of equal, level playing field when

18     sizing up these witnesses; the Defence have the enormous advantage for

19     the reasons I've already alluded to.

20             Now a practical example of this, again, I believe Mr. Bourgon

21     dealt with, and he's, to some extent, taken away my thunder, because he

22     dealt with assertions or submissions made by Mr. Mitchell when he was

23     dealing with Mr. Popovic's case at 34151, in relation to the

24     Witness Acimovic.  Now, obviously this witness had absolutely nothing to

25     do with General Gvero's case, and again I'm just showing this as a good

Page 34690

 1     illustration of what I mean.

 2             The difficulty the Trial Chamber has with a witness such as

 3     Acimovic is to determine the facts from the fiction.  The difficulty is

 4     all the greater when, if you're going to use what he says against an

 5     accused, you're going to have to be satisfied beyond a reasonable doubt

 6     that what he says is true, whereas the opposite, of course, is not the

 7     case.  I've already made the point several times.

 8             Now, Mr. Mitchell, in fairness, goes on in his submission and

 9     makes some attempt to explain why Acimovic is reliable on the issue in

10     question, and I'm not going to get into that, but it's a very rare --

11     perhaps the only example in this case of where my learned friend sitting

12     on the other side of this courtroom have sought to help you in that way.

13     They failed to do that lamentably.  They leave you in a complete state of

14     quandary as to how you're meant to size up the conflicting and

15     contrasting interests of these particular witnesses.

16             In this regard, I'd mention a further comment of Mr. Bourgon's,

17     in fact on the same page of 34866.  He said this:

18             "We are confident that the Trial Chamber will have no difficulty

19     in identifying the credible and reliable witnesses amongst them."

20             Now, Your Honours, with the greatest respect, and I mean what I

21     say, we have absolutely no doubt, that is, the Gvero Defence, that you

22     will try your very best in this regard, but we do not really share

23     Mr. Bourgon's confidence.  It's not that we don't trust you, because the

24     same point applies to all tribunals of fact, all courts, but the reality

25     is it's often very difficult to discern when someone is telling the

Page 34691

 1     truth, when they're not, when they're lying, when they're trying to

 2     obfuscate.

 3             And it reminds me of a story.  When I was a law student, part of

 4     my studies were trips to courts, and I remember going once with my group

 5     of fellow students to a court - I think it was a civil court, it wasn't

 6     even a criminal one.  And when the litigants left, the rather elderly

 7     judge turned to us students and he said, "I was at the bar for 25 years

 8     and I've been on the Bench for 20 years, and what depresses me is after

 9     all this time I still cannot discern when someone is telling the truth."

10             And it's a little anecdote, and excuse me if I'm giving evidence,

11     but it's no more than stating the obvious, because it illustrates the

12     difficulties we suggest you face, particularly in a case like this, when

13     witnesses have so many differing motives for telling the truth, for

14     lying, and something in between, as I've already said.

15             Now, I've made some remarks a little earlier about professional

16     judges and the advantage to an accused.  One of those advantages is we

17     are confident that when you say, in your judgement, We are satisfied

18     beyond reasonable doubt that Witness A is telling the truth, that you

19     will state why that is.  We are satisfied this witness is truthful

20     because of X, Y, and Z features.  That way, an accused knows precisely

21     why a piece of evidence about a particular witness or an assertion by a

22     witness has been relied upon, and that particularly applies, of course,

23     if you choose the testimony of a particular witness, the pick-and-choose

24     method that the Prosecution are inviting you to embark upon in relation

25     to so many of the witnesses they've called.

Page 34692

 1             Now, this has a particular application to one witness in the

 2     Gvero case, and that's General Milovanovic.  Both the Prosecution and the

 3     Gvero Defence, in various parts of their brief, rely on him quite

 4     heavily.  In paragraph 55 of their brief, the Prosecution say that

 5     Milovanovic "was evasive and less than candid" about Directive 4.  Later

 6     on, they say that this document "would have incriminated him."  And then

 7     they say his testimony "be regarded with great caution on this point."

 8     But the Prosecution brief elsewhere is literally peppered with references

 9     relying upon him.  As far as we could make out, there were 61 such

10     references as to where the Trial Chamber should rely upon what he was

11     saying.  And as I've already said, not a word from the Prosecution as to

12     how you should weigh this out, how you should deal with this, why he's

13     reliable in relation to these 61 references, but not in relation to

14     Directive 4; nothing of any assistance to you in that regard.

15             And, Your Honours, I'm going to say it once again, that the

16     Defence can have it both ways in relation to this.  The Defence are

17     entitled to say, Yes, we -- if what he's saying may be true, some

18     reasonable possibility it's true, we rely upon it, you act in the

19     defendant's favour.  If, on the other hand, it's adverse to the accused,

20     it's got to be beyond reasonable doubt that it is true.  We can have it

21     both ways, and that's what we invite you to do when you come to

22     deliberate.

23             And General Milovanovic is pretty well like every Serb insider,

24     to use that slightly ugly expression but one which conveniently allows us

25     to know what type of witness we're talking about.  We suggest all of

Page 34693

 1     these witnesses need to be treated, to use the Prosecution's words from

 2     paragraph 55 of their brief, "with great caution."

 3             In passing, I should say that the Prosecution pretty well did the

 4     same in their closing arguments.  At 34060, they said he was unreliable,

 5     and on three occasions thereafter they rely upon him.  But as I've

 6     already said, they don't help you at all as to how you should weigh this

 7     up, how you should deal with it.

 8             Now, to state the obvious, but I will very briefly, Milovanovic

 9     was, by common agreement, the second-most senior and powerful officer in

10     the VRS.  For reasons that some might find hard to fathom, he has avoided

11     prosecution.  He has every motivation to shift the blame, subtly or

12     otherwise, to his subordinates, including Gvero.  He has every motivation

13     for obfuscation and basically avoiding the truth.

14             Could I, before I leave this topic, mention one other thing.

15     It's a slightly different point, but it's related.

16             I'm not going to review other witnesses who fit into the same

17     category, we suggest, as General Milovanovic, but when making your

18     assessments of some of these other witnesses I have described as Serb

19     insiders, please be very wary particularly in relation to some of the

20     lengthy re-examinations or re-directs conducted in 2007 of their own

21     witnesses by the Prosecution, and please bear in mind those

22     re-examinations in the light of the Appeals Chamber decision of the

23     1st of February, 2008, titled "Decision on Appeals Against Decision on

24     Impeachment of a Party's own Witness," where, to some extent, the

25     procedure adopted by this Trial Chamber was said to be wrong by the

Page 34694

 1     Appeals Chamber.  And bearing in mind those re-examinations were

 2     conducted under your guide-lines, just treat those passages with the

 3     utmost caution.  We would suggest as well that the Prosecution had a

 4     deliberate policy of waiting and having these extremely long

 5     re-examinations, some of which went on for many, many hours, improper

 6     re-examinations - I accept you ruled against us so far as that's

 7     concerned - but that particular decision is important when you come to

 8     weigh up that evidence.

 9             Perhaps that would be a convenient moment, Your Honours.

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

11                           --- Recess taken at 10.29 a.m.

12                           --- On resuming at 11.01 a.m.

13             JUDGE AGIUS:  Yes, Mr. Josse.

14             MR. JOSSE:  Your Honours, we'd now like to say a little bit --

15     another category of witness, witnesses I will describe as international

16     witnesses.

17             Now, of course, everything we've already submitted about other

18     witnesses applies to international witnesses, but specifically in this

19     regard Mr. Thayer, in his submissions, was at pains to defend somewhat

20     passionately the honour and integrity of both Colonel Kingori and

21     General Nicolai.  I'm briefly going to deal with Kingori now, and Nicolai

22     a little later, when I address the issue of the alleged threats to him.

23             So far as Kingori is concerned, he, of course, again doesn't

24     touch directly on my client's case, and in many ways, to the Gvero

25     Defence, he's a witness of secondary importance.

Page 34695

 1             In the Defence brief, at page 156, paragraph 181, we make some

 2     robust submissions about the quality of his evidence.  Mr. Thayer seeks

 3     to defend this gentleman's honour and courage.  We say that's really

 4     neither here, nor there; it's his testimony that matters, and his

 5     testimony was, to put it kindly, of extremely poor quality.  But, of

 6     course, that doesn't really take the matter that much further, because

 7     the issue again is:  Can you rely upon what he says, so far as the

 8     Prosecution is concerned, beyond a reasonable doubt?  And we submit the

 9     answer to that is emphatically:  No.

10             Now, we would invite you to look critically and carefully at

11     international witnesses.  They play an important part in Gvero's case.

12     Because they were not, themselves, the warring parties - that may be

13     putting it slightly inelegantly, but I'm sure you know what I mean - it

14     doesn't mean that they must be truthful, let alone accurate.  To raise

15     them to some sort of higher strata of witnesses, as Mr. Thayer, in

16     effect, seeks to do, is a mistake.  As individuals, we contend that they

17     are as prone to inaccuracy and exaggeration as any other human being, in

18     particular in the highly stressful and emotional situations that these

19     people found themselves in, in relation to the events surrounding this

20     case.

21             Furthermore, so far as this case is concerned, there is no

22     getting away from the plain fact that there was, to put it mildly, a real

23     motivation on the part of some of these international witnesses to

24     down-play any moral culpability, perceived or real, by either themselves

25     or other members of the international community that their actions or,

Page 34696

 1     more likely, inactions contributed even in some small way to the events

 2     that we've heard about over the last three years, and in particular, of

 3     course, the mass murder.  Put simply, we suggest you need to examine the

 4     evidence of many of these witnesses with a highly-critical eye.

 5             We can put it no better than a quote that I put to Edward Joseph

 6     on the 24th of August, 2007, at the end of my cross-examination of 14262.

 7     The quote, in fact, in the transcript is slightly wrong, and the

 8     quotation comes from the book "Death of Yugoslavia," in the

 9     acknowledgment section of that book by Little and Silber, a

10     highly-acclaimed account of the war.  And what the author said there and

11     what I put to Mr. Joseph was as follows:

12             "To write any contemporary account of the Yugoslav wars is to

13     navigate the thick waters not so much of deliberate dishonesty but of a

14     contrived self-deceit.  This applies not only to many of the combatants,

15     but also, sadly, to those who came with good intentions to try to make

16     peace."

