Tribunal Criminal Tribunal for the Former Yugoslavia

Page 34745

 1                           Monday, 14 September 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.04 a.m.

 5             JUDGE AGIUS:  Yes.  Good morning.

 6             Mr. Registrar, could you call the case, please.

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

 8     everyone in and around the courtroom.

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

10     et al.  Thank you.

11             JUDGE AGIUS:  Okay, thank you.

12             For the record, all the accused are present.  The presentation is

13     full house, except for Ms. Tapuskovic.

14             Mr. Haynes, your closing arguments, please.

15             MR. HAYNES:  Thank you.

16             I apologise if you can't see me clearly.  I'm not sitting back

17     here because the severity of this haircut won't stand too much close

18     scrutiny.  We've decided to stay here out of a sort of nostalgia, really.

19     Having sat here for three years, we thought we'd finish here.

20             A few months ago, when I opened this case to you, I underlined

21     the themes that had been the Pandurevic defence and would continue to be

22     developed during the presentation of his case.

23             One theme was specifically not addressed; namely, that of his

24     character.  Neither was it developed in the course of the final brief.

25     However, given the manner in which the Prosecution have addressed several

Page 34746

 1     issues in their final brief, it seemed to me only appropriate that I

 2     remind you of the substantial body of evidence within the case which

 3     placed the few matters relied upon by the Prosecution into their proper

 4     context.

 5             The matters I shall refer to in the following section of this

 6     closing argument derive entirely from unchallenged oral evidence and the

 7     testimony of witnesses admitted under Rule 92 bis without any requirement

 8     for their attendance for cross-examination.  It can thus, I submit to

 9     you, be taken as unchallenged.

10             Vinko Pandurevic was raised in a farming community in a

11     multi-ethnic part of the former Yugoslavia.  During his childhood,

12     although aware of the different beliefs of his neighbours and school

13     friends, he was brought up to believe in the principles of brotherhood

14     and unity.  It was the practice of his family to interact with their

15     Muslim neighbours on their respective feast days, to respect their

16     beliefs, and to cooperate in practical ways wherever possible.  In the

17     submission of the Defence, his upbringing and beliefs are of peculiar

18     relevance in his case, informing, as they did, many of the decisions he

19     was to take during the war in Bosnia.

20             He entered service with the JNA through the Military Academy

21     against his mother's wishes.  It was the only practical solution to the

22     funding of his higher and further education, as his parents had no money.

23     Virtually all of his pre-war service, indeed virtually all of his adult

24     life prior to 1992, was spent in Slovenia, where he settled with his

25     young family and assimilated into local life and culture.  There, he

Page 34747

 1     developed his interest in socialist politics.  It was in Slovenia that he

 2     first commanded a unit.  It was composed entirely of Slovenian

 3     conscripts.  His commanding officer, Tihomir Blaskic, a Croat, became his

 4     best man or Kum.  He learnt to speak Slovenian, contributed to local

 5     journals and magazines, came to regard the area as his home, and was

 6     loved and respected by his friends and colleagues there as much for his

 7     own ethnicity as for his endeavours to blend in locally.

 8             In considering his understanding of the situation of the ethnic

 9     communities Bosnia-Herzegovina, as well as his own personal beliefs, it

10     is relevant, we submit, to remember that he had spent the 15 years prior

11     to the start of the war outside Bosnia.

12             After the commencement of hostilities in Bosnia, Pandurevic was

13     deployed as part of a JNA unit in Visegrad.  In spite of the occasional

14     insinuation in this trial by the Prosecution about Visegrad, no evidence

15     has been adduced, nor any suggestion made, which would cloud Pandurevic's

16     reputation as a man or a soldier during this period.  The Defence has

17     adduced evidence, which will be referred to in due course, of actions

18     which speak only of his positive qualities during that period.

19             On the 18th of December, 1992, Pandurevic arrived in Zvornik to

20     assume command of the Zvornik Brigade.  He was a 33-year-old first-class

21     captain.  He was very young and very short of experience for such a role,

22     especially given the size of the Zvornik Brigade, both numerically and

23     geographically, which made it such a hard body to control.  His effect

24     upon the operative efficiency of the Zvornik Brigade was almost

25     immediate.  In truth, it had to be, because it and the region were in a

Page 34748

 1     pallor state of security at the end of 1992.

 2             Pandurevic tried to command the brigade pursuant to the rules and

 3     to the structure of the Zvornik Brigade as much as possible in accordance

 4     with military principles.  He was perceived by his colleagues as a true

 5     or real commander.  He was strict, but also correct and even-handed, so

 6     that other officers respected him and saw him as a real soldier.  His

 7     strictness was based, first of all, upon strictness towards himself and

 8     then towards others.  The discipline in the brigade was different when he

 9     was there, as opposed to when he was absent.

10             Pandurevic treated all his soldiers equally, whether they were

11     professional soldiers or not.  As a commander, he showed neither

12     favoritism nor prejudice.  Milenko Jevdjevic recalled a combat situation

13     when Pandurevic sent his own brother and his headquarters administration

14     commander, together with Muslim porters who had work obligation, to take

15     ammunition to units at the front.  Milenko Jovicic described him more

16     simply; he was just an extremely good person.

17             A phrase from General Krstic's evidence was put to Pandurevic in

18     cross-examination, where he was described as the best brigade commander

19     in the Drina Corps, one of the best commanders amongst his peers in the

20     army as a whole, a professional soldier in every sense of the word.

21             He was equally respected by the civilian population in Zvornik.

22     He was viewed as a very capable man of almost unique qualities, whose

23     ability to solve a problem without raising his voice was well known.

24     However, he was certainly not popular with the politicians or anyone in

25     the political leadership in Zvornik municipality.  His rating with them

Page 34749

 1     was not very good for all sorts of reasons, but mainly because he didn't

 2     let them interfere in the command of the Zvornik Brigade, something that

 3     they repeatedly tried to do, according to Miodrag Dragutinovic.

 4             He was, of course, an extremely effective combat soldier.  Those

 5     who had the opportunity to work together with him in battle had a very

 6     high opinion of him as a professional soldier.  They saw him as a young

 7     officer who, in the most effective way, put the knowledge he had gained

 8     in his military schools into practice very well during the war.  He had a

 9     very high capability in the field of control and command of his units.

10     He was capable of rapid planning, rapid deployment, and rapid

11     implementation of an operation.

12             Moreover, he had the skill to size up a situation, carry out

13     preparations, and go into action in keeping with the situation on the

14     ground, and he acted energetically.

15             The Trial Chamber has heard at least three compelling examples of

16     Pandurevic's skills as a commander in battle.  These were,

17     chronologically, Operation Mac 1, the taking of Ustipraca in June of

18     1993, the retaking of Zivko Brdo on the morning of the 10th of July,

19     1995, and the repulsion of the Croatian forces at Grahovo in the Krajina

20     in August of 1995.  These military successes were often achieved in spite

21     of the poor quality of the units under his command or the tactical

22     ineptitude of his neighbouring units.

23             The Trial Chamber will doubtless have got the impression that

24     whoever he was dealing with, Pandurevic was not a man who suffered fools

25     gladly, and moreover he was never afraid of speaking his mind.

Page 34750

 1             The Trial Chamber may or may not conclude that in describing some

 2     of the non-governmental organisations present in Republika Srpska as

 3     good-for-nothings - Prosecution brief 1311 - this aspect of Pandurevic's

 4     character was well reflected.  Nonetheless, throughout the entirety of

 5     the war, Pandurevic's relationship with international organisations was

 6     constructive and cooperative.  His assertion that as a soldier he was

 7     primarily interested in peace is credible and borne out by evidence of

 8     his behaviour.

 9             His pride in his relationship with General Morillon, a witness on

10     his 65 ter list, in the spring of 1993 was plain.  Pandurevic complied

11     with the general's requests and ensured free movement and free passage

12     for General Morillon while he was carrying out his duties as a UN

13     commander.

14             His orders to the members of his unit as to how to deal with

15     members of the Dutch Battalion during Krivaja 95 were entirely proper and

16     completely unchallenged.  He was an active participant in the execution

17     of the Dayton Peace Accords between November 1995 and his departure from

18     Zvornik, cooperating both with IFOR and the Bosnian Army forces.

19             In spite of his youth and inexperience, Pandurevic was neither

20     afraid to question orders which were, in his view, unjustifiable, nor to

21     act on his own initiative.  He showed that not just on the 11th of July

22     in Srebrenica and in Bratunac, we maintain, nor just on the 16th of July

23     in Baljkovica, but throughout the war whenever the situation demanded.

24             The Defence invite the Trial Chamber to view that in the case of

25     Pandurevic, actions truly speak louder than words.  In the submission of

Page 34751

 1     the Defence, Pandurevic's actions in July 1995, in standing up to Mladic

 2     and contravening his orders to destroy the column were neither isolated

 3     nor borne of necessity, but were, rather, the concrete expression of his

 4     character and integrity through his actions.  To that end, the evidence

 5     of Pandurevic's actions prior to the critical events of July 1995 is more

 6     than mere character evidence.  The types of evidence envisaged as being

 7     relevant to culpability in the prior jurisprudence of this Tribunal do

 8     not fall into this category.  In those cases, it amounted to no more than

 9     evidence of a lack of prejudice or general good character.

10             The episodes about which this Trial Chamber has heard during the

11     course of this case relate directly to the question of --

12             THE INTERPRETER:  Thank you for slowing down when reading.

13             MR. HAYNES:  -- propensity and state of mind.

14             JUDGE AGIUS:  Mr. Haynes, you're being invited to slow down a

15     little bit for the sake of the interpreters, please.

16             MR. HAYNES:  Thank you very much.  I will.

17             The episodes about which this Trial Chamber has heard during the

18     course of the case relate directly to the question of propensity and

19     state of mind.  Where there is an issue, for example, as to the

20     motivation of the accused in letting the column pass at Baljkovica, the

21     Defence contend that it is relevant to take into account the fact that on

22     prior occasions Pandurevic behaved in a precisely similar fashion, when

23     neither he, nor his forces, were at any risk.

24             I'm going to list now just a few of the episodes of Pandurevic's

25     behaviour which we will ask you to take into account in determining his

Page 34752

 1     motivation and state of mind in July of 1995.

 2             In April of 1992, in Visegrad, Pandurevic protected Muslim

 3     civilians from Serb paramilitaries, disarming the latter and forcing them

 4     to return to Serbia.  He also provided food to the Muslim population and

 5     pledged to protect them; that this may have been a piece of evidence

 6     which went unnoticed.  It derives from 7D1191, the 92 bis witness

 7     statement of Guso, Midhat, and I will read from it:

 8             "Soldiers of the Uzice Corps of the JNA Yugoslav National Army

 9     asked locals to declare arms in their possession.  They came up to my

10     house.  They did not go inside.  One of the soldiers started as if he

11     were to enter the house and began to act in a rough manner.  Another

12     soldier then approached him.  He did not allow him to go inside, saying,

13     'Act decently or I will report you to Vinko.'  When I heard the name

14     Vinko, I did not know who that referred to.  I assumed that it was a

15     reference to an officer who does not permit violent and arbitrary conduct

16     towards Muslims.  At that time, I did not know Vinko Pandurevic.  I saw

17     him for the first time two or three days after the event that I

18     recounted.  I note that the unit under Vinko Pandurevic's command had

19     kitchen at the house of one of my brothers, where it prepared food for

20     the troops.  Pursuant to Vinko Pandurevic's order, the food from that

21     military kitchen was distributed also to us, residents from the village."

22             He goes on at paragraph 11 to say:

23             "In view of the circumstances, it is my belief that the members

24     of this paramilitary group would have killed those of us standing around

25     the post office but for the fact that Vinko Pandurevic prevented them

Page 34753

 1     from doing so."

 2             Shortly after becoming commander of the Zvornik Brigade,

 3     Pandurevic established contact with the commander of the opposing forces,

 4     the ubiquitous Semso Muminovic.  They quickly established a hot-line,

 5     their contacts led to regular prisoner exchanges, an agreement on the

 6     shelling of certain inhabited areas, an agreement for cease-fire of

 7     sufficient duration to permit each side to sew and reap crops

 8     bi-annually.  On the first occasion of such a cease-fire, the arrangement

 9     was almost entirely to the benefit of Muslim forces, who were under

10     attack by Croat forces and facing famine, again a piece of evidence that

11     might have escaped your attention, so I'll read from it.  It's 7D1191,

12     the 92 bis witness statement of Semso Muminovic:

13             "At that meeting, I explained to Vinko Pandurevic the difficult

14     situation we were then facing due to lack of food.  At that time, Muslim

15     forces were engaged in a conflict with the Croat Defence Council.  For

16     that reason, the delivery of food supplies from Tuzla was difficult.  A

17     food supply crisis appeared imminent, affecting both civilians and army

18     personnel in that area.  I suggested a truce to Vinko Pandurevic in the

19     duration of one month to allow the spring harvests preparations to be

20     made.  By truce, it was understood that there would be no shelling of

21     inhabited or uninhabited areas or roads; in other words, that there would

22     be a complete cease-fire.  In response to my proposal, Vinko Pandurevic

23     said that he did not have his command's approval, but that regardless, he

24     would agree to the proposed truce on his own responsibility.  He said,

25     'Semso, the truce is in effect from the day after tomorrow at noon.  Let

Page 34754

 1     the people work in the fields, whatever may happen to me.'"

 2             In late January of 1993, Pandurevic made an arrangement for the

 3     daily passage of Muslims at or near Kamenica.  The arrangement allowed

 4     for those who were trapped by combat to pass safely.

 5             During Operation Mac 1 in June of 1993, Pandurevic's unit,

 6     through the efficiency of its actions, trapped several thousand Muslim

 7     forces at Ustipraca.  They had advanced far more rapidly than their

 8     neighbouring units, and because of the dominance of the position they had

 9     taken, the Muslim forces were completely at their mercy.  Notwithstanding

10     this and completely without the authority of his superior command,

11     Pandurevic allowed all soldiers, civilians, vehicles, and arms to leave

12     the area, in quotations "without a single bullet being fired."  This was

13     done at the initiative of Pandurevic by direct communication with the

14     opposing commander, Ahmed Sejdic.  These last two incidents will be

15     returned to in greater detail in due course, as the Prosecution brief has

16     confused the two episodes in its submission.

17             The unanimous experience of those who worked with Pandurevic as a

18     commander was that his treatment of his and his instructions as to the

19     treatment of prisoners of war was at all times consistent with the Geneva

20     Conventions.  Upon his return to Zvornik on the 15th of July, 1995, his

21     orders that prisoners were to be kept alive at all costs were well known.

22     Symbolically, when, on the morning of the 16th of July, a Muslim

23     communications officer was interrogated by his chief of staff, that man

24     had his wounds treated, was fed, and released safe and sound.  Moreover,

25     on the 18th of July, a group of seven to ten Muslim teenagers was at the

Page 34755

 1     4th Battalion command post tasked by somebody to dig fortifications.

 2             THE INTERPRETER:  Thank you for reading slowly.

 3             JUDGE AGIUS:  Again, Mr. Haynes, my attention has been drawn to

 4     ask you to read more slowly, please.

 5             MR. HAYNES:  I'm sorry.

 6             Pandurevic immediately told these men to stop digging, ordered

 7     Dragan Jokic to guide them through the minefield to the safe Muslim side,

 8     and contacted Semso Muminovic and told him he was sending the teenagers

 9     back to him.  He was to call Pandurevic back and let him know if they had

10     arrived safe and sound.  In due course, he did so.

11             It is well documented that a large number of prisoners arrived at

12     the Batkovici camp in the latter half of July 1995.  They came from the

13     Zvornik Brigade detention facilities.  Moreover, it is plain from the

14     evidence that Pandurevic was active in securing their transfer to that

15     place for exchange.

16             During the course of this trial, a number of witnesses have

17     expressed their view as to the effect which Pandurevic's absence had

18     during the crucial periods of the indictment, upon unfolding events.

19     Perhaps most graphically, Lazo Ristic said:

20             "I'm still not clear why this was done in Zvornik when our

21     commander was absent, and in a way it so happened that they came through

22     the command of our battalion, where the commander was also absent.  If

23     they had been there, I believe that things would not have happened the

24     way they did."

25             As an example of the command culture within the Zvornik Brigade,

Page 34756

 1     it should be remembered that Lazar Ristic, who spoke elsewhere in his

 2     evidence about the guiding example of Pandurevic's command, withdrew his

 3     men from Orahovac when he discovered a murder operation was in process.

 4             As was developed in our brief, it is not merely Pandurevic's

 5     absence from Zvornik during the critical days of July and September of

 6     1995 which is important.  Of equal if not greater importance is his

 7     absence from the taking of crucial decisions; for example, the decision

 8     to transfer prisoners from Bratunac to Zvornik for execution, taken on

 9     the evening of the 13th of July, and the decision to disinter and rebury

10     bodies buried in the Zvornik area, taken sometime in late August or early

11     September of 1995.  Pandurevic's absence from Zvornik at those times and

12     from those decisions making processes was accidental and enforced.  It

13     was, however, well known to those involved in taking those decisions.

14             Now, I have taken some little time in outlining this evidence to

15     you because, in our submission, it goes directly to six issues raised in

16     the Prosecution brief.  It goes, firstly, to the question of the

17     credibility of Vinko Pandurevic as a witness.  It goes, secondly, to

18     counter any suggestion that this is a man who has ethnic bias.  It goes,

19     thirdly, to illustrate the reality of the command climate that existed

20     within the Zvornik Brigade.  It goes, fourthly, to illustrate the way in

21     which he and those subordinate to him habitually treated prisoners of

22     war.  It goes, fifthly, to the question of how you weigh up the evidence

23     concerning his actions in allowing the column to pass on the 16th of

24     July.  And it goes, lastly, to the question of genocidal intent, given

25     the way in which the Prosecution have put its case in that regard.  We

Page 34757

 1     submit that if you give proper weight to the evidence I've outlined in

 2     this short section of these oral arguments, that you will reject many or

 3     all of the Prosecution's submissions about Pandurevic in those six

 4     regards.

 5             Now, to switch horses for just a moment, I would like to take

 6     just a few moments to analyse the purpose of this exercise.  This is, in

 7     truth, a sweeping-up operation.  I have been putting the same case for

 8     three years, as I think everybody recognises.  I'm not going to repeat it

 9     all today.  However, I wish to make a few observations.

10             Pandurevic's case was plain from the cross-examination of

11     Prosecution witnesses.  The themes we have developed could not have been

12     clearer.  Pandurevic appeared as a witness on his own 65 ter list filed

13     in April of 2008.  His was the last case, and accordingly by the time he

14     gave evidence, the areas where he contradicted other parties' cases had

15     completely crystallised.

16             The Prosecution case does not meet Vinko Pandurevic's case, nor

17     even comment upon it, in a number of very material respects.  To give

18     some of the starkest examples of where the Prosecution does not comment,

19     either in its final brief or its closing submissions upon the case for

20     Vinko Pandurevic, I'll pick just four:  One, that Pandurevic had no

21     effective control of the Zvornik Brigade between the 4th and the 15th of

22     July, that this is an evidential, not a legal consideration, and you'll

23     find not one submission in the Prosecution brief addressed to that issue.

24     Two, the legal status of the Yugoslav National Army brigade rules, a

25     theme we developed in great detail both during evidence and in our

Page 34758

 1     submissions, not one comment.  Three, the allegation that Pandurevic

 2     returned to Zvornik on the morning of the 12th of July, something which

 3     PW-168 was effectively commissioned to say during his evidence here, but

 4     not a theme developed in the Prosecution brief at all.  And, four, the

 5     biggest gaping absence of all, not a word about the zone of

 6     responsibility on which so much of the Prosecution's case hinges.

 7             We were laughed at, frankly, for causing PW-168 to sit there with

 8     enormous maps and join the dots and explain that the Prosecution zone of

 9     responsibility theory was nonsense.  To find not one word addressed to

10     that issue in the Prosecution brief is startlingly surprising, to say the

11     least.

12             We submit boldly that where the Prosecution does not deal with

13     issues such as this, raised by the Defence throughout the trial and in

14     its brief, to which the Prosecution has the right to reply in its oral

15     arguments, as a matter of natural justice, those issues simply have to be

16     resolved in the favour of the defendant or the accused.  But matters

17     don't stop there.

18             In opening this case, I specifically challenged the Prosecution

19     and all parties to put their case to Vinko Pandurevic when he gave

20     evidence.  I made a bit of a joke about it at the time, aligning the

21     practice of putting your case to my Englishness, but it's not an English

22     thing; it's in the Rules of this Tribunal.  It's Rule 90(H)(2), and I

23     don't imagine you need reminding of that.  But what Rule 90(H)(2) says

24     is:

25             "It is in the cross-examination of a witness who is able to give

Page 34759

 1     evidence relevant to the case for the cross-examining party, counsel

 2     shall put to that witness the nature of the case for the party for whom

 3     that counsel appears which is in contradiction of the evidence given by

 4     the witness."

 5             You may think that in the case of an accused giving evidence on

 6     his own behalf, the Rule has particularly sound reasons.  Firstly, that

 7     you, the Trial Chamber, are entitled to see the reaction of an accused to

 8     an accusation put to him.  Secondly, you're entitled to see his answer.

 9     And, thirdly, that everybody accused of criminal behaviour is entitled to

10     have an opportunity to answer the accusation which is a central part of

11     the Prosecution's case.

12             The Prosecution, itself, agrees that the Rule is important and

13     criticises, I think, most of us for failures at some stage during the

14     case to challenge one thing or another with odd witnesses.  But given

15     especially that Pandurevic gave evidence as the last substantial witness

16     in the Defence case and that, as the Prosecution have acknowledged, there

17     was no stopwatch on cross-examination, the issues were absolutely

18     crystallised.  There is simply no excuse for failing to put to him

19     significant aspects of the Prosecution case.

20             We have analysed closely the allegations now made in the

21     Prosecution's final brief and contrasted them with the cross-examination

22     of Vinko Pandurevic.  The Prosecution's final brief is simply replete

23     with assertions that were not put to Pandurevic in cross-examination.  We

24     simply don't have the time to list them all, but where relevant as we go

25     through the relevance, we will highlight assertions in the final brief

Page 34760

 1     not put to Pandurevic in cross-examination.  For present purposes and

 2     simply to highlight the evil in this, I'll illustrate that to you with

 3     three examples.

 4             The first:  In paragraph 1537 of the Prosecution's brief, the

 5     Prosecution avers that the performance of the reburial operation on the

 6     27th of September is also consistent with the Zvornik Brigade's use of an

 7     unusually large amount of D2 diesel on that date, 3.870 litres, without

 8     any description in the daily combat report of legitimate engineering

 9     works in the Zvornik Brigade zone of responsibility.  This is, indeed, an

10     apparently compelling point and one which might suggest that the reburial

11     operation was in full swing on the 27th of September, and that Pandurevic

12     could not have failed to know about it.  However, the document upon which

13     this assertion is based bears a little closer analysis.

14             And I'm not going to call much into e-court during the course of

15     these submissions, but I will call this.  It's 7D681, and we'll need to

16     look at paragraph 6, please.  Thank you.

17             At paragraph 6, as you'll see, records in standard pro forma

18     terms consumption, and every regular combat report has that at

19     paragraph 6.  Let us all agree that 3.800 litres is a lot of diesel to

20     consume in one day.  Indeed, it's probably far more than ten digging

21     machines operating all day could consume.  But let's look at paragraph 6

22     a little more closely.  It seems that on that day, diesel was not the

23     only commodity that was being excessively used.  If 3.800 litres of

24     diesel is a lot, 12.600 7.62-millimetre rounds is the sort of amount of

25     rate of ordinance discharge you would have expected on the Somme in 1914.

Page 34761

 1     It's massive.  A thousand 12.7-millimetre rounds, 320 30-millimetre

 2     rounds, 20 122-millimetre shells, 10 130-millimetre shells.  We submit

 3     that that level of use of fuel and ammunition cannot possibly reflect the

 4     use of materials on the 27th of September.  So what does it mean?  The

 5     answer is:  I don't know.  But if this document had been put to

 6     Pandurevic when he gave evidence, and it had been suggested to him that

 7     this amount of fuel had been used for reburials on that day, he might

 8     have been able to explain it.  He might, for example, have said that

 9     sometimes under paragraph 6 the brigade told the corps command what it

10     needed.  If this document had been shown to PW-168, he might have been

11     able to say that this fuel and ammunition related to the fuel and

12     ammunition required by the 2nd Drinski Brigade which left for the Krajina

13     the day before, the 26th of September.  If this document had been put to

14     Sreten Milosevic, the assistant commander for logistics, responsible for

15     such matters, he might have offered yet another explanation, perhaps that

16     the amounts were what the brigade had in stock.  But this document was

17     shown to nobody by the Prosecution.  It was simply used as the basis for

18     a submission in their final brief.  And we submit that the inference they

19     require you to make or invite you to make in the circumstances is simply

20     impermissible.

21             A second example of a matter not being put:  In paragraphs 1340

22     to 1343 of the Prosecution brief, the Prosecution makes, apparently, four

23     assertions:  One, that members of the Drina Wolves were in Potocari; two,

24     that those members of the Drina Wolves were part of Tactical Group 1;

25     three, that they were under the command of Vinko Pandurevic; and, four,

Page 34762

 1     that they would have reported back to him what they saw in Potocari.

 2     It's clear, the answer.  Not one of those propositions was put to

 3     Pandurevic when he gave his evidence, not one.  Had they been, who knows

 4     what he might have said.  He might have said, I took a roll-call of my

 5     men on the 12th of July, and they were all there, so these people

 6     couldn't have been from Tactical Group 1.  He might have said that Krstic

 7     had asked him for two or three men to be at his disposal on the morning

 8     of the 12th of July in Potocari, and these were them.  But we'll never

 9     know because it was never put.

10             The evidence in the case is that the Drina Wolves were a unit

11     comprising about 360 men.  You'll get that from P382.  The evidence is

12     absolutely clear and unchallenged.  They were in the Drina Corps unit

13     under the direct command on the 12th of July of General Zivanovic.  In

14     July of 1995, various elements of the unit were deployed in the Sarajevo

15     theatre - see footnote 567 of our brief - and with Tactical Group 1.