17             Your Honour, we echo those words and adopt them by way of comment

18     about witnesses in this case, in general, and international witnesses in

19     particular, and we suggest that they are sentiments and words well worth

20     bearing in mind throughout your deliberations.

21             I'm going to move on to a completely separate topic and, in a

22     moment, deal with some errors that we allege in the Prosecution brief.

23     But before I do that, on behalf of my team, let me hold my hands up and

24     say we made a rather bad mistake in our brief, and I think Mr. Thayer had

25     spotted it but was a gentleman enough not to mention it to you.

Page 34697

 1             Unfortunately, our paragraph numbering goes wrong.  It starts

 2     again on at least two occasions.  And so in order to refer to our brief,

 3     it's necessary to refer to the page number and the paragraph number.

 4     Mr. Thayer was good enough to do that, without drawing your attention to

 5     it.  As I say, I've not actually spoken to him, but I suspect he spotted

 6     the point, and I'm grateful to his courtesy in that regard.

 7             So far as the Prosecution brief is concerned, they rely on 6D284,

 8     a document which was not admitted into evidence.  That's at page 49,

 9     footnote 344 of their brief.  It was put, in part, to Kosovac at T-30387,

10     but wasn't actually tendered into evidence.

11             Next, at paragraph 1754, footnote 4248, the Prosecution say that:

12             "When Mladic and Milovanovic were away, people will report to

13     Gvero."

14             They cite in support of this Milovanovic, but what he actually

15     said was that they would report to either General Djukic or General Gvero

16     as the most senior members of the Main Staff when Mladic or Milovanovic

17     were away.  That's at 12305.

18             Next, paragraph 1775, footnote 4295, the Prosecution have relied

19     on the evidence of Skrbic to say that Mladic also knew that Gvero was at

20     the Pribicevac IKM.  Skrbic actually said 15619 the quote "General Mladic

21     should have known" whether an assistant commander would go to an IKM.  He

22     did not say, in the particular instance, that he did, in fact, know

23     whether Gvero went to that IKM at that time.

24             Next, at paragraph 1801, the Prosecution state, in relation to

25     Gvero's alleged order P45, the quote:

Page 34698

 1             "He took a direct role in the capture and detention of Muslim

 2     prisoners and personally branded the Muslims as inveterate criminals and

 3     villains."

 4             However, that's not a fair characterisation of that document,

 5     which of course the Defence suggest there's insufficient evidence to

 6     attribute to General Gvero in any event.  What the document said was

 7     amongst them are -- let me correct that, let me get it right.  Among them

 8     are inveterate criminals and villains.

 9             In passing, when dealing with that particular assertion in

10     paragraph 10 -- 1801, the Prosecution say:

11             "This order undoubtedly led to innumerable abuses by VRS soldiers

12     against Muslims from the column."

13             This, we suggest, Your Honours, is pure hyperbole, it's totally

14     without support in the evidence, it's not a reasonable conclusion at all,

15     let alone one proved beyond reasonable doubt.

16             Our next point relates to paragraph 1806, footnote 4342:  The

17     Prosecution state that Tolimir's proposal, P192, and Mladic's final

18     order, 5D-P35, also known but not admitted as P2897, of 13th of July,

19     went -- the fact that it went to Gvero was not a fluke because it was

20     wholly within Gvero's competencies, and in the paragraph I've just given

21     they cite for this proposition Skrbic's testimony at 15616 to 15617, and

22     they say:

23             "General Skrbic testified that points 1 and 4 of Mladic's final

24     order fell within Gvero's remit."

25             This is, in fact, misleading, as Skrbic was only shown P192.  He

Page 34699

 1     wasn't shown 5D-P35, which, as I've already said, is also the same as

 2     P2897.  The point is that 1 and 4 of these two documents are completely

 3     different, they say completely different things.  They've confused the

 4     tenor of Skrbic's testimony.  The relevant bit I'm going to read to try

 5     and help unravel this confusion, the question was:

 6             "All right.  And then you believe that under point 1, prohibiting

 7     access to all unauthorised individuals, filming and photographing of the

 8     prisoners, that parties would be General Gvero's task?"

 9             And Skrbic's reply was:

10             "It falled under the sector led by General Gvero, but only this

11     second part, filming and photographing prisoners, because the banning of

12     all uninvited persons is something the military police were to perform."

13             I hope that clarifies it.

14             At paragraph 1807, footnote 4346, the Prosecution state that

15     Tolimir addressed this new proposal to Gvero because he was the most

16     senior general.  They cite Milovanovic's testimony at 12368 in support.

17     In fact, Milovanovic only said:  "Probably, I think," because Gvero was

18     the oldest officer -- the oldest general in the Main Staff.

19             The next topic I'd like to briefly address, Your Honours, is

20     something that I have alluded to before, I think, in oral submissions

21     rather than written submissions, and that is the Appeals Chamber decision

22     in the Prlic case of the 26th of February, 2009, titled "Presentation of

23     Documents by the Prosecution in Cross-examination of Defence Witnesses."

24     We suggest that this decision has clarified this particular subject, and

25     had that decision been known at an earlier stage of this case, it would,

Page 34700

 1     we contend, significantly have affected the introduction of a large

 2     number of documents admitted on the application of the Prosecution

 3     post-98 bis.  The reality is that the test that this Trial Chamber set

 4     down, in its decision of the 17th of December, 2008, is very different to

 5     the law as now set down and clarified by the Appeals Chamber.

 6             In the light of the Appeals Chamber decision, we contend that you

 7     must examine all material introduced by the Prosecution post-98 bis with

 8     the greatest of circumspection and, in particular, in the light of the

 9     test as laid down by the Appeals Chamber.  And this leads on to another

10     legal issue, which is that of notice.

11             The Defence have complained, in their final brief, about the

12     changing nature of the Prosecution case, both by way of pleading in the

13     indictment and also by way of notice.  This included Zepa and the

14     shifting allegations as to General Gvero's alleged presence there dealt

15     with at page 262 to 265 of the brief.  Our basic point is:  Why have a

16     particularised indictment at all?  Gvero's alleged contribution to the

17     JCE is set out in paragraph 76.  These were the areas the Defence needed

18     to address.  These are the areas, we suggest, of Gvero's alleged

19     contribution that you need to determine in your judgement.  The

20     importance of this does not need stressing or explaining.

21             The Defence asked rhetorically:  What is the point of

22     particularisation at all if the Prosecution case can chop, change, shift

23     in the way that it has?  We adopt what Madame Fauveau said so far as this

24     topic is concerned, in particular her reliance on this Trial Chamber's

25     own decision of the 31st of May, 2006, and, in effect, the failure by the

Page 34701

 1     Prosecution to abide by that particular decision.

 2             Perhaps I could move on and deal with this in a slightly more

 3     specific way, so far as some of the allegations that are now made against

 4     General Gvero that are of real significance.  The first is so far as

 5     convoys are concerned.

 6             The Prosecution make much of Gvero's alleged role in restricting

 7     UN and humanitarian aid resupply convoys in paragraphs 217 to 218, 223,

 8     and 1765 to 1769 of their final brief.  This allegation does not appear

 9     in the indictment.

10             Whilst the Defence have to some degree addressed the

11     Prosecution's vague pre-trial brief assertions as to Gvero's alleged role

12     in restricting fuel to UNPROFOR at pages 188 to 193 of our brief, this in

13     no way compensates for the prejudice now caused to the Defence by having

14     no notice of a wider convoy and humanitarian aid allegations.

15             If it was the Prosecution's case that Gvero contributed to the

16     alleged JCE by assisting to restrict UN and humanitarian aid resupply

17     convoys, then we suggest the law on this is abundantly clear from the

18     Kupreskic appeal judgement, excuse me, at paragraphs 89 to 90.  The acts

19     and conduct of Gvero in allegedly restricting such convoys should have

20     been specifically set out in paragraph 76 of the indictment.

21             We note Mr. McCloskey's response at 34313 to a similar point

22     raised in the Miletic Defence, and we contend this has no application to

23     Gvero's case.  This is because Mr. McCloskey pointed to paragraphs 50 to

24     54 of the indictment as particularised in the convoy allegations against

25     Miletic in paragraph 75.  Of course, we don't comment on whether or not

Page 34702

 1     paragraphs 50 to 54 do put Miletic on sufficient notice, which was also

 2     cross-referenced in paragraph 76.  I beg your pardon.  But they plainly

 3     do not provide sufficient specificity of the case against Gvero, as he's

 4     mentioned nowhere amongst them.

 5             In addition to that, we contend that Mr. McCloskey made no

 6     mention of the convoy allegations in his opening statement in relation to

 7     Gvero, which was something he relied upon when replying to

 8     Madame Fauveau's submission.

 9             We urge the Trial Chamber to entirely disregard the Prosecution

10     brief as to Gvero's alleged role in restricting UN and humanitarian aid

11     resupply convoys.  This allegation has not been properly pleaded, and we

12     have not been put on proper notice as to its existence; two separate

13     points, I'm bound to say.

14             A similar point arises so far as Directive 7 is concerned and

15     what the Prosecution now say is an important issue; namely, Gvero's

16     alleged attendance at the meeting in Bijeljina and Zvornik in 1992.  We

17     object to the Prosecution allegations, and I'm going to be specific here,

18     in paragraphs 28 to 32 of the Prosecution's final brief, 56 to 61, 70 --

19     1757 to 1763 and 1765, as well as their closing submission at 34051 and

20     then a few pages later at 34056, as to Gvero's purported knowledge of and

21     steps towards implementing the six strategic goals prior to the 8th of

22     March, 1995.  These allegations are absent from the indictment, the

23     Prosecution pre-trial brief, as well as the Prosecution's opening

24     statement.  We submit this is an example of prejudicial surprise.