16     About 120 of them were part of Tactical Group 1.  By necessary inference,

17     a number of them were not deployed at all on the 12th of July.  There

18     simply is no evidence that even if there were odd members of the Drina

19     Wolves in Potocari on the 12th, that they were under Pandurevic's command

20     or that they were the Drina Wolves that were part of Tactical Group 1.

21     Under the principle that the senior officer present is in command of a

22     mixed unit, then Mladic must have been in command of what was going on in

23     Potocari, or Krstic at worst.

24             As to the suggestion that the Drina Wolves were in Potocari, in

25     our submission, it doesn't make any sense.  You don't send your elite

Page 34763

 1     fighting unit to take part in crowd control.  The units that were in

 2     Potocari were security officers and police units, not fighting units.

 3     Self-evidently, Pandurevic wasn't in Potocari, himself.  So how could

 4     they get their orders from him if he wasn't there?  Moreover, there is

 5     virtually nobody who is not on some piece of film or still photograph.

 6     Potocari was filmed from a number of sources and perspectives, and had

 7     there been any Drina Wolves members, they would have to have been on

 8     films or photographs.

 9             Again, the failure to put this suggestion or these suggestions to

10     Pandurevic simply makes it impossible for you to draw the inference,

11     adverse to him, that these men were Drina Wolves, were from his unit,

12     were under his command, and would have reported to him.  It's a complete

13     false theory.

14             The third suggestion which I raise by way of an example appears

15     in paragraph 1337 of the Prosecution's final brief.  That reads as

16     follows:

17             "Pandurevic's admission that units under his command, as opposed

18     to the units from the 2nd Romanija Brigade or the 1st Birac Brigade, took

19     the features around the town of Srebrenica, and ultimately the town

20     itself is significant, because the UN's Bravo Company compound and the

21     Muslim population in it were shelled at around noon on the 11th of July,

22     injuring several people.  Pandurevic knew that these indiscriminate

23     shelling attacks were occurring and were carried out by the units under

24     his command."

25             This assertion is bordering on the outrageous.  Nothing of this

Page 34764

 1     was put to Pandurevic.  Had it been so, he might have been able to

 2     explain that the timings were all wrong, that his units didn't take the

 3     surrounding features until much later in the afternoon, that the town by

 4     then was empty, that his artillery units had been withdrawn somewhere

 5     else, or just simply that it is not true, that he didn't know these

 6     things, that units under his command did not shell Compound Bravo.  There

 7     is simply no basis for even inviting this inference.

 8             In the circumstances, and I do not apologise for taking some

 9     little time with these three examples - I can't do it with every one of

10     them - but as we go through the evidence I will be inviting you to the

11     view that where an accused has given evidence on a particular issue and

12     the Prosecution fails to challenge it, he is entitled and the

13     Trial Chamber is entitled to regard that as uncontested, and assertions

14     in the final brief by the Prosecution on matters which haven't been put

15     to Pandurevic ought simply to be disregarded.  Unless that is the

16     consequence on the breach of the Rule, there is no point in having the

17     Rule at all.

18             The evidence of Vinko Pandurevic stands to be judged by exactly

19     the same standards as that of any other witness.  I don't say that to

20     insult the intelligence of professional judges, but he is no more and no

21     less credible by reason of his standing accused on this indictment.

22             In paragraph 1279 of the Prosecution's final brief at the foot of

23     page 362 and going over to page 363, there is an assertion by the

24     Prosecution which purports to be supported by legal authority.  Whilst

25     the Defence accept that the Prosecution is perfectly entitled to invite

Page 34765

 1     the Trial Chamber not to believe the accused on some or all of his

 2     evidence, to submit that the Trial Chamber should not do so as a matter

 3     of law, where it is uncorroborated, is not only wholly disingenuous, it's

 4     irresponsible and incorrect.

 5             It is, of course, the law in many jurisdictions that an accused's

 6     evidence against a co-accused needs corroboration, but the decision in

 7     Delalic was based on its own particular facts; in particular, that the

 8     accused concerned who gave evidence had a mental state that was seriously

 9     in issue.  And to invite you to extend that principle to the lengths that

10     it is suggested in paragraph 1279 is quite wrong.

11             Pandurevic's credibility is for you to judge.  You saw him and

12     heard him, and you are able to judge whether his answer on any given

13     issue is both truthful and reliable.  And we do invite you to look again

14     with care at his evidence and, in particular, the answers he gave in

15     cross-examination, in detail.  His evidence is substantially consistent

16     with all the other evidence in the case, leaving aside most notably,

17     perhaps, the evidence of PW-168.  It is a central irony of this case that

18     some of those who question his credibility concurrently present cases

19     which necessarily involve them alleging that 8, 10, or 14 witnesses,

20     including their former colleagues and friends, have conspired to lie

21     about them, that documents which implicate them are forged, and that

22     their unwittingly captured radio conversations were either incapable of

23     capture, were mis-transcribed, or are now misconstrued.  Little wonder

24     that the inconvenient evidence of Pandurevic against them is added to

25     their conspiracy theories.

Page 34766

 1             Pandurevic's evidence is heavily relied upon both by the

 2     Prosecution and other parties in this case.  Listing every footnote would

 3     be boring, but we invite you to note how frequently his evidence is said

 4     to be truthful in different parts of both the OTP and other Defence

 5     briefs.

 6             Pandurevic's evidence involved giving details of events which he

 7     was not compelled to do by the Prosecution case and which might have been

 8     taken to be incriminating.  To give you a few examples:  That soldiers

 9     under his command were responsible for the taking of UN observation

10     posts; that he met and spoke to General Krstic on a number of occasions,

11     not proved as part of the Prosecution's case; that he learnt of the

12     reburial operation shortly after his return to the Zvornik Brigade in

13     late September; that these, we say, supplement and support his general

14     credibility.  Please also remind yourselves of the points we made in our

15     final brief as to his credibility, about his stance on intercepts,

16     contemporaneous documents, and the general conduct of his case.

17             Paragraph 1279 of the Prosecution brief, after misrepresenting

18     the law, as we have submitted, on the treatment of the accused's

19     evidence, goes on to list a series of what I will call areas of dispute

20     in the case between the Prosecution and Pandurevic, which it terms

21     deliberate falsehoods.  The Defence cautions strongly against the

22     approach advocated by the Prosecution.  The Trial Chamber, of course,

23     knows that these are the points where the Prosecution and the Defence

24     disagree.  That does not make them deliberate falsehoods.  These are the

25     issues for you to decide.  We reiterate the points that by giving his

Page 34767

 1     evidence, the Prosecution's burden of proving their case and, at the same

 2     time, disproving his evidence, is the harder.  It is not a deliberate lie

 3     to say you disagree with the Prosecution case.

 4             Now, an extraordinary amount of time has been devoted by the

 5     Prosecution, in its final brief, to 1993.  At what relevance those

 6     passages and further submissions made the other day by Mr. McCloskey have

 7     is unclear.

 8             At paragraph 1281 of its final brief, the Prosecution state that

 9     its case does not depend on Pandurevic's role in the VRS campaign in

10     1993.  It goes on to say, however, Pandurevic spent a significant amount

11     of time testifying about his participation in these events,

12     misrepresenting his role, and putting forward a sanitised and misleading

13     version of events.  It concludes by saying that the materials set forth

14     in paragraphs 1282 to 1312 demonstrate his lack of credibility as a

15     witness as well as his knowledge and intent with respect to the charged

16     JCEs.  On the face of it, the only issue all this material could go to,

17     it not being part of the Prosecution case against Pandurevic, is to his

18     credibility.  However, we're not naive.  Directive 4 and the

19     Spring Offensive has always been at the heart of the Prosecution's case,

20     and to suggest that Pandurevic would not have been cross-examined about

21     it, had he not raised it first, is unworthy of a straightforward

22     prosecutor.

23             Apart from anything else, Pandurevic's role in Kamenica and

24     Konjevic Polje was first put to a witness in June 2007 by the Prosecution

25     and raised in detail with Milenko Jevdjevic two months before he

Page 34768

 1     testified.  We will now briefly address those allegations in this part of

 2     the Prosecution's brief.

 3             Paragraphs 1285 to 1288 discusses the issue of Kamenica.

 4     Kamenica was not part of Pandurevic's case from the beginning.  You can

 5     see that from the 65 ter summaries served in his case.  No reference was

 6     made to it in the opening of his case, and certainly at no time have

 7     either he -- has either he or I described him as the hero of Kamenica.

 8     The evidence about Kamenica came out as a result of the Prosecution's

 9     cross-examination of Milenko Jevdjevic at T-29718, which the Defence then

10     tidied up in re-examination by putting into evidence the regular combat

11     report 7D1006.  This was a month before Pandurevic commenced to give

12     evidence.  The matter having been raised in that way, it was inevitable

13     that Pandurevic would deal with it in his own evidence and explained what

14     happened.

15             Kamenica has been fundamentally misunderstood by the Prosecution.

16     This was not the passing of a column such as took place, for example, in

17     Baljkovica.  This was an arrangement for a daily passage along a safe

18     corridor.  There is abundant evidence that at the time of this operation,

19     Kamenica itself was uninhabited and had been for some time, and you can

20     find that at T-12803, the evidence of Miodrag Dragutinovic, and T-0799,

21     the evidence of Vinko Pandurevic.

22             Read chronologically, the problems with the passage of lost

23     people across a combat zone first came to Vinko Pandurevic's attention on

24     the 30th of January, 1993, and you can see that from the document put to

25     him, P4233.  As a result of that, a radio announcement was made, and he

Page 34769

 1     announced directly to those who wished to cross the combat zone that they

 2     could do so between certain hours of the day.  You will get that from

 3     P4229 and 7D1006, the regular combat report for the 1st of February.  You

 4     will note that that document was dispatched at 11.40 in the morning.

 5             At 9.00 that night, General Zivanovic sent a report from the

 6     corps to the Main Staff.  He announced that he had taken the decision to

 7     create a safe passage.  That, in fairness, was put to Pandurevic when he

 8     gave evidence.  It wasn't a document that he had written, but he came up

 9     with the obvious explanation, that he reported to General Zivanovic what

10     he had done and General Zivanovic then took upon the decision for

11     himself.  The chronology makes that perfectly logical.

12             By contrast, the incident at Ustipraca five months later has been

13     part of the Defence case from the very outset, and you will see that from

14     our 65 ter list.  The episode which Pandurevic relied upon in his

15     evidence as illustrating an identical situation to that he faced at

16     Baljkovica was the safe passage allowed there.  This incident was

17     described in great detail by four witnesses: Pandurevic, himself; Dragica

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted).  Pandurevic, himself, wasn't challenged about his

23     actions at Ustipraca.  Thus, it was never suggested to him that he had

24     ever been anything other than truthful or accurate about these events.

25             When you read or re-read the Prosecution's final brief about the

Page 34770

 1     events of 1993, you will find not one word about Ustipraca.  It has

 2     simply been ignored.  And the Defence submit that it is deliberately

 3     ignored, Ustipraca, and deliberately sought to confuse you by confusing

 4     that with the episode of Kamenica which it raised and pursued.  It cannot

 5     be an accident that the former is referred to so often and the latter not

 6     addressed at all.  That is because we submit that the Prosecution is

 7     fully aware that Pandurevic's behaviour on that occasion is a highly

 8     relevant and pertinent consideration in your concluding how to determine

 9     his actions at Baljkovica.

10             Paragraphs 1289 to 1297 deal with allegations that in the early

11     spring or perhaps late winter of 1993, Pandurevic was responsible for

12     shelling Muslim civilians.  We make four brief points:  Firstly, that

13     every document referred to in those paragraphs references mixed military

14     and civilian targets; P409.70, referenced by Pandurevic in his own

15     evidence, deals with the legality of mixed military and civilian targets

16     and attacks upon them; thirdly, the recording of these events accurately

17     stands to Pandurevic's credit, not to his demerit; and, fourthly, the

18     fact that the Drina Corps removed references to civilians from its own

19     reports is, frankly, irrelevant when considering Pandurevic's intentions

20     or credibility.

21             At paragraph 1295, an episode at Konjevic Polje is raised.  We

22     would point again simply to four matters.  The reference in the report in

23     paragraph 1295 is to civilians being caught in the fire.  There is an

24     obvious inference from that that civilians were not the target of the

25     fire.  Secondly, it is not a proper inference to draw that a unit under

Page 34771

 1     the control of Pandurevic fired two isolated shells after 1530 in the

 2     afternoon.  Three, the report 5D1323, relied upon by the Prosecution, is

 3     dated the 15th of September, 1993, eight months after the incident

 4     described.  The entire document describes military operations between

 5     January and August 1993, without any specification as to dates.  There is

 6     no evidence that it is referring therein to the incident of the 12th of

 7     February covered by this instant and this passage in the Prosecution's

 8     brief.  And, fourthly, in spite of his own evidence, the evidence

 9     discloses that once contacted, the shelling did stop.

10             Paragraphs 1298 to 1306 of the Prosecution's brief deal with

11     allegations relating to the burning of Muslim villages.  We submit that

12     the suggestion that Pandurevic's troops burned houses is based on the

13     most tenuous evidence imaginable.  He has described in great detail the

14     military campaign that he participated in during this period.  He has

15     denied that his units burned houses or destroyed mosques.  The evidence

16     that someone else reported to General Zivanovic that houses were burning

17     on his particular axis of attack, and that the Zvornik Brigade cleared

18     away an already-destroyed mosque one year after the event, doesn't get

19     close to surmounting that evidential obstacle.