25             The Defence, to flesh this out, if I may, objects to the

Page 34703

 1     Prosecution's use of these matters not as mere historical background

 2     utilised to place the material facts pleaded against Gvero in context,

 3     but rather their purported use by the Prosecution and allegations

 4     material to the common criminal objective of the JCE to forcibly transfer

 5     the Muslim populations of Srebrenica and Zepa.  We suggest that the

 6     accused is entitled to proper particularity of the allegations in the

 7     indictment, and we also note that the Trial Chamber has the power to

 8     exclude evidence on the basis that the principles of fairness require due

 9     notice or uncertainty, and further support for this can be found in the

10     case I've already cited, Kupreskic, 23rd of October, 2001,

11     Appeals Chamber judgement at paragraph 92.

12             Finally on this topic, the Defence also make a related but

13     broader submission that any evidence related both to Gvero's attendance

14     at and knowledge gleaned from the Bijeljina and Zvornik meetings, in

15     addition to his knowledge of the six strategic goals and Directive 4, is

16     relevant only for background and context to the charges in the

17     indictment.  This is because on any reading these matters fall temporally

18     outside the scope of the indictment.  For the avoidance of doubt, we

19     contend this applies to paragraph 28 to 32, 56 to 61, 70, 1757 to 1762 --

20             THE INTERPRETER:  Thank you for slowing down.

21             MR. JOSSE:  -- of the Prosecutions final brief.

22             JUDGE AGIUS:  I heard the interpreters --

23             MR. JOSSE:  I'm grateful.

24             JUDGE AGIUS:  -- thanking you for slowing down.

25             MR. JOSSE:  I apologise to the interpreters, and I'm grateful to

Page 34704

 1     Your Honours for bringing that to my attention.

 2             The earliest date --

 3             JUDGE KWON:  Probably you need to repeat the last part, referring

 4     to the para numbers.

 5             JUDGE AGIUS:  For the record, yes.

 6             MR. JOSSE:  28 to 32, 56 to 61, 70, as well as 1757 to 1762.

 7             The indictment clearly states that the earliest date upon which

 8     the common criminal objective of the JCE to forcibly transfer can come

 9     into existence is on the 8th of March, 1995.  The Defence also view as

10     instructive in this regard the fact that the only mention of the six

11     strategic goals and Directive 4 is outlined in the indictment under a

12     heading "Background," and that's at paragraphs 19 to 21 of the

13     indictment.  We submit that the Trial Chamber ought to limit its reliance

14     upon such evidence to mere clarification of the background and context of

15     the charges in the indictment, at the most.  It would be improper to rely

16     upon such evidence in order to establish the individual criminal

17     responsibility of the accused.

18             On a related but different point, Your Honours, we wish to draw

19     your attention to what we regard as sweeping conclusions made by the

20     Prosecution at the integral elements of the alleged JCE, which are simply

21     unsubstantiated by evidence.  We submit that the assertions that I'm

22     about to refer to are conclusions which are critical to determining the

23     individual responsibility of our client, that is, his knowledge of the

24     alleged common criminal purpose of the JCE, and they indicate the dearth

25     of evidence against him so far as the charges in the indictment are

Page 34705

 1     concerned.  In particular, we refer to paragraph 1744, where the brief

 2     states:

 3             "From his position in the Main Staff since its inception, Gvero

 4     was fully informed of and actively participating in the RS and VRS policy

 5     to remove the Muslim civilian population from Eastern Bosnia, as set

 6     forth in the six strategic objectives and Directive 4 and 7."

 7             A similar point arises, so far as paragraph 1747 is concerned,

 8     where the Prosecution, I'm going to paraphrase, allege Gvero's

 9     responsibility to inform "the officers and troops of the important goals

10     of the RS and VRS of separating the Muslim population from the Serbian

11     population, and the reasons behind this goal."  And, finally,

12     paragraphs 1760, which deals with the discussions at Bijeljina and

13     Zvornik, the Prosecution say:

14             "There can be no doubt that Gvero has specific knowledge of the

15     policy of ethnic cleansing, as set out in Directive 4."

16             Now, the Gvero Defence, Your Honours, are between a rock and a

17     hard place because we have made these complaints to you and we ask you to

18     rule in our favour upon them, but nonetheless some of these issues have

19     arisen.  In particular, we suggest they've arisen very late in this case.

20     And such evidence as there are, it may be will be against us, and we feel

21     we'd be failing in our duty to our client not to address these issues.

22             So notwithstanding our submissions as to lack of notice, the

23     changing nature of the Prosecution case, the fact that much of this case,

24     we suggest, is unsupported by admissible evidence, we take a

25     belt-and-braces approach, and I'm going to pass the bat on to

Page 34706

 1     Mr. Krgovic, who is going to address you on some of the issues that I

 2     have just alluded to.

 3             JUDGE AGIUS:  Thank you, Mr. Josse.

 4             Mr. Krgovic.

 5             MR. KRGOVIC: [Interpretation]  Good morning, Your Honours and

 6     distinguished colleagues.

 7             Your Honours, as my colleague Mr. Josse has just said, the

 8     question of General Gvero's part in the removal of the population of

 9     Eastern Bosnia was posed for the first time by the Prosecutor in his

10     final brief, where, in detail, he presented accusations against him

11     linked to this topic.

12             With regard to the six strategic goals which the Prosecutor, in

13     his final brief - transcript page 34050 - calls the gospel truth of

14     ethnic separation, the position of the Defence is presented in the final

15     brief on page 121, and we consider that the Trial Chamber in the

16     Krajisnik trial made a reasonable ruling and determined that the

17     strategic goals do not have an unlawful character, nor do they contain

18     anything incriminating within them.

19             Linked to those strategic goals, in paragraphs 1757 of their

20     final brief, the Prosecutor mentions the meeting in Bijeljina in

21     September 1992, which, according to the allegations of the Prosecution,

22     was attended by General Gvero.  Through the Prosecutor's interpretation

23     of that particular meeting, the six strategic goals become the main topic

24     of that meeting.  However, Your Honours, that is just not true.

25             If you look at the testimony of Witness Simic, for

Page 34707

 1     example - transcript page 28649 to 28651 - you will see that the purpose

 2     of that meeting was quite different, the conflict between paramilitary

 3     troops and the Army of Republika Srpska in Bijeljina, and the strategic

 4     goals are mentioned just in passing.  So extracting that portion of the

 5     meeting, for which the Prosecutor has no evidence to show whether Gvero,

 6     in fact, took part, leads you to make the wrong conclusion, and that is

 7     whenever there is mention of those six strategic goals in any context,

 8     that that has to be the main topic and that the VRS has no better

 9     business to attend to but to discuss the subject of ethnic cleansing.

10             Carrying on along the same lines through paragraph 1759 and 1760

11     of the Prosecution brief, the Prosecutor deals with the seminar in

12     Zvornik and tries to link it up to Directive number 4.  However, Your

13     Honours, there is not a shred of evidence to show that that meeting had

14     anything to do with Directive number 4.  And if you look at the contents

15     of the order for preparation of the military/political consultation in

16     Zvornik, which is P4221 and P4222, you can see that nowhere is the topic

17     of this seminar Directive number 4.

18             Your Honours, Directive 4, as the witnesses has said, is a

19     confidential document and represents a state secret.  Witness Dragica

20     Masal - transcript page T-29055 - spoke about the treatment of document

21     which are labeled "State Secret," as is the case with Directive 4.  The

22     witness clearly sated that apart from the individuals who were directly

23     included in the drafting of documents of this nature, nobody was allowed

24     to know of the contents of those documents.  The drafters of those

25     documents are duty-bound to keep them secret.  And with respect to their

Page 34708

 1     knowledge about the subjects of these documents -- treated in these

 2     documents, they had to keep them to themselves and were not allowed to

 3     disseminate.  That is on transcript page T-29055.  Bearing all this in

 4     mind, Your Honours, it would be highly unlikely and improbable that a

 5     large meeting of the type the meeting was in Zvornik, attended by many

 6     people from different social structures, civilians, soldiers, officers

 7     holding different ranks from different units, to openly discuss top-level

 8     state and military secrets.

 9             Furthermore, testifying on the 25th of February,

10     2009 - transcript page 32075 - Witness Pandurevic, when asked by the

11     Prosecutor, responded and said that there was no mention of Directive 4

12     at that meeting, and no other witness confirmed that any directive was

13     mentioned at all, nor did the Prosecution move evidence in that

14     direction.  For wont of a better, the argument that the Prosecution uses

15     to establish a link is General Zivanovic's speech in which he mentions

16     some duties and assignments with respect to certain built-up localities

17     in Bosnia.  However, this argument is insufficient because the duties and

18     the settlements that are mentioned in General Zivanovic's speech do not

19     coincide with the duties and localities mentioned in Directive 4.

20             According to Exhibit P4402, Zivanovic mentioned the following

21     places:  Visnjica, Sapna, Teocak, Cerska, Zepa, Srebrenica, and Gorazde.

22     In order to contrive an artificial link with Directive 4, in which only

23     four of these seven settlements are mentioned, the Prosecutor, in his

24     brief, intentionally fails to mention the remaining three settlements.

25     He just takes what suits him in order to make this link, which, when we

Page 34709

 1     look at the context of Zivanovic's entire sentence, leads us to doubt as

 2     to what was actually said at the seminar and discussed at the seminar in

 3     Zvornik.

 4             Anyway, the Prosecutor practically acknowledges the shortcomings

 5     in para 17660, and he says that in the presence of a number of

 6     individuals from the political and military leadership, the plans and

 7     goals from Directive 4 must have been discussed.  It was in English "must

 8     have been discussed," which, Your Honours, the Defence would like to

 9     invite the Trial Chamber to see that this -- that the "beyond reasonable

10     doubt" test has not been proved.

11             Your Honours, looking at all this and bringing into -- and

12     linking up these two meetings, the Prosecutor is contriving evidence,

13     wanting to show that at that time there was a consciousness on the part

14     of General Gvero.  And I'd like to say that before this meeting in

15     Bijeljina, General Gvero sends a letter on the 20th of June, in fact,

16     1992, which is 6D129, in which he cautions for the umpteenth time what

17     kind of treatment the civilian population should receive in

18     Bosnia-Herzegovina, especially those of different ethnicities.  Now, if

19     he's sending out this caution and warning people about this matter, he

20     states his attitude, would he then discuss matters in this way about

21     strategic goals in the sense that the Prosecution views this?

22             So between these two events, on the 16th of October, 1992,

23     General Gvero sends guide-lines for punishing the perpetrators of

24     criminal acts to the military prosecutor.  Does that mean that he's

25     sending proposals to be found guilty, himself, if he refers to Directive

Page 34710

 1     4 or the goals in that directive, which are questionable?  In one way, he

 2     takes part in that; in another way, he proposes that he be sanctioned

 3     himself.

 4             Your Honours, I'm now going to deal with the alleged

 5     participation of General Gvero in the writing of Directive 7.  Now, this

 6     accusation was first put forward in the Prosecution final brief, and this

 7     accusation, that General Gvero took part in the drafting of Directive 7,

 8     is not mentioned by the Prosecutor in the indictment or in the pre-trial

 9     brief or, indeed, in his opening statement.  His position about this

10     matter, the Prosecutor changes at the end of this trial, as my learned

11     friend Mr. Josse said, that General Gvero must have taken part in the

12     writing and drafting of that directive, because allegedly he used the

13     full method, as it was called, in its elaboration.