20             There is no evidence of the destruction of habitat in any areas

21     where Pandurevic was principally involved.  Kamenica, Konjevic Polje,

22     self-evidently, since he was active in preventing it, Ustipraca,

23     Visegrad, Zeleni Jadar, Zivkovo Brdo, Rajna, Bojna, all the areas where

24     you have heard he carried out combat operations, there is no evidence of

25     the burning of any habitat.  And don't you think there would have been

Page 34772

 1     some evidence if those things had happened?

 2             As to the relevance of these events, over and above a challenge

 3     to his credibility, we submit that the Prosecution position is illogical.

 4     Just because an accused has the temerity to explain his involvement in

 5     events he would undoubtedly be cross-examined about doesn't make them

 6     relevant to establishing his participation in one or both of the alleged

 7     JCEs.  The obvious corollary would be if he stayed silent about these

 8     matters, they wouldn't be relevant, and that can't be correct.

 9             I confess to this day I am still not clear where it is that I

10     will find the alleged illegal purpose of Krivaja 95.  It has been

11     variously suggested to exist in the six strategic goals of May 1992,

12     Directive 4 from November 1992, Directive 7, Drina Corps Operational

13     Directive 7.2, and the combat order itself.

14             I must be going very fast.

15             In our submission, it is unthinkable that a court would determine

16     the individual criminal responsibility of a soldier, professional or

17     otherwise, by reference to the political doctrine or strategic objectives

18     of his native country, especially those espoused at the start of ethnic

19     conflict or at the height of the violence between two communities.  To do

20     so would come preciously close to finding that all Serbs had and

21     continued to have throughout the duration of the war the common intent to

22     commit genocide and/or crimes against humanity.

23             Moreover, to rely upon the utterances of government or strategic

24     command from 1992 ignores all temporal considerations.  It is as if two

25     years didn't happen, there were no cease-fire agreements, no peace

Page 34773

 1     negotiations, the international community was not involved, there were no

 2     periods of peace, there were no flagrant breaches of the terms of the

 3     agreements by the enemy which more immediately necessitated the operation

 4     with which we are concerned.  It also completely ignores the reality of

 5     the situation in Bosnia in 1992.

 6             The Prosecution perennially speaks in its final brief and in its

 7     submissions of a brutal campaign in 1993 or a violent VRS campaign.  The

 8     beginning of this war was violent.  We will concede that.  But this Trial

 9     Chamber only has the sketchiest details of the combat in Podrinje from

10     the start of the war until the campaign which concerns this trial.  The

11     Prosecution really only want you to consider one period, one part, and

12     one side of the conflict.  They ignore the evidence such as 7D1124,

13     7D1125, 7D946, 7D968, 7D965, 7D992, and 993, which set out, as it were,

14     the violence which was committed upon the Serbian community by its enemy.

15     Pandurevic described his whole war, including all the military operations

16     he took part in.  These were classic military operations, and he is not

17     charged with any crime against humanity or war crime in relation to them.

18             The problems created by the Prosecution's dual goals or twin

19     objective theory lies first, as I have already said, in divining their

20     derivation.  Are they derived in 1992 or are they derived from the

21     documents of 1995?  We submit that some -- the idea of some over-arching

22     objective on which the combat plan was based, taken to its logical

23     conclusion, would mean that quite literally nobody subject to it could

24     act lawfully.  If, for example, the determining document is said to be

25     Directive 7, then every Drina Corps soldier, going about his daily

Page 34774

 1     business, would have been doing so with the ancillary intention of making

 2     life unbearable for the inhabitants of the enclaves.  Imagine this:  One

 3     day, you are manning the lines, doubtless thereby effectively tying down

 4     enemy resources, the next, with a stroke of General Miletic's pen, you're

 5     a party to forcible transfer merely by doing the same thing.

 6             The combat order Krivaja 95 does not, in fact, express more than

 7     one objective, we submit, rather than express the same objective in a

 8     number of ways; we suggest four:  One, separation of the enclaves; two,

 9     reduction of the enclaves to their urban areas; three, creating

10     conditions for the elimination of the enclaves; four -- I'm sorry, I'm

11     going too fast again.  Thank you.

12             The urban area is not defined, but the extent of the military

13     objectives is defined.  For example, Tactical Group 1 had to achieve

14     Zivkovo Brdo, so if you look at the detailed objectives of the combat

15     order, it would still leave a substantial area easily sufficient for the

16     population to live in.  Thus, the Prosecution assertion of that the

17     objective of reducing the enclave in size was intended to cause a

18     humanitarian disaster and, thus, criminal, is a false assumption.

19             JUDGE KWON:  Sorry, Mr. Haynes, did you say the fourth objective?

20             MR. HAYNES:  I'll have to come back to that.  Thank you.

21             Also, the phrase "elimination of the enclave," paragraph 4, is

22     ambiguous, and it is not safe to assume that it meant forcible transfer

23     of the population rather than neutralisation of the 28th Division as a

24     military force.  Apart from anything else, it doesn't make sense to say

25     "reduce in size and create conditions for its elimination" if your

Page 34775

 1     objective is so to constrict it that everybody would have no choice but

 2     to leave then.  It is plain that what is meant is to create a new

 3     perimeter which is easier to police and stop excursions by the ABiH into

 4     Serbian territory, because, necessarily, the smaller the perimeter, the

 5     less soldiers you need to guard it, thus you would eliminate the enclave

 6     as a military feature, not as a place for people to live.

 7             We're bound to observe, in relation to the case of the dual

 8     goals:  Firstly, that the way in which the Prosecution's case is put in

 9     this trial is inconsistent with the way it was put in Blagojevic and

10     Krstic; see Krstic at para 136 and -- sorry, Krstic, para 199, and

11     Blagojevic, 136.  Secondly, the VRS force wasn't sufficient to achieve

12     the illegal objective as alleged.  Even the Prosecution contend that any

13     one of the number of factors occurring would have stopped the illegal

14     objective from being achieved, Naser Oric being there, the 28th Division

15     putting up a proper fight, Clear Skies on the 11th of July allowing NATO

16     to drop bombs on Serbian forces, et cetera.  Thirdly, when Pandurevic

17     departed to the operation, he expected nothing to come of it, and that,

18     we say, is proof of his intentions.  Fourthly, when he achieved his

19     objective under Krivaja 95, namely, the taking of Zivkovo Brdo, he and

20     his forces withdrew, and his evidence is that he expected to go home.

21     And lastly but not leastly, he was a tactical commander whose concerns

22     were local, and insofar as the orders from above were concerned, were

23     specific.

24             In relation to the dual goals of Krivaja 95, the Trial Chamber

25     has visibly been concerned with where you draw the line, and it received

Page 34776

 1     some assistance on that point from Mr. McCloskey the other day.  It is

 2     interesting to see whether their theory as to that bears out any careful

 3     scrutiny of the way in which this case is now put, and the Trial Chamber

 4     might briefly like to consider how the indictment is framed in deciding

 5     where you draw the line between those who are participating in the joint

 6     criminal enterprise forcibly to transfer the population and those who are

 7     not.

 8             The Prosecution contend, at paragraph 1620 of its final brief,

 9     that Pandurevic was in a precisely similar position to the tactical

10     commands of other brigades, in particular Mirko Trivic and

11     Svetozar Andric, and certainly it is true all of them took part in

12     Krivaja 95 and all of them are brigade commanders.  All of them commanded

13     units which attacked Muslim forces at Srebrenica.  All of them entered

14     Srebrenica town.  All of them were present at a meeting at the

15     headquarters of the Bratunac Brigade, whenever that took place, and all

16     of them marched towards Zepa.  Trivic and Andric took part in the assault

17     on Zepa between the 14th and the 24th of July.  Trivic and Andric had

18     units in Zepa throughout that period, and they also, if you have regard

19     to Trivic's diary, P4309, took part in the loading of civilians onto

20     buses.  Self-evidently, neither of them have been indicted.  And more

21     importantly, if you have regard to paragraph 97 of the indictment, the

22     only brigade commanders listing as participating in a JCE are Pandurevic

23     and Blagojevic.  Moreover, in paragraph 98 of the indictment, Trivic's

24     unit, the Romanija Brigade, is not even listed as a participating unit in

25     the implementation of the JCEs.

Page 34777

 1             When Trivic testified, the Prosecution was specifically asked by

 2     His Honour Judge Kwon at the start of his testimony on the 18th of May,

 3     2007, whether a Rule 90 warning should be given to him, and the

 4     Prosecution said, in clear terms, one was not necessary.  That's at

 5     T-11793.  So the Prosecution's position is, necessarily, that, in

 6     particular Trivic, and by necessary inference Andric, are guilty of no

 7     criminal behaviour.  They were not part, apparently, of a joint criminal

 8     enterprise forcibly to transfer, that neither had the intention for

 9     forcible transfer, neither aided and abetted in forcible transfer.  In

10     short, neither is guilty of any criminal behaviour at all.

11             Given their identical roles and their presence at the alleged

12     crucial meeting in Bratunac, where is the line of distinction now between

13     Pandurevic and Blagojevic and the other two?  The answer, in our

14     submission, is perfectly simple.  Criminal liability in this case has got

15     nothing whatsoever to do with knowledge of the legality or otherwise of

16     the Krivaja 95 operation.  It has nothing to do with whether you had

17     seen, read, or considered Directive 7, nothing to do with whether your

18     units encountered DutchBat on the outside of one or other of the

19     enclaves, nothing to do with whether you saw or participated in the

20     evacuation of the civilians.  The sole determining factor as to whether

21     you, as a brigade commander, are deemed criminally liable for

22     participation in the JCE to forcibly transfer civilians is whether

23     prisoners ultimately die in the municipality where your command post was

24     based.

25             And that may be a convenient moment to take a break.

Page 34778

 1             JUDGE AGIUS:  Thank you, Mr. Haynes.

 2             We'll have a 25-minute break starting from now.  Thank you.

 3                           --- Recess taken at 10.28 a.m.

 4                           --- On resuming at 11.00 a.m.

 5             JUDGE AGIUS:  Mr. Haynes.

 6             MR. HAYNES:  This may be bad news for the interpreters, but I do

 7     need to speed up a little bit.

 8             I'm going to move quickly on over a couple of topics I was going

 9     to cover to that event and directly to the area which may cause me to be

10     accused of unmitigated arrogance.  I'm going to deal with the question of

11     the meeting at the Bratunac Brigade.  This is dealt with extensively in

12     both our brief and the Prosecution's final brief, but just a few points,

13     please.

14             Firstly, Trivic's diary and his evidence are not independent

15     evidential sources.  They stand and fall together.  And if you needed a

16     transcript reference for that, it would be T-11978, where Trivic,

17     himself, concedes that point.

18             There are, we submit, a number of compelling reasons as to why

19     Trivic's recollection and recording of the meeting on the 12th of July

20     simply cannot be right.  There are seven.  Firstly, according to his

21     recollection, there were no prisoners in the center of Bratunac on the

22     evening that he attended a meeting.  Secondly, there was no information

23     at the meeting he attended about the whereabouts of the 28th Division.

24     Thirdly, that on the afternoon or late evening of the 11th of July,

25     General Mladic, as we saw on the video, had been exhorting all his

Page 34779

 1     officers, Trivic included, to go to Bratunac that evening.  It only makes

 2     sense that they would.  Fourthly, there were no buses in Potocari when

 3     Trivic passed through it on the evening he went to the meeting, only

 4     people.  That can only have been the 11th, not the 12th.  Fifthly, during

 5     the meeting Mladic received a telephone call which Trivic overheard

 6     relating to the provision of fuel for buses.  This is directly sequential

 7     to the conversation Mladic had had with Karremans at the first

 8     Hotel Fontana meeting about the provision of transport and fuel for the

 9     evacuation.  No such conversation could have taken place on the 12th of

10     July.  Sixthly, Trivic's evidence was that the conversation he overheard

11     was Mladic arranging the commencement of transportation from Potocari the

12     following day.  That's at T-11980 to 981.  That night, he saw no buses in

13     Potocari.  And, seventhly, Trivic said in evidence that he passed through

14     Potocari again on the day after the meeting he had attended in the

15     afternoon, and he then saw large crowds of people being loaded onto

16     buses.  The evidence from DutchBat officers is that the evacuation was

17     completed by about 5.00 p.m. on the afternoon of the 13th.  Accordingly,

18     there could have been no large crowds there on that afternoon for him to

19     see.

20             The diary itself, we submit, is ambiguous as to the date.  And

21     for the second time and possibly the last time, I'm going to call a

22     document into e-court.  It's already on the screen, and in particular the

23     passage relied upon by the Prosecution in its final brief needs your

24     attention.  It reads:

25             "By 8.00 tomorrow, General Kostic," that must be Krstic, "must

Page 34780

 1     prepare a decision for the liberation of Zepa."

 2             And continues further down:

 3             "In the morning of the 13th of July, at 10.00, General Mladic

 4     will personally address the soldiers in the vehicles sector at the line

 5     reached."

 6             What is significant about this record is, firstly, that Trivic

 7     has recorded an order by Mladic to Krstic to produce not an order, but a

 8     decision by 8.00 the following morning.  The Prosecution have

 9     conveniently overlooked that fact in linking this diary entry to the

10     production of the order for combat produced by Krstic on the 13th of

11     July.  However, the more logical link between what is written here and

12     subsequent events is that Krstic arrived at a decision by 8.00 on the

13     12th and then went to the Bojna repeater at 9.00, where he met the

14     commanders and announced his decision to sweep the terrain towards Viogor

15     prior to the action in Zepa commencing.

16             Secondly, and we submit significantly, why Trivic would have

17     recorded in the very next entry that Mladic would have addressed the

18     soldiers at 10.00 on the 13th of July, rather than "tomorrow," makes no

19     sense.  The use of the phrase "the 13th of July" in that entry plainly

20     implies that the following day was not the 13th of July.

21             Most of the other evidence touching on this meeting has been

22     substantially reviewed in the briefs, and I'm not going to go over it

23     again.  However, two additional pieces which require, I submit, your

24     attention:  Firstly, the evidence of Miodrag Dragutinovic.  His evidence,

25     we submit, is doubly relevant because he said not only that Pandurevic

Page 34781

 1     told him on the 12th that the meeting had been on the previous evening,

 2     but also that, critically, at 5.00 in the afternoon of the 12th, when

 3     Krstic, as we know, went to Viogor to meet the commanders, Krstic told

 4     him that Mladic would come the following day to address the troops.

 5     Krstic could not have known that if Mladic only said that at a meeting

 6     five hours after he spoke to Miodrag Dragutinovic.  Therefore, Krstic

 7     must have known that from a meeting which took place the previous

 8     evening.

 9             I know it's been a very long trial, but you might remember

10     Miodrag Dragutinovic, the operations officer from the Zvornik Brigade, a

11     chartered surveyor by profession, a small, measured, and quiet man, who

12     probably gave some of the most reliable and credible evidence that the

13     Trial Chamber's heard in three years, in our submission.  He was called

14     as a Prosecution witness.  They didn't have to call him, but they did.

15     And to suggest now, again without any contradiction of his account during

16     re-examination which was then permissible, that he is lying, that, we

17     submit, is inappropriate and incorrect.  He had been the subject of a

18     146-page interview.  They knew what he was going to say, and he was not

19     challenged about it, and was called as a witness of truth.  His

20     re-examination went on for several hours and was even adjourned

21     overnight.  Again, no suggestion made that he was anything less than

22     honest or accurate about the date he recalled being told by Pandurevic a

23     meeting had taken place the night before and, by Krstic, that Mladic

24     would come the following day.

25             The second point really arises directly from that, which is,

Page 34782

 1     I think we all agree, that on the early evening of the 12th of July,

 2     Krstic did go to Viogor and he did speak to all of the brigade commanders

 3     who were going to go on to Zepa.  That, in our submission, makes a

 4     nonsense of the idea that all of those people then went from Viogor back

 5     to Bratunac later that evening to discuss, doubtless, precisely the same

 6     thing.

 7             Now, there has been a lot of discussion about the date of the

 8     meeting, but almost none about its content.  The Prosecution's approach

 9     seems to be that proof of the date is sufficient and the rest can simply

10     be inferred.  Whatever was the date of the meeting, it is actually

11     instructive to look at who was not there.  Beara wasn't there; Popovic

12     wasn't there; Kosoric wasn't there; Tolimir wasn't there; Momir Nikolic

13     was nearby, but he wasn't in the meeting; Vasic was not there.  Nobody

14     from MUP was there.  And who was at Potocari?  Well, most if not all of

15     the above.  In our submission, the meetings which can be proven to have

16     taken place at around this time indicate clearly where the division of

17     function lay between the soldiers and those concerned with prisoners.

18     The people at this meeting were the military men, whose responsibility

19     would be to defeat the ABiH at Zepa, i.e., to fight.  These were not the

20     men whose concern, under the combat order or generally, was the taking or

21     detention of prisoners or the movement of civilians.

22             The Prosecution say, Why would Mladic conceal these things from

23     his military commanders?  We say the counter argument is:  Why would he

24     tell them?  He had mobilised and ordered the relevant people and

25     resources to deal with Potocari, and he didn't need his military

Page 34783

 1     commanders to do anything or know about it.

 2             The evidence as to separate meetings with security men in this

 3     case is a bit vague, but those people didn't all appear in Potocari by

 4     magic, so there must have been separate meetings and it must have been

 5     before the bussing of the population at Potocari began.  It's illogical

 6     to infer that the same matters needed further discussion with people who

 7     were about to be dispatched to fight in Zepa.  Quite simply, the argument

 8     doesn't work.  They did not need to know.

 9             Leaving aside the physical circumstances which, of course, would

10     suggest that Trivic is wrong, the Prosecution's assertion about what the

11     commanders must have known by the 12th of July are based exclusively on

12     the evidence of Momir Nikolic, which the Prosecution itself has conceded

13     cannot be relied upon where not corroborated by other reliable evidence;

14     paragraph 502.  His assertions, moreover, as to what he told Blagojevic

15     are completely without corroboration.  Accordingly, the Trial Chamber

16     should, on the Prosecution's own invitation, regard its submissions about

17     what Pandurevic must have known even if he had attended a meeting on the

18     12th of July.

19             Lastly, a submission which I've briefly touched upon, the

20     position of Trivic himself, not said to be part of a joint criminal

21     enterprise, not necessary to give him a warning under Rule 90 before he

22     gives evidence.  It is now suggested in the brief that he not only took

23     part in a meeting at which forcible transfer and murder was discussed, in

24     spite of his denials, but, moreover, that he has committed perjury on

25     that subject.  We say to make that suggestion at this stage is

Page 34784

 1     outrageous.

 2             I'm going to move on now to the sections of the Prosecution brief

 3     which deal with my client's alleged knowledge of the murder operation,

 4     and I'm going to start with the 13th of July.

 5             Firstly and foremostly, there is no doubt or dispute that between

 6     the 12th and 13th of July, Pandurevic was moving from Viogor towards

 7     Vlasenica.  You might recall that on the late evening of the 13th of

 8     July, we find him refueling his car in a convoy at a petrol station in

 9     Vlasenica.  He did not encounter any Muslim forces.  Nobody suggests that

10     he did.  There were no Muslim forces in the area through which he was

11     passing, though -- thus, there is no question of him being aware, in his

12     immediate vicinity, of the taking of any prisoners.  There's no evidence

13     of any communication between him and anybody in Bratunac, and there's

14     absolutely no reason why he should have got in touch with anybody in

15     Bratunac.

16             The Prosecution's submission that the movement of prisoners from

17     Bratunac to Zvornik was due to the presence of NGOs and international

18     agencies is completely false.  There is no evidence that that was the

19     motivation for moving the prisoners.  Deronjic's evidence is that the

20     prisoners were moved quite simply because he demanded it.  In fact, the

21     murders at Kravica, just outside Bratunac, on the main road, Cerska, and

22     the Jadar Valley, if the Prosecution's theory is believed, completely

23     destroy the notion that anybody was worried about outside agencies.  If

24     further confirmation were needed that the theory is nonsense, even after

25     the decision of Karadzic and Deronjic to move the prisoners to Zvornik,

Page 34785

 1     Beara was still looking for places to murder them in Bratunac on the

 2     morning of the 14th, so he plainly didn't care who might see him doing

 3     it.

 4             The Prosecution theory that the decision to murder all the men

 5     was taken sometime on the 12th depends entirely on the evidence, we

 6     submit, of Momir Nikolic.  Again, the Prosecution say of him, where his

 7     evidence is not corroborated, you should not rely upon it.  We say that

 8     that is not correct, and the evidence does not support any such finding,

 9     and the matter is dealt with fully in our brief.

10             It is correct that Mladic addressed the troops on the morning of

11     the 13th of July and that Krstic was there with him, but there is no

12     evidence that he talked to Pandurevic or anybody else, for that matter,

13     about the plan to murder prisoners at that stage.  And the Trial Chamber

14     has heard not only from Pandurevic, but also Trivic and Dragutinovic, and

15     no suggestion was made to them that any such information was passed.  At

16     that stage, the morning of the 13th of July, the decision to move

17     prisoners to Zvornik had not been taken, so there was no need to make

18     Pandurevic a unique recipient of such information.  The idea that Mladic

19     would share all his plans and the activities of his chief of security

20     with a load of brigade commanders involved in combat is ridiculous and

21     not supported by any evidence.

22             The decision to move the prisoners from Bratunac to Zvornik was

23     taken at a high political level, and it was taken swiftly.  The

24     Prosecution's concession at paragraph 1392 that it is unclear whether

25     Pandurevic knew that the prisoners were to be moved to Zvornik, can only

Page 34786

 1     be read as an admission that there isn't sufficient evidence to find that

 2     he did.

 3             All the evidence, we'd suggest -- we'd submit a number of things.

 4     Firstly, that the decision to move the prisoners was taken at 8.30 on the

 5     13th of July.  Secondly, that within a very short time Drago Nikolic was

 6     informed, probably by a call from Popovic, though the Prosecution's

 7     position on that is far from clear.  Thirdly, that Beara didn't want to

 8     move the prisoners and that even the following day he was trying to find

 9     a way to kill them in Bratunac.  And, fourthly, while all this was going

10     on, Vinko Pandurevic was marching towards Zepa.

11             There is no evidence that anybody contacted Pandurevic, and why

12     would they?  Firstly, if the Zvornik Brigade commander needed to be

13     warned to get ready for some prisoners, the person to tell was Obrenovic,

14     who was in command of the Zvornik Brigade on the 13th of July.  Telling

15     Pandurevic, who was on a completely different mission, marching towards

16     Zepa, was out of radio communication with the brigade, would be

17     practically useless.  Secondly, the last thing Beara wanted was another

18     municipality telling him he couldn't kill his prisoners there.  He wanted

19     this over and done with quickly and efficiently.  Accordingly, the

20     evidence that Pandurevic knew depends exclusively upon PW-168's assertion

21     that Drago Nikolic told him that Pandurevic knew.  That would necessarily

22     depend on some contact being made with Pandurevic on the march, between

23     the time when the decision to move prisoners was taken in Deronjic's

24     office and the time when Drago Nikolic was called, but neither Deronjic,

25     nor Beara, had the means to contact Pandurevic from the SDS office, and

Page 34787

 1     Momir Nikolic for sure did not do so.  Even from the Bratunac Brigade

 2     Command, there is no evidence that Pandurevic was even contactable whilst

 3     on the march.

 4             It is significant throughout these days that when he received

 5     orders from Krstic, he received them face to face at meetings.  PW-168's

 6     evidence on this point is probably untrue.  It's designed to minimise his

 7     own personal responsibility.  (redacted)

 8   (redacted)

 9   (redacted) or that Popovic lied to Nikolic.  In any event, it is

10     impossible to conclude, as the Prosecution very nearly concedes, that

11     Pandurevic knew of the plan to move prisoners to Zvornik on the evening

12     of the 13th of July.

13             Going over to the 14th, there is no evidence even that Krstic

14     knew, by the 14th of July, that prisoners had been taken to Zvornik, and

15     there is no reason that he should have been told, because even adopting

16     the regular chain of command, Beara had no duty to report to Krstic,

17     Deronjic had no military duty at all and certainly none to report to

18     Krstic, and Momir Nikolic had no duty to report to Krstic.  As I've

19     already said, we submit that the Prosecution's warning as to the

20     testimony of Momir Nikolic means that you cannot even find that he

21     informed his own commander, because he's the only source of evidence for

22     that.  So on the 14th, in the morning, at Krivace, Krstic could not even

23     have told Pandurevic about the movement of prisoners to Zvornik.

24             Moreover, there is no evidence that anything about prisoners was

25     said at that meeting on the morning of the 14th.  Again, Pandurevic gave

Page 34788

 1     evidence about that, as did Trivic, Jevdjevic, Dragutinovic.  All were at

 2     Krivace on the morning of the 14th at the time the combat orders for

 3     Stupcanica 95 were given out, and no suggestion was put to any of them

 4     that prisoners were discussed.  We submit it cannot be inferred, contrary

 5     to the direct evidence of Pandurevic and these other four witnesses, that

 6     the Prosecution's case is correct and that information about prisoners

 7     was passed that morning.

 8             Assuming the contrary, however, and that Krstic was aware by the

 9     morning of the 14th that prisoners had been moved to Zvornik, and that he

10     did inform Vinko Pandurevic of that, what is, therefore, remarkable is

11     that at that time there is no communication between Pandurevic and the

12     Zvornik Brigade.  Of that, we can be absolutely sure, because if there

13     had been, PW-168 would for sure have told you.  The duty operations

14     officer's notebook would have recorded it, and there would probably be an

15     intercept.  That would surely have been the time to get in touch with his

16     command if he had been told about the arrival of the prisoners.  It's

17     simply inconceivable that if he had been told by Krstic on the morning of

18     the 14th of July about the movement of the prisoners that he would --

19     about the movement of the prisoners to Zvornik that: one, that he would

20     not have know about the column; two, he would not have contacted the

21     brigade; and, three, he would have taken up his positions in Zepa at all

22     as if nothing had happened.

23             Again, at paragraph 1392, the assertion that by that time the

24     murder operation was clear to everyone derives solely from the evidence

25     of Momir Nikolic, and on the Prosecution's own invitation, should be

Page 34789

 1     disregarded.