14             Now, this Court has heard a number of witnesses who testified

15     about --

16             JUDGE AGIUS:  What's the problem, Mr. Josse?

17             MR. KRGOVIC: [Interpretation]  Let me repeat.  The paragraph is

18     1765.

19             JUDGE AGIUS:  Okay.

20             MR. KRGOVIC: [Interpretation]  It wasn't in the transcript.

21             JUDGE AGIUS:  All right.  Thank you.

22             MR. KRGOVIC: [Interpretation]  Among these prosecutors

23     [as interpreted], we have Petar Skrbic, Mirko Trbic, Nedeljko Trkulja,

24     and Defence witnesses Ljubo Obradovic, Novica Simic, Ratko Miljanovic,

25     and Slobodan Kosovac.  However, even a superficial analysis -- let me

Page 34711

 1     repeat, for the record, the names of those witnesses.  Petar Skrbic,

 2     Mirko Trbic, Nedeljko Trkulja, and Miletic's witnesses Ljubo Obradovic,

 3     Novica Simic, Ratko Miljanovic and Slobodan Kosovac.

 4             However, if a superficial analysis of their testimony brings into

 5     doubt the conclusion whereby all these witnesses are just -- well, these

 6     witnesses are making only theoretical comments on the general nature in

 7     which documents in the VRS were drafted, and according to their own

 8     acknowledgment, none of these witnesses in their military careers ever

 9     took part in the writing of a single directive, nor did they write a

10     single directive.  Therefore, none of these witnesses, when referring to

11     directives in general, were not in a position to directly confirm --

12     personally confirm the joint thesis of the Miletic and Prosecutor's

13     defence that Directive 7 was allegedly drafted by means of what was

14     called the full method.

15             First of all, Your Honours, from the title of Directive 7 itself,

16     we see, without a doubt, that it is a directive of the Supreme Command,

17     which leads us to a separate methodology in the elaboration of that

18     document.  With respect to the manner in which directives were written in

19     general, the Prosecutor, in his final brief, paragraph 1672, wrongly

20     interprets its own witness, Milovanovic, when he says that the assistants

21     were consulted with respect to the drafting of the directive.  However,

22     Milovanovic, in his testimony, clearly states that when the guide-lines

23     were given by the Supreme Command, then it is not indispensable and

24     assistant commanders need not be consulted, which excludes the

25     application of the so-called full method.  And this is to be found on

Page 34712

 1     transcript 12274 to 12276 of the testimony.

 2             The only valid written piece of evidence as to how directives

 3     were written, including Directive 7, who provided the guide-lines and how

 4     the information necessary was collected, was 6D311.  Those are bullet

 5     points proposed to the president of the Republika Srpska for the

 6     directive on special measures in the Eastern Bosnia Corps zone of

 7     responsibility.  Witness Novica Simic first confirmed that those were the

 8     bullet points for Directive 7, and then following an objection from the

 9     Miletic Defence, he changed his answer.  But the document speaks for

10     itself.  That's transcript page 28610.

11             Your Honours, if the common position of the Prosecutor and the

12     Miletic Defence on the application of the full method in the drafting of

13     Directive 7 were correct, then the following two qualified witnesses

14     would have, in view of their positions at the time, would have to be

15     involved in the drafting of the directive.  One is Witness Skrbic,

16     assistant commander for personnel and mobilisation of the VRS Main Staff

17     at the time of the drafting of Directive 7 and Directive 7.1.  He says,

18     however, that he had never seen Directive 7 before he was shown it by the

19     Prosecution, even less had he participated in its drafting; transcript

20     page 15517 and 15518.

21             Witness Miljanovic, the assistant of General Djukic and assistant

22     commander for logistics of the VRS Main Staff, said that in March 1995,

23     he had not seen or participated in the drafting of Directive 7 and 7.1;

24     transcript page 28957.

25             Furthermore, Witness Obradovic and Witness Kosovac agree that the

Page 34713

 1     Directive 7, itself, does not contain any clues as to how the directive

 2     was written; transcript pages 30256 to 30258.

 3             Regardless of this, and attempting to confirm his theory on the

 4     so-called full method of drafting of Directive 7, the Prosecutor quotes

 5     part of the Miljenko Lasic evidence in paragraph 1765, where the witness

 6     speaks in very general terms on the work of the Command; also transcript

 7     page 28475.  Ignoring this, as I said, the Prosecutor quotes part of the

 8     evidence of Miljenko Lasic concerning the work of the Command.  There is

 9     no doubt that Witness Lasic was qualified to speak about this.  From June

10     1992 until May 1993, he was assistant chief for operations and training

11     at the VRS Main Staff; transcript page T-21723 and Exhibit P3178.

12             Referring to Lasic, the Prosecutor deliberately avoids to comment

13     on the other answers provided by the same witness regarding Directive 7

14     and Directive 4.  Witness Lasic clearly says that he had no knowledge on

15     how the directive was drafted; transcript pages 21807 and 21808.

16             With reference to Directive 4, which was written at a time when

17     the witness worked at the Main Staff, himself, Lasic clearly denies that

18     the full method was applied.  He testifies that Directive 4 was written

19     by the chief of staff himself so that neither he, Lasic, although he was

20     a member of the same staff and, ex officio, authorised to draft such

21     documents, nor others were acquainted with any details from this

22     directive; transcript page T-21829.

23             Unlike the aforesaid witnesses, who had never participated in the

24     drafting of directives themselves, this Court has also had two persons

25     who personally wrote some of them.  Prosecution Witness Milovanovic

Page 34714

 1     confirms that he personally drafted Directive 4; T-12195 and T-12199.

 2             The Miletic Defence witness Dragica Masal, an operations officer

 3     of the Main Staff, drafted Directive 9, describing it in his testimony as

 4     the result of the abridged method of work by the VRS commander, chief of

 5     the Main Staff of the VRS, and the witness, himself, as operations

 6     officer; T-29069.  On transcript pages T-1295 says -- the Prosecution

 7     Witness Milovanovic says that he personally drafted a directive as chief

 8     of the Main Staff.  Where are the full methods here, where is team-work,

 9     where is the participation of other people?  Your Honours, these two

10     witnesses confirm, in no uncertain terms, that only the person designated

11     by the commander, usually the chief of staff, is the person who drafts

12     the directive.

13             All these theories about team-work in the Command are blown out

14     of the water when we start discussing the coming into being of Directives

15     4 and 7, which are key issues in this case.  Look, Your Honours, at

16     evidence of General Djukic.  You will see that what Djukic said about the

17     writing of directives and the work of the staff is confirmed by

18     Milovanovic and Dragisa Masal; Exhibit 6D313 and 6D315.

19             The argument used by the Prosecutor, in corroboration of his

20     theory about the full method and the implication of Gvero in the writing

21     of Directive 7, is the fact that they include point 6.7, which bears the

22     title "Moral and Psychological Support of Combat Activities."

23     Insufficient, but the only argument that the Prosecutor has.

24             According to the Miletic and Prosecution logic -- just one

25     transcript correction.  It was point 6.1.  The contents of this paragraph

Page 34715

 1     would have to emanate, logically, from Gvero's organ for morale,

 2     religious and legal affairs.  This argument is easily overturned by the

 3     testimony of Prosecution Witness Skrbic; T-15549, and Miletic's expert,

 4     Kosovac, T-30243 to 30426.  Both these witnesses testified that apart

 5     from the heading, no part of this paragraph falls into the remit of the

 6     organ for morale, nor was it written by a qualified and trained military

 7     person, which General Gvero certainly was according to the compliment he

 8  received from the Prosecutor that he was qualified and trained for his job.

 9  Your Honours, not only is there no evidence in this case to show that

10  General Gvero participated in the writing of Directive 7, there is equally

11  no evidence that he was ever acquainted with it. Let me go back for a moment

12  -- Your Honours, I'm sorry, there's an interpretation issue.  Just a moment

13  What I said was that there is no evidence that General Gvero was acquainted

14  with Directive 7.  Let me go back for a moment to the evidence of Skrbic and

15     Miljanovic on another important point.  Both these witnesses, members of

16     the Main Staff, testify that they had not seen either Directive 7 or

17     Directive 7.1.  The evidence of Masal and Obradovic will assist us in

18     understanding how it was possible that two members of the Main Staff had

19     never seen such an important document.

20             As I said, speaking about the meeting in Zvornik,

21     Witness Masal - transcript page 29055 - speaks about documents marked

22     "state secret" or constitute a state secret, as was the case with

23     Directives 4 and 7, and he explains that save for the persons directly

24     involved in the drafting of such documents, no one else should know

25     anything about their contents.  Witness Obradovic explains that Directive

Page 34716

 1     number 7 was kept in a special safe box; transcript 28343.

 2             Furthermore, Witness Masal explains that anyone and everyone

 3     involved in the writing of a directive must sign it to confirm their

 4     participation in the drafting or to indicate authorship.  If the joint

 5     theory of the Prosecution and the Miletic Defence is that the directive

 6     was drafted by the Main Staff, why -- there is no indication that it was

 7     a product of the Main Staff.  To put it briefly, it has not been proven

 8     beyond a reasonable doubt that Milan Gvero participated in the drafting

 9     of Directive 7.

10             As far as the role of General Gvero in the restriction of

11     humanitarian aid is concerned, it is not superfluous for me, I believe,

12     Your Honours, that Milan Gvero was not charged with restricting

13     humanitarian aid.  However, the Prosecution trial brief is full of

14     allegations in this regard.  Let us start in chronological order.

15             The Prosecution invokes two documents from December 1994, that

16     is, outside the context and the time of the indictment, trying to show as

17     evidence of Gvero's alleged participation in authorising convoys of

18     humanitarian aid, although the said documents have absolutely nothing to

19     do either with the convoys or with the humanitarian aid.

20             Documents P4153 and P4152, Your Honours, speak of individuals and

21     vehicles crossing the state border between Republika Srpska and

22     Yugoslavia; that is to say, the route from Belgrade to Sarajevo, Zvornik,

23     Bratunac, and Srebrenica, Banja Koviljaca, and Republika Srpska.  In both

24     these cases, we're dealing with information about the crossing of state

25     borders by individuals and not goods.  There are no humanitarian convoys,

Page 34717

 1     no humanitarian aid, or humanitarian goods.

 2             Paragraph 1767 of the Prosecutor's final brief once again implies

 3     the restriction of humanitarian assistance, once again unfounded.  When

 4     Witness Kralj explained -- expounded on a Prosecution exhibit, and the

 5     number was P4036, he explained, in response to my question, what this

 6     document was about, because the Prosecutor had pulled it out of context.

 7     And that is on transcript page 29378 and 29379.  And here they were

 8     discussing meetings of the commission for the implementation of the peace

 9     agreement.

10             I should like to remind Your Honours of the testimony of

11     Witness Kralj from that portion of the transcript, where General Gvero --

12     saying that General Gvero was a member of the commission for the

13     implementation of the peace agreement in Bosnia-Herzegovina from December

14     1994 to the end of April 1995, except in March 1995 when, because of an

15     injury during a traffic accident, he was absent from the Main Staff and

16     was not performing his duties there.  And that is on page T-24099 of the

17     transcript.

18             All the activities of General Gvero, as a member of the said

19     commission, evolved during this particular period of time.  At that time,

20     during that period, that is to say, from December to April 1994, with the

21     exception of the month of March, you will see that his name was mentioned

22     in connection with these activities.

23             When the Muslim side, at the end of April 1995, as is common

24     knowledge, in a unilateral way interrupted the agreement on a cease-fire,

25     the peace agreement was cut short and, therefore, General Gvero's

Page 34718

 1     activities in that regard.

 2             In our final brief, we deal in part with the meetings.  However,

 3     I'd like to remind you of Prosecution Exhibit P2936, page 2, item 7, and

 4     the agenda there.  In his final brief, the Prosecutor, when questioning

 5     General Smith, he depicted the meeting as saying that Gvero had come and

 6     talked about humanitarian aid, but just take a look at the agenda, point

 7     number 1, the continuation or prolongation or extension of the agreement

 8     on a cease-fire, a cessation of hostilities.  Just one sentence by

 9     General Gvero pulled out of context after the official part of the

10     meeting was over, and that helps the Prosecutor to try to show that Gvero

11     was implicated in the context of restricting humanitarian aid.

12             As a member of that commission, General Gvero attended various

13     meetings linked to the implementation of the peace agreement, and at

14     these meetings, Your Honours, meetings were agreed upon for regional

15     commissions in places throughout Bosnia-Herzegovina.  That is

16     Exhibit 5D1418.

17             In an attempt to depict General Gvero and to strike a link

18     between him and the restrictions on the humanitarian aid convoys, the

19     Prosecutor tries, by a handwritten addition on documents, to tie in Gvero

20     and his authority with respect to limiting and restricting those convoys.

21     Now, if you look at that document, itself, Your Honours, P4316, you will

22     see that the individual who has written in the portion and does not know

23     what the meeting was about, because they weren't present, is simply

24     seeking information from members of the commission in order to learn

25     whether what it says in the document was actually agreed at the

Page 34719

 1     commission meeting.  So it's not consultation; it's seeking information

 2     about whether this subject was discussed by the commission at its meeting

 3     or not.

 4             Furthermore, paragraph 1768 of the Prosecution's final brief

 5     attempts, yet again, to prove that Gvero knew and that he received

 6     various documents linked to the convoy.  Especially paragraph 1767 is

 7     characteristically contradictory.  The Prosecutor accepts the fact that

 8     Witness Kralj could not identify the initials on document P4036.

 9     However, he nonetheless says that General Gvero did initial the document,

10     as well as the following documents, P4028, P4015, P4039, P3999, and

11     P4040.

12             The Prosecutor tried to link this up by comparing the said

13     initials on P4036 with another, as he says, characteristic set of

14     initials on a document dating back to 1992 and linked to the treatment of

15     civilians and journalists, and that is 6D129, and another document from

16     1995, which concerns a peace mission.

17             Let's stay with 6D129 for a moment.  From the text of this

18     document itself, you will see that it is a document which Gvero compiled

19     and sent to the corps.  6D129 is a copy which was received in one of the

20     corps via a teletype, so they received a telegram, in actual fact.  It

21     would be completely unnecessary and illogical for General Gvero to send

22     this document to the corps from the Main Staff and that somebody received

23     it in a corps and then confirmed, by initialling it, its reception, the

24     reception of his own document.

25             We wish to emphasise at this point that it is absolutely

Page 34720

 1     inadmissible for the Prosecution to attempt, in this way, to link

 2     General Gvero to the mentioned documents.  If the Prosecutor wanted to

 3     prove and show General Gvero's participation through his initials, then

 4     he should have and could have done this during the long trial by calling

 5     in an expert -- handwriting expert, who would professionally analyse

 6     Gvero's handwriting and make his own conclusions on that.  The

 7     Prosecution deliberately failed to do that, and not only that, the

 8     Prosecutor had every opportunity, during the examination of

 9     Witness Kralj, to directly put it to the witness that in this specific

10     case it was, in fact, Gvero's signature, which, Your Honours, was the

11     objection I raised at the time, and there was the suggestion by the

12     President of this Trial Chamber that followed.  The Prosecutor once again

13     chose not to act upon it.  And this is on page 29346 of the transcript.

14             With an absence of compelling evidence, the Prosecutor is

15     guessing and saying that the initials belong to General Gvero.  That is

16     insufficient, because at the very least there is reasonable doubt as to

17     who those initials, termed characteristic initials, actually are.

18             Your Honours, to link up General Gvero's participation in the

19     work of the commission for the implementation of the peace agreement and

20     to approve humanitarian aid, absolutely -- are not absolutely

21     interconnected, because what would that standard of proof be?  It would

22     mean somebody is guilty for trying to implement a peace agreement which

23     is trying to achieve peace.  Is that guilt, is that blame?

24             Your Honours, I will end there.  Those are the facts set forward

25     by me with respect to the Prosecutor's allegations, and my colleague will

Page 34721

 1     continue.

 2             Thank you.

 3             JUDGE AGIUS:  Thank you, Mr. Krgovic.

 4             Mr. Josse.

 5             MR. JOSSE:  Your Honours --

 6                           [Trial Chamber and registrar confer]

 7             JUDGE AGIUS:  Sorry about that.  I'm just trying to make the

 8     conditions in the courtroom more comfortable, that's all.

 9             MR. JOSSE:  Well, I'm sure I, being on my feet, particularly

10     appreciate that.  Thank you, Your Honours.  I'm sure the Registrar will

11     deduct that from our time.

12             Your Honours, there's only one other topic that I'm going to deal

13     with in any detail at all, and then there are a few I'm going to deal

14     with absolutely in passing.

15             The topic in a little bit of detail is dealt with at

16     paragraph 282, page 204 of the Defence brief, and there we say the

17     following:

18             "The Defence say, as a starting point, that Milan Gvero did not

19     say that he would have the compound at Potocari and the surrounding areas

20     shelled.  Of this, all concerned can be sure."

21             Well, Your Honours, the Defence was wrong about that, because the

22     Prosecution's final brief on this very issue begins by continuing to

23     peddle this patently incorrect line, and that's at paragraph 1781.  It

24     was wrong because, fortunately for Gvero, the Muslims had intercepted

25     this conversation and recorded it verbatim.  That's P2374.  And the plain

Page 34722

 1     fact of the matter is Gvero simply did not say what Nicolai alleged and

 2     what, extraordinarily, the Prosecution continue to allege in their brief.

 3     It's almost as if they hadn't read the cross-examination of that witness.

 4             Now, Your Honours, the Prosecution go on in their brief and seek

 5     to justify this by quoting from Nicolai's Assen debriefing note of the

 6     18th of September, 1995.  And as a very minor aside, the quote at

 7     footnote 4309 is in evidence, but the actual document at footnote 4308 is

 8     actually not in evidence.  And the same applies to footnote 4306.

 9             But getting back to the substantive point, the use by the

10     Prosecution of this debriefing quote is hopeless.  I repeat what I have

11     said.  We know, from the transcript of P2374, that Gvero did not say

12     what's alleged in the debriefing note.  The debriefing note reads:

13             "Bombing the stream of refugees, the Potocari compound."

14             The fact that Nicolai was wrong about this so soon after the

15     event only goes to show how mistaken and unreliable he is.  And it was

16     demonstrated to him, as I've already mentioned, in cross-examination that

17     he was wrong.  And I've already said, and I make no apology for repeating

18     it, it's nothing short of bizarre that the Prosecution should continue

19     with this line.

20             We go on and say that this is highly illustrative of the very

21     thing that Mr. Thayer, in his closing arguments, alleged the Defence of

22     falsely accusing General Nicolai of; namely, bias.  Now, it's either that

23     or extreme confusion, or both.

24             You've heard me make some submissions about international

25     witnesses.  What I would say about General Nicolai is in response to

Page 34723

 1     Mr. Thayer's argument at 34080, when he took exception to what he called

 2     "an absolutely baseless personal attack" on Nicolai.  He claims there's

 3     no evidence of partiality on Nicolai's part.  Well, we suggest that the

 4     error just alluded to makes that, at the very least, a possibility.  But

 5     Mr. Thayer's defence of General Nicolai is really somewhat extraordinary

 6     when one contrasts what General Nicolai said and what Mr. Thayer says in

 7     his support with what General Smith said.  And let's remember,

 8     General Smith was Nicolai's direct superior.  Nicolai was his chief of

 9     staff.  And General Smith's whole attitude and enmity towards the Bosnian

10     Serb leadership was something he really accepted, you may think.  For

11     example, he said in evidence that he wasn't prepared to negotiate with

12     Mladic in June of 1995, whereas Janvier was, for example.  He accepted

13     extracts from his, Smith's, book --

14             JUDGE AGIUS:  Who was, for the transcript?

15             MR. JOSSE:  General Janvier.

16             JUDGE AGIUS:  Janvier, okay.

17             MR. JOSSE:  He accepted, this is General Smith, extracts from his

18     book put to him, 6D186, where he said in terms that he was at war -- or

19     perhaps I should say he was effectively at war with Mladic, and that's at

20     17749 of the transcript.

21             And you won't forget the quotation from Fortin's diary, the entry

22     of the 10th of July, 6D165, which was dealt with in private session and I

23     won't repeat, which is at 17785 to 86 of the transcript.