 2             Let's move forward to the morning of the 15th, please.  The

 3     Prosecution claims at paragraphs 1270, 1393 to 1398, that Pandurevic had

 4     to know or needed to know about the murder operation in order to fight

 5     the Muslim column effectively, and Krstic simply must have informed him

 6     about this before his return on the 15th of July.  We have a very great

 7     number of submissions to make about this, indeed 13.

 8             Firstly, nobody suggests that the danger which the column

 9     represented to Zvornik was known before the evening of the 14th of July.

10     The Prosecution do not even -- do not even suggest that, even at the

11     morning of the 14th, Krstic would have talked to Pandurevic about the

12     column or its dangers.  So what other operations were going on in Zvornik

13     which Krstic made and probably didn't know about had no impact.

14             Secondly, the murder operation was a Main Staff security

15     operation being carried out by security officers and military policemen

16     from the Main Staff, the Drina Corps, and the Bratunac Brigade.  There is

17     no reason a brigade commander should be told about it.

18             Thirdly, as we have demonstrated, there is no such thing as a

19     brigade zone of responsibility, so the fact that the prisoners were taken

20     to the municipality of Zvornik had nothing to do with Pandurevic.

21   (redacted)

22   (redacted)

23   (redacted).  According to PW-168, he had no idea that

24     the Zvornik Brigade resources were involved in the killing operation,

25     that is, apart from Drago Nikolic, five military policemen and two digger

Page 34790

 1     drivers.  They would have had no impact whatsoever upon the brigade's

 2     combat capabilities.  (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10             Fifthly, by the early morning of the 15th of July, the

11     information was no better.  Especially bearing in mind that the last

12     contact with Obrenovic had been on the evening of the 14th, there was no

13     information that there was a difficulty with guarding, killing, or

14     burying the prisoners available at the command post on the morning of the

15     15th.

16             Sixthly, if Obrenovic thought that the resources being used to

17     guard prisoners were compromising the brigade's combat capability, he

18     would have said so in his report on the 14th of July or at least during

19     his conversation with Jevdjevic the night previous.

20             Seventhly, as to the Zvornik Brigade resources and the allegation

21     in paragraph 1397 of the Prosecution brief that significant numbers of

22     Zvornik Brigade resources were being used up, the amount of resources

23     committed to guarding prisoners in digging graves peaked at 50 on the

24     14th of July.  During the course of the next few days, it dwindled.  The

25     Zvornik Brigade had five and a half thousand men at its disposal.  Fifty

Page 34791

 1     is less than 1 per cent of the brigade's manpower.  Not every battalion

 2     was engaged in active combat on the 14th, 15th, or 16th of July, and you

 3     had the opportunity to see the quality of some of the men who gave

 4     evidence in this case, and I mean them no disrespect, but, for example,

 5     those from the 1st Battalion, who came to speak to you and told you about

 6     standing guard, unarmed, in the vicinity of their local school.  Do you

 7     seriously think that their absence from the front-line made any

 8     difference to the Zvornik Brigade's fighting capability?

 9             Eighthly, the telegrams from Obrenovic and the other sources

10     which were available to Krstic and Pandurevic on the morning of the 15th

11     of July made no reference to the killing operation.

12             Ninthly, the intercepted telecommunications on the morning of the

13     15th of July between Pandurevic and the brigade command would negate any

14     suggestion that Pandurevic had just been informed of the killing

15     operation in Zvornik.  It is inconceivable, we say, if Krstic had just

16     told him that there were all sorts of problems arising from the killing

17     operation occurring in Zvornik and that resources were having to be

18     committed to it from the brigade, that Pandurevic would not have asked

19     about it, even in cryptic terms, when he called Mijatovic and Milosevic

20     on the morning of the 15th.  If, as the Prosecution say, he needed to

21     know from Krstic, he so much more needed to know from Zvornik Brigade

22     members what was going on on the ground, and a commander like Pandurevic

23     would for sure have inquired about that issue if he knew there was an

24     issue.

25             Tenthly, Dragan Jokic, according to the Prosecution's submission

Page 34792

 1     the other day, is a weak man.  I don't know about that, but one thing I

 2     do know is he's a very careless user of the airwaves.  You need look no

 3     further than his intercept with Colonel Beara on the evening of the 14th

 4     of July at 2102 - 1164 - or his conversation at 9.39 with Bratunac

 5     Brigade Command at 9.39 - P1176 - where he was effectively told to shut

 6     up rather than give away the whereabouts of his commander on the air, but

 7     when Dragan Jokic spoke to Pandurevic on that morning about whether there

 8     were any problems, he said nothing.  Now, that may well mean that I'm

 9     making a point in Colonel Beara's favour, because that may well mean that

10     when he referred to problems the night previously to Colonel Beara over

11     the radio waves, he was, in fact, referring to the column and nothing

12     else.  But for sure having his commander on the line, it is a stark

13     surprise that he, Dragan Jokic, doesn't say anything which

14     Vinko Pandurevic couldn't have prevented him from saying.

15             Eleven, we all know now that we can add up the men and machinery

16     that, in fact, were involved in Orahovac and Petkovci, but nobody knew

17     then and certainly nobody had knowledge then of the sort of numbers that

18     the Prosecution now allege were involved.

19             Twelfthly, if Krstic told Pandurevic about the killing operation

20     and the involvement of the Zvornik Brigade in the morning, why didn't

21     Krstic then tell Beara when he called him at 10.00 that morning, a few

22     minutes later?  Beara was complaining that he had problems.  Surely,

23     logic dictates, if Pandurevic was in the loop of knowledge, that Krstic

24     would say to Beara, Pandurevic is on his way back, knows about

25     everything.  Why don't you take a few of his men, hey, perhaps from the

Page 34793

 1     3rd Battalion?  They're not involved in combat.  If Pandurevic had been

 2     part of or knowledgeable of the killing operation and knew about the

 3     involvement of the Zvornik Brigade, there is no way Beara would not have

 4     asked for resources from the Zvornik Brigade for executions in the

 5     Zvornik area.  There is no way that Krstic wouldn't have told him

 6     Pandurevic was returning.  The only reason that Beara did not seek help

 7     from Pandurevic was that Pandurevic was not part of the plan.  This

 8     intercept is perhaps as critical as the combat report of later the same

 9     day in understanding the evidence that there is and there is not against

10     Vinko Pandurevic.  We say it is the clearest illustration that at that

11     point in time nobody could possibly infer that he had any knowledge that

12     the operation was going on.

13             Thirteenth and last, if Krstic spoke to Pandurevic on the morning

14     of the 15th about the fact that the killing operation had been moved to

15     Zvornik, why would Pandurevic, ten hours later, write him a report

16     telling him about the prisoners in the schools?  That would effectively

17     be Pandurevic writing to Krstic to say, Hey, Krle, you know those

18     prisoners you told me about this morning and the problems we've got with

19     them.  You're absolutely right, we have.  We submit that the whole

20     Prosecution theory about what Pandurevic would have needed to know and,

21     therefore, must have known from his meeting with Krstic that morning is

22     utterly false and is based upon inferences that you cannot possibly draw

23     when you look at the evidence in the round.  We do add, yet again, that

24     this is a case where the direct testimony in the case from Jevdjevic and

25     Vinko Pandurevic, as well as the hearsay evidence of Mijo Dragutinovic,

Page 34794

 1     completely rules out any such transfer of information at that stage.

 2             Now, one of the great mysteries of the case, if you accept

 3     Pandurevic might be right as to how he came progressively to know about

 4     the executions in Zvornik, may be why Dragan Obrenovic did not tell him

 5     sooner.  It is a perfectly valid question.  They had been colleagues for

 6     two and a half years and worked closely together.  They had mutual

 7     respect for each other.  You would expect Obrenovic to tell Pandurevic at

 8     the first available opportunity.  So why didn't he?  Well, let us not

 9     lose sight where the burden of proof lies in all this.  This, perhaps

10     more than any other episode in the case against Pandurevic, is one where

11     I have to remind you that it's for the Prosecution to prove beyond

12     reasonable doubt that he did, and we submit, in any event, that PW-168's

13     uncorroborated evidence alone on this topic does not discharge that

14     burden.

15             The history and the impossibility of PW-168's corridor story and

16     conversation is dealt with extensively in our brief as well in the brief

17     for Drago Nikolic.

18             In reality, the Prosecution is left with nothing else to hold

19     their case together on this topic than to cling desperately to the notion

20     that Pandurevic had to know about the security threat and that Obrenovic

21     had no reason to conceal this from his commander, but let's analyse it.

22     The following are a series of operating factors upon Obrenovic which may

23     act exclusively of each other or, in certain circumstances, in

24     combination.

25             Firstly, if PW-168's evidence about Obrenovic's conversation with

Page 34795

 1     Drago Nikolic is true, then Obrenovic would have believed that Pandurevic

 2     was already fully informed and, accordingly, he had no need to know,

 3     least of all in front of an assortment of policemen he had never met

 4     before.

 5             Secondly, conversely, it is possible that he had nothing to tell.

 6     The precise details of Obrenovic's state of knowledge of the murder

 7     operation and who was involved in it by the 15th of July, at about

 8     midday, is almost impossible to be sure about.  At the bottom end, he

 9     might have known no more than that Drago Nikolic wanted to be relieved

10     from the IKM and needed five military policemen to secure some schools.

11     At the other extreme, he might have been fully aware of the murder and

12     burial of prisoners at Orahovac and Petkovci.  The truth is almost

13     impossible to work out, as even the Prosecution concede.  Accordingly,

14     what, in fact, he knew at noon on the 15th of July, if not very much, he

15     may not have thought worth telling Pandurevic about -- he might not have

16     thought worth telling Pandurevic about, given the urgency of the military

17     situation.  In any event, he may not have had the opportunity.  Even in

18     his 2001 interviews, Obrenovic made a point of saying that he wanted to

19     report to Pandurevic.  At that time, of course, he was asserting only

20     about the military situation, but that he didn't get a proper

21     opportunity.  Pandurevic simply came into the office on the 15th of July.

22     Obrenovic briefed Pandurevic for 15 minutes, and then Obrenovic was sent

23     off to his task.  This version of how the meeting on the 15th of July was

24     conducted, whatever the state of Obrenovic's knowledge, is remarkably

25     consistent with all the evidence we now have available.  And why would he

Page 34796

 1     have lied about that in 2001?

 2             Fourthly, he may have been afraid to tell Pandurevic what he had

 3     done, or at least have wanted the possibility of time to think best how

 4     to explain himself.  Obrenovic was in the Command of the Zvornik Brigade

 5     on the 13th and 14th of July.  He made the decision to relieve

 6     Drago Nikolic of his post as duty officer and provide him with five

 7     military policemen.  He authorised the use for two excavator operators

 8     for burials at Orahovac.  Obrenovic may have been more seriously involved

 9     than that.  We just don't know.  He very well may have feared that

10     Pandurevic would disprove his actions, whatever they may have been, and

11     criticise them.

12             Fifthly, whilst Obrenovic told Pandurevic of the conversation

13     with Drago Nikolic, he did not do so, on any version of events, until

14     more than 24 hours after Pandurevic's return.  This is curious.  There,

15     of course, remains the further possibility that the conversation was made

16     up by Obrenovic in the first place, but, more importantly, that shows

17     that there must have been a second conversation between Pandurevic and

18     Obrenovic where Obrenovic revealed the genesis of his information; i.e.,

19     the number of prisoners, the involvement of Zvornik Brigade machinery,

20     whose orders they were following, et cetera.  And it may well be, as I've

21     already said, a combination of all those five reasons.  The fact of the

22     matter is you simply cannot infer that the conversation did take place

23     because there is no sensible explanation as to why it wouldn't.  We

24     suggest there are several explanations as to why it wouldn't, and we've

25     listed them there for you.  In truth, to approach it in that way, as

Page 34797

 1     Mr. Josse was addressing you about at length on Friday, is a classic case

 2     of reversing the burden of proof.  It is for the Prosecution to persuade

 3     you that PW-168's evidence is truthful and reliable, and not for

 4     Pandurevic to persuade you to the contrary.  He merely has to cause a

 5     doubt to be cast on that evidence.

 6             Given that the Prosecution, as we will submit in due course, have

 7     abandoned as truthful several important areas of PW-168's evidence, two

 8     of the most important examples being Pandurevic's presence in the Zvornik

 9     Brigade on the 12th of July and the meeting with Popovic, we submit, on

10     the 16th of July, it is the Defence submission that you cannot rely upon

11     his evidence as credible or reliable in this respect.

12             I'm going to turn now, as quickly as I may, to the irregular

13     combat report of the 15th of July.  In brief, we submit that the

14     Prosecution's analysis of this document is neither objective nor logical.

15             The Prosecution's case as to the meaning of this document is

16     circular.  The argument goes:  The report, itself, is evidence of his

17     knowledge, and because of his knowledge, you can, therefore, interpret

18     the document adversely to him.  The interpretation, we say, is based upon

19     a number of false assumptions.  The first is that enormous or tremendous

20     resources of the Zvornik Brigade were engaged in dealing with prisoners.

21     They were not.  That is simply false.  Thirty, forty, or fifty men was a

22     drop in the ocean and wouldn't have made any difference to anything.