24             When you bear that in mind and what General Nicolai's superior

25     was saying, is Mr. Thayer seriously saying that there isn't the remotest

Page 34724

 1     possibility -- there's only a remotest reasonable possibility, that

 2     General Nicolai was a tad bit biased, that he didn't quite perceive

 3     things in the clean way that Mr. Thayer alleges?  Please bear that in

 4     mind when you come to weigh up General Nicolai's evidence.

 5             Now, whilst on the subject of the alleged threat, we submit as

 6     follows:  The Prosecution rely at 34079 on Nicolai's testimony that it

 7     was Gvero's threat that made them decide to stop the air-strikes.  We

 8     suggest there's clear evidence leading to a reasonable doubt on the

 9     issue.  That's contained in our brief at page 205, paragraph 286, and in

10     particular it relates to Fortin's testimony that the air-strikes were

11     suspended as a result of the VRS threat at 1400 hours read over the radio

12     by the captured NCO.  It's also pages 205 to 206 of our brief,

13     paragraph 287 to 289, that it was a Karaman threat that led to the

14     cessation of air-strikes and that he couldn't recall with certainty

15     whether or not the threat was transmitted by Gvero.  In the absence of

16     certainty, we suggest, from the Prosecution's main witness, any doubt

17     must be accorded to the accused.

18             Then at 34079, we have Mr. Thayer again asserting "he had to

19     know," and this was in the context of other threats.  We suggest this is

20     pure speculation based on no evidence whatsoever, it's rhetoric of the

21     worst kind, and, indeed, highly prejudicial and quite improper coming

22     from a prosecutor.

23             Now, Your Honours, the Prosecution themselves acknowledge at

24     34079, over to the next page, that by the time of the second

25     conversation, the one with General Gobillard, the air-strikes had already

Page 34725

 1     been suspended.  By this admission, we suggest that they are accepting

 2     that Gvero's second conversation couldn't amount to any kind of effective

 3     threat against Gobillard leading to decisive action on the air-strike

 4     issue, as UNPROFOR had already made up their minds by the time of that

 5     discussion.

 6             And, Your Honours, at paragraphs 280 to 281, pages 202 and 203 of

 7     our brief, you'll see our assertion that the Prosecution case on this

 8     issue has also changed.  The case, as opened, and, in particular, as

 9     indicted, where they only talk about a singular commander, was a threat

10     against Nicolai, not against Gobillard.  Don't let them get away with it,

11     we suggest.  They simply can't chop and change their case in this way.

12             A related but slightly different topic is the warning that

13     General Gvero sent to the Drina Corps immediately after these

14     conversations on the 11th of July, which is 6D207.  Both parties have set

15     out their positions in their briefs, and Mr. Thayer mentioned it in his

16     address.  We suggest to you that the Prosecution case, so far as this

17     document is concerned, is that black is really white.  They say that

18     Gvero clearly doesn't mean what he says in that document.  Well, of

19     course, it's very easy for them to say that, but it's very difficult to

20     prove, and it's something they have to prove beyond a reasonable doubt.

21     We suggest they haven't got near doing that.

22             Of course, what Mr. Thayer fails to address in his rhetoric to

23     you is their very own expert on this particular subject, because

24     Mr. McCloskey asked Mr. Butler about this document, and this is what

25     Mr. Butler said, I quote:

Page 34726

 1             "This is a fair example of a good military idea that was overcome

 2     by events."

 3             That was at 19801, and Mr. Butler confirmed that again in

 4     cross-examination at 20722.  Your Honours, a good military idea.  How on

 5     earth can that be criminal and multifarious, as Mr. Thayer alleges in his

 6     submissions to you.

 7             Now, Madame Fauveau referred to this document today in her

 8     submissions, contrasting it to the alleged Gvero order, P45.  She

 9     described 6D207 as an order.  We submit that that's an incorrect

10     description of the document, and that is one of the ways one can contrast

11     P45 to 6D207.  Our full submissions as to P45, of course, can be found in

12     our brief at pages 216 to 221.  I digress slightly to deal with that.

13             One other thing I'd like to deal with, whilst on a related topic,

14     and that was something that Mr. Thayer ended with, and that was an

15     intercept between Gvero and a man called Subara, P1134, which was dealt

16     with at page 134, paragraph 39 of our brief, and we say there is some

17     similarity between that and 6D207, not in terms of the intercept and the

18     document, but in the way the Prosecution approached them.  They simply

19     say, and I make no apology for using the same phraseology, that black is

20     white, and they can't give you any reason as to why black is white.  They

21     simply throw mud, and that's what it is, mud at General Gvero, and they

22     hope it's going to stick.  And, of course, they have to say that, because

23     otherwise their case simply doesn't add up and doesn't make sense.  And

24     bearing in mind the burden of standard of proof, we are sure you'll have

25     no difficulty in rejecting that sort of approach from the Prosecution.

Page 34727

 1             Now, Your Honours, I'm going to go through a few more issues much

 2     more briefly.  I think there's one I can deal with before the break, and

 3     that is the alleged intercept between General Gvero and Radovan Karadzic.

 4     This was dealt with in closing at 34082, and the Prosecution complained

 5     that the transcripts that we were relying upon do not mention -- they

 6     complain that we have falsely portrayed 6D14 and 6D15, the transcripts we

 7     refer to, in our brief.

 8             Your Honour, the Trial Chamber can feel confident upon the

 9     accuracy of the contents of those transcripts.  They were played in full

10     to the relevant witness, PW-145, during his testimony, and he explicitly

11     confirmed at 7264 that their contents are identical to the conversations

12     in the intercepts.  Now, as such, although only Gvero's side of the

13     conversation has been recorded and, therefore, it's only his part of the

14     conversation that appears on the transcript, it's very clear that the

15     record of the call commences from the beginning and also includes the

16     portion of the conversation with the operator.  As such, you can feel

17     confident and, indeed, able to verify independently that nowhere in those

18     intercepts is the name Karadzic mentioned either by the participants

19     during the conversation --

20             THE INTERPRETER:  Please slow down.

21             MR. JOSSE:  My apologies.

22             You can feel confident that nowhere in those intercepts is the

23     name Karadzic mentioned either by the participants during the

24     conversation or by the operator at the beginning of the call.  We

25     suggest, as set out in our brief at pages 193 to 202, that PW-145's

Page 34728

 1     purported identification of Karadzic as the other participant in that

 2     conversation, and the fact that it appears in the headers of P1096 and

 3     P2375, the transcripts the Prosecution rely upon, is or may be based on a

 4     series of mistaken assumptions and cannot be relied upon beyond

 5     reasonable doubt.  Significantly, PW-145 admitted during his live

 6     testimony that he could not be sure of the participants in the

 7     conversation.

 8             Briefly on this topic, at 34083, Mr. Thayer characterised one of

 9     these discussions - I think it was P1096 - as short, curt and polite, and

10     he said that this establishes that is a call with Karadzic, somebody with

11     whom he has -- I haven't got the quote here, but Your Honour has the page

12     reference.

13             We submit that Skrbic's evidence is diametrically opposite to the

14     assertion made by Mr. Thayer.  Skrbic described the call as a friendly

15     exchange and was symptomatic of a "relationship full of respect."  And

16     that's set out in our brief at paragraph 261, pages 193-4.  We say that

17     couldn't apply to a conversation between Gvero and Karadzic for reasons

18     the Trial Chamber are well aware of.

19             With Your Honours' leave, perhaps we could take the second break

20     now.

21             JUDGE AGIUS:  We'll have a break of 25 minutes.  Thank you.

22                           --- Recess taken at 12.29 p.m.

23                           --- On resuming at 1.00 p.m.

24             MR. JOSSE:  The next topic, Your Honours, is the meetings of the

25     22nd and 25th of August, dealt with by Mr. Thayer at 34076, where he

Page 34729

 1     deals with what he says is an incorrect citation in our brief at

 2     page 110.  Could we concede that, unfortunately, in our brief we have

 3     mixed the two meetings up?  As far as I could gather, Mr. Thayer had

 4     appreciated that, because he, in his submissions, addressed each meeting

 5     in the correct manner.  It's the meeting on the 22nd of August which

 6     Gvero did not attend at Borike which was variously regarded by Smith as

 7     "fascinating," "a success," and "a step in the right direction."

 8     Contrast that, we say, with the meeting on the 25th of August, 1995,

 9     where Gvero didn't attend and which Smith regarded as "brief and

10     businesslike."

11             We next want to turn to paragraph 159 of the Prosecution brief,

12     where they deal with General Gvero's alleged monitoring of Spreca 95.

13     They say he monitored this operation by placing an assistant commander

14     for morale at the forward command post.  We contend that this shows a

15     failure on the part of the Prosecution to understand the strict reporting

16     structure within the VRS under which morale officers at the corps level

17     did not and were not permitted to report directly to General Gvero's

18     organ at the Main Staff level.  This is dealt with in our final brief at

19     pages 121/123, which describes how matters worked.

20             In short, the Operations Department would receive reports sent

21     from the corps commander.  The Operations Department would then separate

22     out the issues pertaining to the remit of the sector of each of the

23     assistant commanders in the Main Staff.  General Gvero would only have

24     received updates as to the morale situation within the Spreca 95

25     operation through this channel.  He would never have had any better

Page 34730

 1     insight into or influence over the operation resulting from a direct

 2     reporting line with the corps-level morale officer who was ordered by

 3     Mladic to be embedded at the forward command post, as set out in

 4     5D-P2891, in short a complete misconception of the evidence by the

 5     Prosecution.

 6             Turning next to the issue of propaganda.  Yet again, the

 7     allegation now made by the Prosecution that Gvero was the chief

 8     propagandist of the VRS does not appear in the indictment.  Indeed, the

 9     Trial Chamber are invited to contrast this with paragraph 74(D)(1) in the

10     indictment, where it says that Tolimir is "organised and led the

11     psychological and propaganda activities related to the operations in

12     Srebrenica and Zepa."  We accept that in paragraph 277 of their pre-trial

13     brief, the Prosecution asserted "Gvero was head of the department

14     responsible for" inter alia, and then quote again "psychological and

15     propaganda-related activities," but that allegation does not appear

16     anywhere in the indictment and, as I've already said, it is levelled

17     against Tolimir in the way that I've described.  The extent to which we

18     say General Gvero had some responsibility for these matters, they're

19     dealt with in our brief at pages 94 to 98.

20             In paragraph 161 of the Prosecution's brief, the Prosecution have

21     erroneously conflated the Morale Sector's Information Service which was

22     overseen by General Gvero and produced "Srpska Vojska" and the Centre for

23     Information, Psychological, and Propaganda Activities, which was headed

24     by Milutinovic and was directly subordinated to Mladic.  These two units,

25     we contend, were completely separate entities, and the latter was not

Page 34731

 1     overseen at all by our client and was, instead, directly subordinated to

 2     Mladic.  Simic's evidence with regard to this is relied upon at page 113

 3     of our brief.

 4             The Prosecution make the same error in the second paragraph of

 5     1750 of their brief.  In support of their assertion there, they cite

 6     Trkulja for this proposition at 15140, but in fact the witness only

 7     confirmed that General Gvero was in charge of "an information centre."

 8     He did not clarify which one or who it was headed by.  In fact, when we

 9     were looking at this for the last time very recently, it became apparent

10     that the proposition in the first sentence of paragraph 1750, where it

11     says "another component of Gvero's role as chief propagandist of the VRS

12     was to remain attuned to how the VRS was perceived in the international

13     media, looking for opportunity to present the VRS positively, as well as

14     watching out for sources of negative portrayal," the Prosecution only use

15     a 1992 request of General Gvero's as the proper treatment of journalists

16     at 6D129, and we say it's a quantum leap for the misleading proposition

17     in the second sentence.  It's an example of how one needs to read and

18     analyse these Prosecution assertions very carefully.  In fact, they cite

19     no evidence at all in support of their rather startling proposition that

20     Gvero's man was at the Hotel Fontana meeting.  We ask, rhetorically, has

21     that ever been an issue in this case?  Have they ever said that Gvero had

22     his man there at the Hotel Fontana?  Of course not.  Your Honours,

23     they're making it up as they go along.

24             The final example I'll give you of Prosecution's confusion

25     between Tolimir, Gvero, and Miletic's responsibility for propaganda can

Page 34732

 1     be seen in 162 of their brief.  They cite -- or, I beg your pardon, they

 2     state:

 3             "An example of psychological and propaganda activities of Gvero's

 4     organ directed against the enemy population with a loud-speaker used in

 5     Zepa to broadcast messages from General Mladic, calling on the Zepa

 6     population to leave the enclave."

 7             In fact, they erroneously cite P2588 for this proposition.  It's

 8     a typographical error we accept, because they must mean it's P2788.

 9     However, the document in question is a direction from Tolimir to the

10     Security Department of the 1st Krajina Corps.  It refers to the

11     involvement of the Milutinovic's centre, the one I have referred to

12     earlier, being allowed in arranging with the Zepa loud-speaker.  It has

13     nothing whatsoever to do with General Gvero.

14             At 34086, the Prosecution asserted, in their closing arguments,

15     that Gvero had the ability to disagree with Mladic, whilst at the same

16     time keep his job, and that this proves that Mladic trusted and valued

17     Gvero.  The relationship between these two men is fully dealt with in our

18     final brief at page 77 onwards.  In fact, we suggest, at the very least,

19     the evidence in this case gives rise to an inference that Mladic had

20     little option but to retain the devil he knew, rather than the SDS lackey

21     that Karadzic clearly wanted to put in his place for Gvero's job,

22     Deronjic in particular.  In support of this proposition, we invite you to

23     look at Simic's evidence 28 --

24             THE INTERPRETER:  Thank you for slowing down.

25             MR. JOSSE:  Thank you.

Page 34733

 1             We rely on Simic's evidence, 28607; Skrbic, 15562; and Djukic's

 2     92 quater statement, 6D315.

 3             Two legal issues.  The first is the mass murder, Your Honours.

 4     Madame Fauveau has addressed the issue, and I'm going to do the same

 5     briefly.

 6             At various points of their final brief, the Prosecution make a

 7     bare assertion that General Gvero had knowledge of the mass murder

 8     operation; for example, paragraph 477 of their brief.  They cite no

 9     evidence whatsoever in support of such a startling conclusion.  This

10     unsubstantiated submission cannot be accorded any weight whatsoever and

11     sheds no light at all on Gvero's knowledge or mens rea in respect of the

12     crimes for which he's charged in the indictment.  Other examples of the

13     same can be found in paragraphs 1804 and 1809.

14             Your Honours, in short, this sort of stuff is the worst sort of

15     prejudice.  It fills no legitimate purpose, but it's much worse than

16     that; it is totally illegitimate.  It's totally illegitimate because, as

17     the Prosecution well know, General Gvero is not charged with these

18     allegations.  They've chosen not to charge him with those allegations,

19     and they are allegations which, I might add and to state the obvious,

20     that are about as serious as one could possibly imagine and find anywhere

21     amongst criminal offences.

22             Your Honours, since he was not charged with these allegations,

23     the Defence have at no stage in this trial sought to deal with them.

24     That's what happens in criminal trials.  The Defence seek to defend those

25     matters with which their client is charged; nothing more and nothing

Page 34734

 1     less.  Please bear that in mind.

 2             The last legal matter I wish to turn to is opportunistic

 3     killings.

 4             At 34174, Mr. Elderkin sought to deal with the Defence submission

 5     in relation to paragraph 31.1(A) of the indictment.  What emerged from

 6     his submissions, as we understand it, is that the Prosecution are now

 7     saying that the alleged killings in question took place on the 13th of

 8     July, as opposed to the pleaded date of the 12th of July.  The simple

 9     point is, and it's quite clear from the Gvero brief, that the issue that

10     the Defence addressed, both in evidence and in the brief, was the case as

11     indicted; namely, the 12th of July.  We contend that it's both unfair and

12     impermissible for the Prosecution to seek to change their claims in this

13     way in their closing arguments.  They didn't even do it in their final

14     brief.  And we rely in support of that proposition the case of Kunarac,

15     judgement 4th of November, 1999, paragraphs 16 and 17.

16             More generally on opportunistic killings, I'd like to make some

17     submissions about foreseeability.

18             The indictment alleges that the killings were a natural and

19     foreseeable consequence of the JCE to forcibly transfer the population of

20     Srebrenica.  The Prosecution has pleaded no material fact in support of

21     this allegation, merely providing details of the killings, themselves.

22     The Defence, we contend, has had no indication of what information should

23     have placed our client and his lawyers on notice that killings were a

24     "natural and foreseeable consequence" of the displacements.  On this

25     basis alone, Counts 4 and 5 should be dismissed, as the material facts

Page 34735

 1     essential to this allegation have simply not been pleaded.

 2             Moreover, we contend, no evidence has been adduced during the

 3     course of this lengthy trial to indicate that the executions in question

 4     were a natural and foreseeable consequence of the evacuation of the

 5     civilian population from Srebrenica.  The killings were entirely

 6     unconnected with the evacuation and, in fact, actually were or may have

 7     formed part of the JCE to mass murder the able-bodied men from

 8     Srebrenica, the burden in that regard, of course, being on the

 9     Prosecution.  As explained in the Defence final briefs at pages 35 to 37,

10     the Prosecution are required to prove beyond reasonable doubt that each

11     of the separate allegations of opportunistic killing did not form part of

12     the mass killings.

13             At 34178, the Prosecution, in their submissions, asserted that

14     the executions charged as opportunistic killings in paragraph 31 of the

15     indictment were either "spontaneous acts of violence or targeted

16     revenge," which "took place at locations other than the chosen execution

17     sites and for reasons other than military orders."  He said that it's

18     this:  "Opportunistic and foreseeable" character which distinguishes them

19     from the "vast and organised mass killings," which were not foreseeable

20     as a consequence of the forcible removal JCE.

21             We contend that this submission holds no water in the light of

22     paragraph 32 of the indictment, which relates to the summary executions

23     of 16 men by a small squad of soldiers on an isolated bank of the Jadar

24     River on the 13th of January, 1995.  That allegation is plainly the same

25     tenor as those alleged in paragraph 31 in the indictment and only

Page 34736

 1     indicates the sameness of the mass killing operation and the killings

 2     alleged to have been carried out opportunistically by the Prosecution.

 3             Even more importantly, we contend for our client's case, there is

 4     a complete lack of evidence indicating that General Gvero willingly

 5     accepted the risk of opportunistic killings taking place.  His Honour

 6     Judge Kwon asked this very question to Mr. McCloskey last Friday at

 7     34284.  We suggest that our learned friend, Mr. McCloskey, was simply

 8     unable to point to any evidence to indicate Gvero's adoption of the risk

 9     at all.  The dearth of evidence on this issue was such that he was forced

10     to rhetoric about the ugliness of ethnic cleansing in wars and that VRS

11     soldiers were going to act out against Muslims in the light of ethnic

12     cleansing of Serbs from Grahovo and Glamoc.

13             As discussed in relation to the foreseeability limb of the

14     mens rea requirement for JCE 3, a general knowledge of a desire for

15     revenge by some VRS soldiers or the possibility of war crimes being

16     committed during a war is manifestly insufficient to show a willingness

17     to accept the risk of opportunistic killings.

18             Mr. McCloskey then purported to --

19             THE INTERPRETER:  Thank you for slowing down, please.

20             MR. JOSSE:  -- rely upon P2753, that's 2753, the document issued

21     by General Gvero on the 10th of July, entitled "The Muslim War Trump

22     Card."  He said this in some way indicates Gvero's acceptance of the risk

23     of opportunistic killings following on from the evacuation of the

24     civilian population.

25             Given that the evacuation operation had not yet taken place at

Page 34737

 1     the time that P2753 had been written, it's hard to see how this document

 2     could possibly indicate General Gvero's mens rea for the opportunistic

 3     killings of JCE 3.  We contend that the Prosecution case on these

 4     killings is, to put it plainly, unsustainable.

 5             Your Honours, there's one final part of my address.  I think it

 6     will take about 15 minutes.  I'll certainly be finished well before the

 7     end of the day.  I think I need to request five or ten minutes extra

 8     time, therefore.

 9             JUDGE AGIUS:  Absolutely no problem.

10             MR. JOSSE:  Thank you.

11                           [Trial Chamber confers]

12             JUDGE AGIUS:  Mr. Haynes, that would basically leave us with a

13     few minutes before we are due to adjourn.  I suppose you would prefer to

14     start on Monday, won't you?