23             Secondly, that Pandurevic knew that the murder operation was in

24     progress, that prisoners were awaiting executions, and that Zvornik

25     Brigade resources were involved in these operations, there's no evidence

Page 34798

 1     that he did, and it all depends on who told him.  If he is or might be

 2     right that the only information he had prior to writing the report came

 3     from Brano Grujic and Ljubo Bojanovic, then he had and could not have had

 4     the information that executions were taking place and that the Zvornik

 5     Brigade was involved.

 6             Thirdly, that the situation on the ground was accurately reported

 7     in the first five paragraphs, it wasn't.  The best example, perhaps, is

 8     that the report suggests that the numbers of the column which -- I'm very

 9     sorry, I'll start that again.

10             The situation on the ground was not accurately reported in the

11     first five paragraphs of the report.  Evidence suggests that the numbers

12     of the column which eventually did walk to safety were far higher than

13     those mentioned by Pandurevic in the report.

14             And fourthly and perhaps most significantly, that by the time he

15     wrote the report, Pandurevic's position was that he would allow the

16     Muslim civilians to go free, but not the soldiers.  In truth, by the

17     evening of the 15th of July, the only sticking point was whether they

18     could take their arms with them or not.  This is doubly significant,

19     firstly, because it completely negates the Prosecution's baseless

20     suggestion at paragraph 1443 of its brief that Pandurevic was fully ready

21     to destroy the army and, secondly, it adds real significance to

22     paragraph 6 of the report, the one that reads:  "I have made an offer to

23     the commander of the opposite side," et cetera.  This

24     paragraph foreshadows the report on the 16th of July in which Pandurevic

25     said it was possible that some soldiers got out with the civilians.  The

Page 34799

 1     obvious inference is, if he had already decided they could all go by the

 2     time he wrote this report, then that is what he was referring to when he

 3     said, Let them go, and it has a direct correlation with its report of the

 4     following day.

 5             A few further observations on the report.

 6             The assertion of the Prosecution made in paragraph 1449 quite

 7     simply should be disregarded and cast to one side.  Pursuant to the

 8     practice, as pointed out to Mr. McCloskey when he was putting to

 9     General Pandurevic the opinion of Mr. Radinovic in another trial, then

10     unless adopted by him, none of that has the force of evidence,

11     Mr. Radinovic's opinions in the Krstic case, whether read into the record

12     of this case or not, simply should not have found their way into

13     arguments in the Prosecution brief.  None of what he says has the force

14     of evidence, particularly when denied and disagreed with by

15     Vinko Pandurevic.

16             In relation to paragraph 1445, the suggestion that the additional

17     burden is not based on any knowledge of Pandurevic about trouble in the

18     areas, we say only this:  He had been the Zvornik Brigade commander for

19     two and a half years, he was very well acquainted with the way in which

20     battalion soldiers would react and, in particular, what was likely to

21     make them desert their posts or refuse to go to the lines.  There is a

22     stack of evidence from Pandurevic, PW-168, and Dragutinovic about the

23     occasions in when this happened during the course of the preceding three

24     years, and Pandurevic would know what the incipient dangers of prisoners

25     in schools, near to prisoners' homes, were.  He didn't have to have

Page 34800

 1     direct knowledge of any particular complaints.

 2             The reliability of Eileen Gilleece's note as a piece of evidence

 3     was specifically dealt with in our brief, and very little more needs to

 4     be said.  In reality, the Prosecution want to accord the Gilleece note

 5     with the status of a suspect interview, and we submit it cannot be

 6     regarded as such.  In virtually all jurisdictions in the latter half of

 7     the 20th century to date, it was recognised, through advances in

 8     technology and the rights of the accused, we needed to protect people in

 9     interview situations so that courts could be sure that anything said in

10     an interview situation was both accurately recorded and related to

11     answers given in a satisfactory situation; voluntariness, I suppose, is

12     the key to it all.  The Gilleece note fails on all counts.  No suspect

13     should be interviewed in these circumstances, and no record of this sort

14     ought to be used to contradict him as to the detail of what might have

15     been said.  We are absolutely sure that Ms. Gilleece, in creating this

16     note, did not envisage that it would end up being used for purposes other

17     than that for which she intended it; namely, to provide a brief note on

18     the gist of her lengthy conversation with General Pandurevic.

19             The Prosecution have simply not grasped the point which

20     Pandurevic made about pigs when he gave evidence.  What Pandurevic was

21     saying was that Richard Butler was interpreting the word "asanacija" far

22     too narrowly by merely translating it as burying the bodies.  Therefore,

23     Pandurevic used the example of pigs to show that the word means more than

24     that.  He was not saying that the reference to "asanacija" in the

25     irregular combat report of the 15th of July was a reference to the pigs

Page 34801

 1     of the 16th of July or the pigs of 1992.  He was saying that on those

 2     occasions when that happened, the clear-up of the mess was "asanacija."

 3     In many ways, the passage relied upon in the note displays the danger of

 4     using it as a verbatim record of the conversation.

 5             According to Ms. Gilleece's note, they were talking about a

 6     report from 1992 involving the 4th Battalion.  Pandurevic's immediate

 7     explanation, not ultimate, that the discussion covered both the 1992 and

 8     1995 pigs, makes perfect sense of the record and cannot simply be

 9     dismissed.

10             In relation to the note concerning the information he received

11     from the chief of staff about the presence of prisoners in Zvornik on the

12     15th of July, two mistakes are equally possible.  Firstly, that the

13     translation of the position of the man who informed him is inaccurate or,

14     secondly, that the date is wrong.  Significantly, Ms. Gilleece records

15     nothing in her note as having happened on the 16th of July, which is

16     inconceivable, because it was the 16th of July that he let the column go

17     at Baljkovica.  Where she got it wrong, we don't know, but get it wrong,

18     she did.

19             It is correct to say that in paragraph 1456 of its final brief,

20     the Prosecution identifies six areas where Eileen Gilleece's report

21     records events accurately, but what should not be forgotten is that the

22     evidence is that at least part of the discussion was conducted by

23     reference to a copy of Richard Butler's report.  History, I'm afraid,

24     does not relate which of his reports they had before them, but even a

25     cursory glance at his narrative report of 2000 would reveal references to

Page 34802

 1     Drago Nikolic and the office he held - at page 19 - his replacement by

 2     Major Galic at the IKM on the 13th of July - page 98 - and the taking of

 3     23 prisoners by the Zvornik Brigade on the 22nd of July - page 83.

 4     Gilleece's note, as we pointed out in the examination of the accused, is

 5     notably more accurate where there is a text for her to refer to.  In any

 6     event, some accuracy in the note doesn't prove its entire accuracy, and

 7     the Defence stands by its position that, as a record, it is incapable of

 8     effectively contradicting Pandurevic's evidence about the important

 9     events of 1995.

10             Lastly, nothing personal was, in fact, intended.  It is the use

11     of the record as a means of contradicting direct evidence which we

12     criticise, not Ms. Gilleece.  However, describing her as professional in

13     the circumstances of this interview is, we submit, a bridge too far.  On

14     the evidence, she broke many rules in the conduct of this interview, and

15     apart from anything else, this is one of those curious areas where there

16     is direct evidence in this case on the topic.  You might remember I asked

17     Dean Manning what he thought about conducting interviews while everybody

18     was drinking alcohol, and he said, at T-19150, that that would be

19     thoroughly bad practice.

20             The Prosecution asserts in its final brief, without any

21     evidential basis whatsoever, that the words "terena" and "teritorija" are

22     entirely different phrases.  The evidence is at T-31001 and T-32640,

23     quite to the contrary, that these two words are synonymous.  However, one

24     thing we can agree on; searching the terrain and "obezbedjenje terena"

25     are self-evidently different things.  Even the Prosecution would agree

Page 34803

 1     with that.  So the submission in paragraph 1447, that Pandurevic had

 2     already referred to "obezbedjenje terena" in paragraphs 1 to 3 of the

 3     report is palpably wrong, even on their own interpretation of these

 4     phrases.

 5             I'd just briefly like to revisit the "let them go" issue, and

 6     really make this submission:  The idea that Pandurevic could have let the

 7     prisoners of war go and chose not to do so, on the evidence you have

 8     heard, is ridiculous.  Firstly, for a start, by the time he got back to

 9     Zvornik, most of them were dead.  Secondly, he didn't know where they

10     were.  Thirdly, these prisoners were being held under the orders of

11     General Mladic, the VRS commander-in-chief, who himself had been present

12     on the ground on the 14th of July and had dedicated his chief of security

13     to the whole operation.  Fourthly, all levels of the army were involved,

14     multiple units from the Main Staff, the corps, and other brigades; also,

15     private companies and municipal organs.  The Prosecution agreed with this

16     picture of events.  It is fanciful to suggest that a 35-year-old,

17     red-headed youngster could have gone to any of these killing sites, even

18     if he had known where they were, and could have got there in time, and

19     simply let the prisoners go.

20             I'm going to leave the topic of the report because I'm running

21     out of time rapidly, but I do say that there's no compromise on this.

22     The report of the 15th of July is a difficult document to interpret.  The

23     Prosecution acknowledged it's a difficult document to interpret.

24     Richard Butler has gone through the whole spectrum of interpretations of

25     this document, and I know that you find it difficult to interpret.

Page 34804

 1     Everybody has been troubled by this.  But unless you can be satisfied

 2     that all the adverse inferences that the Prosecution wish to you draw are

 3     the only interpretations of this document, you have to resolve it in

 4     favour of the accused.  There's no ducking the issue.  If they are not

 5     inferences which you think are the only inferences you can draw and the

 6     only interpretations of this document, then it becomes wholly exculpatory

 7     of Vinko Pandurevic.  And we submit that when you do look at all the

 8     surrounding evidence, what he could have known, what he could have done,

 9     that that is the only choice faithful to the burden of proof you will

10     apply, that you can come to.

11             Now, I'm going to leave that and move on to the question of

12     command of the killing operation, and I'd like, really, to highlight for

13     you what I submit is a symbolic and important paragraph in the

14     Prosecution's brief, and it's paragraph 1468.  And I'm not going to dwell

15     on it to any great degree.

16             Why it is symbolic and significant is that that is the first

17     time, chronologically, in the whole history of events where you will find

18     any allegation in the Prosecution's brief that Pandurevic had effective

19     control of any units or elements of the Zvornik Brigade.  Symbolically

20     again, we say that when you analyse Mr. McCloskey's closing remarks the

21     other day, he talked about General Pandurevic assuming responsibility

22     when he returned on the 15th of July.  Now, if you read it as a piece, it

23     will be plain to you that despite the absence of detailed submissions,

24     the Prosecution do not concede the question of de jure command.  They

25     contend that during this period, Pandurevic remained de jure command in

Page 34805

 1     the absence of a formal replacement, and you'll find that at

 2     paragraph 1618 to 1625.  So the concession must be taken, we assume, to

 3     be to the effect that Pandurevic was not a de facto commander of the

 4     Zvornik Brigade from the 4th to the 15th of July, and you may think

 5     that's a perfectly reasonable concession on the evidence.

 6             This, we submit, marks a "volte-face" from the position the

 7     Prosecution took at the start of the case.  They have specifically, we

 8     say, abandoned the following positions:  One, that Pandurevic returned to

 9     the Zvornik Brigade Command on the morning of the 12th of July and had a

10     conversation with Dragan Obrenovic - you'll remember that well; two, that

11     he had any meaningful contact between -- sorry, that he had any

12     meaningful contact with the Zvornik Brigade Command between the 4th and

13     15th of July; and, three, that he commanded the units prior to his

14     return.  If that is right, and we submit your driven to that conclusion

15     from the absence of any arguments to the contrary in the Prosecution

16     brief, as well as the evidence, then two things must follow:  Firstly,

17     that he can have had little or no knowledge of the precise deployment of

18     elements of the Zvornik Brigade when he did return; and, secondly, that

19     there was no need for him to know anything of the murder operation in

20     Zvornik on the 13th or 14th of July, for sure, because he could have no

21     effect upon it.

22             We acknowledge, as is alleged in paragraphs 1469 to 71, that a

23     diminishing number of members of the Zvornik Brigade, in the words of the

24     Prosecution, continued to be involved after Pandurevic's return, but

25     there is no evidence that Pandurevic had any contemporaneous knowledge of

Page 34806

 1     that.  Put rhetorically, if Obrenovic didn't know, which appears to be

 2     the case, how could Pandurevic have known?  The Prosecution shouts the

 3     mantra "must have known" and "needed to know," but we invite you to

 4     consider what were the means of Pandurevic's knowledge during these

 5     critical hours.  There is no evidence in the case that any of the people

 6     who might have been able to give him information actually did give him

 7     information and that he knew that the elements of the Zvornik Brigade

 8     that were involved we now know about.

 9             We reiterated the point again that by the 15th of July, we're

10     talking about 15 to 20 soldiers.  Look at paragraph 1469.  Or, expressed

11     another way, less than 0.4 per cent of the brigade's manpower.  That's

12     roughly the equivalent of saying that Mr. Hocking has to know and needs

13     to know what one intern who's here for two weeks is doing on any

14     particular day.