15             MR. HAYNES:  I would have started with anything up to 15 minutes

16     left of the day, but --

17             JUDGE AGIUS:  There won't be 15 minutes.

18             MR. HAYNES:  No.  Thank you very much.

19             JUDGE AGIUS:  Thank you.

20             Mr. Josse.

21             MR. JOSSE:  Yes.

22             I wish to turn to the issue of sentence, Your Honour.

23             From the Defence's point of view, the decision by this

24     institution to roll the conviction and sentence stage into one is

25     unfortunate in the extreme.  There are a number of difficulties and

Page 34738

 1     down-sides in this, and you'll be glad to know I'm not going to go into

 2     them all today.  But from a Defence advocate's point of view, it places

 3     him or her in an invidious position.  Throughout this trial, as we all

 4     know, in excess of three years, lawyer has been proclaiming from the

 5     roof-tops the innocence of his or her clients, and then right at the end

 6     of the procedure the lawyer has to say, Well, hang on a minute, Your

 7     Honours.  If you happen to find my client guilty, then you might want to

 8     hear the following and bear it in mind when you come to sentence him.

 9     This, as I've already said, is highly unsatisfactory from the lawyer's

10     point of view, but also from an accused's.  But, in fact, it goes further

11     than this, because in reality it makes it impossible for counsel to

12     comment and mitigate on the exact basis on which his or her client has

13     been convicted.

14             By this, I mean as follows:  If the procedure was, as we say it

15     should be, judgement on conviction first, then this would allow an

16     accused and his or her lawyers to know which counts the accused has been

17     convicted of, and also in a judge-only system, such as is operative here,

18     the accused would know the basis on which he's been convicted, the degree

19     of culpability, because that would all be set down in the judgement.

20     This would, in turn, allow the Defence advocate to address all these

21     issues in mitigation prior to sentencing.  Well, obviously, I cannot do

22     that on behalf of General Gvero.  The best I can do in this regard is to

23     urge you that in the event of a conviction on any of the counts of this

24     indictment, is for you, before you come to pass sentence, to replace

25     yourself in the position that I'm in today and ask yourselves, What would

Page 34739

 1     the Defence be submitting at this juncture as to the nature of

 2     conviction, the degree of culpability, and what can be said on behalf of

 3     the accused in that regard?

 4             In relation to those matters that I can say at this junction,

 5     everything I say in the next few minutes needs to be considered in the

 6     context that Mr. Krgovic and I, on behalf of General Gvero, do not resile

 7     from the position we have advocated throughout this trial; namely, that

 8     our client is not guilty and the proper verdicts you should return in

 9     relation to all counts on this indictment is precisely that, not guilty.

10     We say the Prosecution have not proved his guilt beyond a reasonable

11     doubt.

12             Addressing the issue as best I can, first and foremost, we

13     contend that the Prosecution final brief's sentencing recommendation, so

14     far as General Gvero is concerned, bears no relationship to reality.  So

15     far as General Gvero is concerned, deliberately or otherwise, it

16     continuously falls into the same trap.  The very first paragraph, 2806,

17     says:

18             "Over 7.000 people were systematically murdered."

19             Now, without being blase about this important topic and whether

20     this is true or not, there is no doubt that the terrible crime of mass

21     murder was committed.  There is also no doubt that Milan Gvero is not

22     charged with this crime and is obviously not going to be punished for it

23     at all.  If the tarring of Milan Gvero with the brush of mass murder, in

24     the context of sentencing, is a mistake by the Prosecution, it's careless

25     and unfortunate in the extreme.  If it's deliberate, it's nothing short

Page 34740

 1     of disgraceful.

 2             As for the recommendation, as I've already contended, it bears no

 3     relationship to reality.  It is acknowledged by many commentators that

 4     sentencing at the ICTY is rather too much of an imprecise science.  Now,

 5     there may be good reasons for this, but when it comes to

 6     Srebrenica-related offences, consistency, we suggest, is both possible

 7     and desirable because of the number of accused who've already been

 8     sentenced for their roles in these events.

 9             In this regard, we would invite Your Honours to examine certain

10     passages from the very last judgement in relation to these events;

11     namely, the Appeals Chamber judgement of Blagojevic and Jokic on the 9th

12     of May of 2007.  The topic, as a whole, is dealt with in paragraphs 319

13     to 346.  In paragraph 332, the Appeals Chamber described the

14     Prosecution's assertion that Blagojevic's sentence was inadequate

15     compared to Krstic, Momir Nikolic, and that of Obrenovic.  It's worth

16     remembering that it was there that the Prosecution were arguing strongly

17     for consistency and comparison.  That's what they were urging on the

18     Appeals Chamber.

19             Now, it's true to say that at paragraph 333, the Appeals Chamber

20     sets out the limited value of comparing sentences at this Tribunal.

21     However, we contend that in paragraph 334, in reality, the

22     Appeals Chamber do just that and do compare the sentences, because

23     obviously the crime base is either the same or ostensibly the same, but

24     the actual role of each of the accused in the crimes was different.  And,

25     for example, at the very end of that paragraph, the Appeals Chamber says,

Page 34741

 1     and I quote:

 2             "Blagojevic's criminal liability is also distinguishable because,

 3     unlike Momir Nikolic and Dragan Obrenovic, Blagojevic was not convicted

 4     of participating in the mass killing operation."

 5             The position and analysis, we contend, is similar at

 6     paragraph 345 so far as Jokic is concerned.

 7             It's clear, from what I have just read out, that comparing

 8     Srebrenica offenders is a validity.  Now, of course, at the same time,

 9     that a Trial Chamber, in passing sentence, must consider the role of an

10     accused in question carefully and in detail.

11             What we say is this:  That there are three accused, particularly,

12     all of whom have been convicted after trials at this institution whose

13     sentences you should play close regard to.  The first is Krstic's.  He

14     was convicted, inter alia, of genocide and ultimately received 35 years

15     in prison.  Blagojevic was convicted, inter alia, of aiding and abetting

16     genocide, 15 years imprisonment.  And Jokic was convicted, inter alia, of

17     extermination, nine years imprisonment.  These offences are, whichever

18     way one looks at it, far more serious than the offences for which

19     Milan Gvero is charged and stands to be convicted, even in the worst

20     eventuality on this particular indictment.

21             Bearing this in mind, for the Prosecution to suggest that

22     Milan Gvero, even taking the Prosecution case at its highest, that he

23     should receive a sentence of life imprisonment with a 30-year minimum

24     term, is nothing short of absurd.  The reality is, and I make no apology

25     for saying this, that the Prosecution submissions as to sentence are of

Page 34742

 1     no help to you whatsoever when you come to determine sentence in this

 2     case.

 3             Now, Your Honour, there are a few matters in mitigation which I

 4     wish to point to.  Interestingly, the evidence in mitigation that I rely

 5     upon has basically emerged organically during this trial, inadvertently,

 6     really, when the Court has been dealing with other topics or witnesses

 7     have, and I'm going to run through this very quickly simply by pointing

 8     some page numbers.

 9             The first point is we'd invite you to look at page 75,

10     paragraph 135, and page 116, paragraph 53, of our final brief, in

11     relation to Asim Hodzic.  Secondly, we'd ask you to look at page 115 to

12     117, paragraphs 50 to 54, which is material basically addressing the

13     indictment, but it contains some material that you may find useful in

14     relation to mitigation.  Third, we'd invite you to look at

15     General Simic's reference to the Batkovic camp which were, you may think,

16     entirely unprompted on the 21st of November of last year at 28601.

17     Fourth, page 91, paragraph 11 of our brief, in relation to the document

18     P28 issued by General Gvero in relation to the correctness of this

19     document, there's either reliance placed on it by the Prosecution in

20     their closing argument at 34138 on the 3rd of September.  And, finally,

21     General Gvero's distribution of various ICRC documents in Serbian to his

22     troops, described in the evidence of Skrbic at 156 -- I'll give that

23     again, 15569 to 15572.

24             Next, voluntary surrender.  It's not clear in the Prosecution

25     brief, at paragraph 2831, if they actually concede that that is what

Page 34743

 1     General Gvero did, but Your Honours know, from the various provisional

 2     release applications in this case and also the decisions that you have

 3     made, that it's not been in dispute.  It can be said that General Gvero

 4     voluntarily surrendered, and I urge that as a piece of mitigation on his

 5     behalf.

 6             Next, his health.  Now, Milan Gvero is not only the oldest man on

 7     trial in this case, he is now the oldest person in detention at the UNDU.

 8     As you know, he suffers from relatively poor health.  You know about all

 9     this from the various reports that you have seen in our various

10     provisional release applications.  In particular, you know that he will

11     shortly require open-heart surgery.

12             The fact that health is an issue that a Chamber can take into

13     account, in terms of sentencing, was dealt with in the Strugar appeals

14     judgement of the 17th of July, 2008, where that Court said:

15             "After examining the relevant evidence, the Appeal Chamber

16     considers that Strugar's deteriorating health since the trial judgement

17     was rendered must be considered as a mitigating factor."

18             Your Honours, in conclusion and without wanting to labour an

19     obvious, sombre, but above all else important point, we can only urge

20     you, on behalf of Milan Gvero, that in the event you convict him on any

21     count in this indictment, that you pass a sentence that does not

22     inevitably mean that he will die in prison.

23             Thank you.

24             JUDGE AGIUS:  Thank you, Mr. Josse.

25             Are there any questions?  Not at the moment, anyway, but we might

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 1     have Monday.  I don't know.

 2             So we stand -- yes, Mr. McCloskey.

 3             MR. McCLOSKEY:  Just to clarify the record, we agree that

 4     Milan Gvero and General Miletic self-surrendered.

 5             JUDGE AGIUS:  Okay.  Thank you for that.

 6             MR. JOSSE:  Thank you very much for that.  Obviously, we're

 7     grateful from this side of the court.

 8             JUDGE AGIUS:  All right, thank you.

 9             So we'll reconvene Monday morning at 9.00.

10             On Monday, Mr. Haynes, I assume, would finish within the two and

11     a half hours allotted or allocated.  Do you intend to ask for time for

12     rebuttal or not?

13             MR. McCLOSKEY:  Mr. President, my intention right now is to ask

14     for 15 to 20 minutes of rebuttal, specifically to answer some of the

15     factual allegations made by the Borovcanin Defence.  For any of the other

16     cases, I don't see anything right now.

17             JUDGE AGIUS:  Okay, thank you.

18             We stand adjourned to Monday, 9.00.  Thank you.

19                           --- Whereupon the hearing adjourned at 1.39 p.m.,

20                           to be reconvened on Monday, the 14th day of

21                           September, 2009, at 9.00 a.m.