15             The focus of this trial has obviously been on the Zvornik

16     Brigade, since its commander is on trial here.  However, one has to place

17     into context that a relatively small number of local conscripts listed as

18     Zvornik Brigade members chose to act as security upon discovering that

19     large numbers of enemy soldiers were being detained in schools close to

20     their homes and that a few local drivers operated machines rather than

21     leave bodies to decompose.  Prisoners were taken to Zvornik, guarded on

22     buses, put in schools, without the help of the Zvornik Brigade.  Their

23     execution was carried out by military policemen from the Drina Corps and

24     the Bratunac Brigade, soldiers from the 10th Sabotage Detachment, and

25     other unidentified and unidentifiable units.  Also, civil authorities

Page 34807

 1     took part, and machineries from private companies were being used.

 2     Against this backdrop, the sort of involvement you have heard from those

 3     few battalion soldiers is peripheral.

 4             I'm going to move on now to the drive past Orahovac on the 17th

 5     of July, paragraph 1485.  The title to this section of the Prosecution

 6     brief, in our submission, should be struck out, that there's no

 7     evidential basis for suggesting that Pandurevic and Obrenovic drove past

 8     Orahovac in the afternoon of the 17th, and whoever drafted this title did

 9     so either in complete ignorance of the evidence or in a deliberate

10     attempt to mislead.  The only evidence that Pandurevic and Obrenovic were

11     together in the area of Orahovac on the 17th of July comes from the

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17     Prosecution's final brief at all, the more so because this was not put to

18     Pandurevic when he gave evidence.  And we say by reason of that alone,

19     you should just disregard the submission.

20             At paragraphs 1505 to 1511, the Milici hospital patients and the

21     Branjevo survivors --

22             JUDGE AGIUS:  Mr. Haynes, I hate to interrupt you, but we have

23     done this with every other Defence counsel.  You have gone beyond the two

24     and a half hours that we had fixed, established.  How much longer do you

25     think you need?

Page 34808

 1             MR. HAYNES:  I thought I'd had an hour and 20 at the first break,

 2     so that means I've done what?

 3             JUDGE AGIUS:  You've passed the two hours.

 4             MR. HAYNES:  Okay.  Could I have 20 more minutes?

 5             JUDGE AGIUS:  Okay.  Yes.

 6             MR. HAYNES:  And can I have a second request?

 7             JUDGE AGIUS:  Yes.

 8             MR. HAYNES:  Can I have a break now, and that will make the next

 9     20 minutes more cohesive, I think.

10             JUDGE AGIUS:  Okay.  We'll have a break of 25 minutes.

11                           --- Recess taken at 12.15 p.m.

12                           --- On resuming at 12.46 p.m.

13             JUDGE AGIUS:  Yes, Mr. Haynes.

14             MR. HAYNES:  Thank you.  Mr. President.

15             I was, just before the break, going to deal with the question of

16     the Milici patients at paragraphs 1505 to 1511 of the Prosecution's brief

17     and what I shall call the Sljivancanin point.

18             The Trial Chamber needs to look at care, we submit, at P1309, an

19     intercepted radio communication between General Pandurevic and Cerovic.

20     We say it is plain or at least it is a reasonable inference to draw in

21     Vinko Pandurevic's favour that he, during that conversation, was entitled

22     to believe that the wounded prisoners were being taken to Batkovici, a

23     prisoner exchange camp, and that Cerovic was arranging that.  So whether

24     it was Popovic, Cerovic, or somebody else who was overseeing the

25     operation, that is Pandurevic's evidence as to what he thought would

Page 34809

 1     happen, so he did, we submit, satisfy himself sufficiently that those

 2     prisoners would be afforded the treatment they were entitled to.  Add to

 3     that, please, the fact that contemporaneously with this, Pandurevic did

 4     successfully arrange for all the other prisoners at Standard to go to

 5     Batkovic and be exchanged.  As a matter of fact, several of those

 6     prisoners had been people who escaped executions.  Indeed, there was no

 7     reason to suppose, during that period of time, that anybody taken

 8     prisoner was more or less likely to be a witness of war crimes than

 9     anybody else, so the fact that he sent 150 for exchange is an indication

10     that they were all being treated similarly.

11             The intercept is P1309, not P1009.

12             I'm going to move on very swiftly now, please, to the question of

13     effective control of the killing operation in Zvornik.

14             In determining the individual criminal responsibility as well as

15     the command responsibility of the accused on this indictment in relation

16     to the murders in Zvornik, we submit that you're going to have to ask

17     yourselves six questions, from our point of view:  Was Beara in Zvornik

18     at the various execution sites?  Was Popovic in Zvornik at the various

19     execution sites?  Under whose orders were they?  What units and what men

20     did they have at their disposal?  Were they empowered to give orders to

21     those men and/or units?  And did elements of the Zvornik Brigade receive

22     orders from them which they obeyed?

23             It's perhaps inescapable, in such a large piece of work, put

24     together under such pressure, that the Prosecution's brief should show

25     substantial and significant inconsistencies, but it does, and there is no

Page 34810

 1     area where it shows more marked inconsistencies than in the way it pleads

 2     its case against Vinko Pandurevic, as opposed to the way it pleads its

 3     case against the security officers in the dock.  To give one classic

 4     example, there are two paragraphs which are repeated virtually verbatim

 5     but for one critical word.

 6             In paragraph 1583, the Pandurevic section, you'll find the

 7     Prosecution alleging that in the famous three and a half thousand parcels

 8     intercept, Beara is calling Krstic because he needs his authority to take

 9     resources for the murder operation, whereas in paragraph 2270, in the

10     section of the brief that pleads the case against Beara, they say that

11     Beara is calling Krstic because he needs merely his assistance.  Those

12     two words are far from synonymous.

13             In relation to the section of the case pleaded against

14     Pandurevic, the only piece of evidence which the Prosecution rely on to

15     show that what was going on in Zvornik was an example of the normal

16     operation of the chain of command is that intercept.  They rely on

17     nothing else.  We submit that that interpretation of that intercept is

18     completely wrong.  It doesn't show the operation of a normal chain of

19     command at all.  Krstic and Beara are not connected through any normal

20     chain of command.  Neither is subordinate or superior to the other.

21     Beara's superior is Tolimir or Mladic, and Krstic's superior is Mladic.

22     The Prosecution agrees with that at paragraph 2260.  Krstic's subordinate

23     in the circumstances would be Pandurevic, of course, who is not mentioned

24     by either of them during the course of this conversation at such a

25     critical time.

Page 34811

 1             Moreover, Krstic's suggestion that Beara should take units of the

 2     Bratunac Brigade or from the MUP indicates no normal chain of command

 3     whatsoever.  In relation to that, it was Judge Prost who pointed out the

 4     quote used a couple of times in the Prosecution's final brief that Beara,

 5     Popovic, were doing what they wanted, taking whomever they wanted

 6     wherever they wanted, and there is a remarkable echo of that phrase from

 7     poor, weak Dragan Jokic in the very text of this intercept.  You may

 8     think, when Judge Prost put that question to Mr. McCloskey, he rather

 9     ducked the issue, but we will come to it more fully now as we analyse the

10     Prosecution's case against Beara and Popovic.

11             I should briefly respond to something Mr. Ostojic said the other

12     day about that intercept.  I mean him no harm, but my submission is when

13     his client uttered the words "I have three and a half parcels to

14     distribute," he was there accepting a measure of responsibility which he

15     was taking on.

16             Contrary to the Prosecution's submission in closing, and their

17     final brief, in our submission, makes it can plain that their case

18     against Colonel Beara was that he was in command of a joint task or

19     operation.  Without further elaboration, we invite your attention

20     specifically to the following paragraphs of the Prosecution's final

21     brief:  2186, 2223, 2300, 2301, Beara is criminally responsible for

22     planning and instigating the crimes; 2194, he coordinated and oversaw the

23     crimes; 2199, he had a pivotal role in the organisation, coordination and

24     oversight of the JCEs charged in the indictment; 2227, coordination and

25     control of the burial process; 2283, in charge of the operation; 2284,

Page 34812

 1     planned and ordered to have the prisoners transferred to Zvornik for

 2     detention and execution; 2301, ordered the commission of the crimes for

 3     which he is charged in the indictment.

 4             If you required any corroboration that those sort of terms, in

 5     contemporary Yugoslavian literature, were all command functions, you need

 6     look no further than P699, page 13 in the English, points 13, 14, and 15,

 7     the definition of command functions.

 8             This section of the brief also, we submit, shows the plainest

 9     operation of an abnormal chain of command.  2189, 2221, 2223, Beara

10     instructing Momir Nikolic on the 13th of July to go to Zvornik and pass

11     on an order to Drago Nikolic to prepare the transfer of the prisoners,

12     without reference to Pandurevic, Obrenovic, or Blagojevic; 2191, the

13     meeting on the morning of the 14th of July between Beara, Popovic and

14     Drago Nikolic at the Zvornik Brigade headquarters to plan the logistics

15     of the murder operation, again without reference or knowledge of

16     Pandurevic or Obrenovic; 2198, supervising the reburial work of the

17     security officers without the knowledge of Obrenovic; 2252, Beara and

18     Nikolic were both closely involved in the management of the murder

19     operation, and when there were problems with the operations, others

20     looked to them to solve them, again not to Pandurevic; 2253, Beara was

21     working after the Zvornik Brigade headquarters on the morning of the

22     15th, looking for personnel to execute the prisoners detained at Rocevic

23     and Pilica, without reference to Pandurevic; 2239, 2241, Beara asked

24     PW-104 for assistance with the provision of equipment and machinery, and

25     involved municipal utility companies.

Page 34813

 1             I have to slow down.

 2             And, lastly, 2301, Beara was relaying or passing on the illegal

 3     orders from superiors Mladic and Tolimir to subordinate security officers

 4     as well as to the units they engaged to carry out tasks associated with

 5     the removal and destruction of the Muslim population.

 6             Now, a similar exercise could be carried out in relation to

 7     Mr. Popovic, but I won't do so.  It's really rather too boring.  But on

 8     the 10th -- on the 3rd of September of this year, in closing argument,

 9     perhaps more lyrically, Mr. Vanderpuye said this in relation to him:

10             "The evidence concerning Bisina shows the elements of the

11     Drina Corps military police over which Mr. Popovic has control, as well

12     as the 10th Sabotage Detachment, were principally involved in carrying

13     out the executions in Bisina.  I will note that these same elements were

14     involved in the crimes that were perpetrated at the Branjevo Military

15     Farm on the 16th of July.  The only thing that Mr. Popovic was doing in

16     Bisina on the 23rd of July, 1995, as the most senior officer present

17     there, was coordinating, organising, and carrying out orders that he

18     would have received from his commands to execute these men.  There is

19     really no other explanation for his presence there, no other explanation.

20     The evidence in this case shows that his knowledge, intent, and conduct

21     were the same concerning the prisoners that were held in the schools in

22     the Zvornik area, the Orahovac school, where he was present on the 14th

23     of July, the Rocevic school, where he was present on the 15th of July,

24     the Kula school, where he was present on the 16th of July.  The nature

25     and extent of his involvement in the Bisina executions virtually

Page 34814

 1     parallels the circumstances of his presence and participation in the

 2     crimes that were committed in Zvornik."

 3             Now, this isn't Dragan Jokic talking, this is counsel for the

 4     Prosecution, but he might just as well have said on the 14th, 15th and

 5     16th of July, Beara and Popovic were running around taking whomever they

 6     wanted wherever they wanted.

 7             In relation to Drago Nikolic, the Trial Chamber will wish to ask

 8     itself whether he received advance notice of the arrival of the prisoners

 9     in Zvornik, a matter about which I think it is specifically alleged my

10     client was lying when he said that is what he was told by

11     Dragan Obrenovic.  In order to determine that, we submit, close regard

12     needs to be had to the following pieces of evidence:  Firstly, the

13     vehicle work logs relating to the car in which he would have travelled on

14     the 13th and 14th of July, paying multiple visits to the detention sites;

15     secondly, that those schools, and each of them, was ready to receive

16     prisoners before they arrive; and, thirdly, the presence of Zvornik

17     Brigade military policemen who were under his control prior to the

18     arrival of the prisoners at Orahovac and Rocevic.  Of course he had

19     advance knowledge that the prisoners were coming.

20             The next question you'll wish to ask yourself is:  Who did he

21     tell?  In answering that, regard will doubtless be had to the fact that

22     even according to his own theory of command responsibility, he had to

23     tell Obrenovic, and at the time he would have found out, he did find out,

24     at that time he was stuck at the forward command post as a duty officer

25     and needed Obrenovic's permission to leave his post.  Of course he told

Page 34815

 1     Obrenovic, if only for that reason.

 2             Mr. Vanderpuye also told us the other day that the security

 3     organs control the military police.  With that, we agree, and we have

 4     found in this case a body of agreement for that proposition, in spite of

 5     the submission of counsel for Drago Nikolic, Pandurevic is not the only

 6     person who disagrees with Peter Vuga's opinion on command and control of

 7     the military police.  PW-168 disagrees with it as well, as did

 8     Miodrag Dragutinovic, and they should know, they were the ones who had to

 9     operate the system.  Peter Vuga did not.

10             We reiterate moreover, our point, our submission, that minute

11     analysis of the Rules is a pointless exercise.  Mass murder of prisoners

12     isn't in the rules.  It isn't defined as counter-intelligence work, it

13     isn't defined as any sort of work, and you would be better employed

14     looking at who was doing it and who was ordering them to do it.

15             A point is made furthermore at paragraph 1591 of the

16     Prosecution's brief, supported only by the evidence of PW-168, that any

17     orders given by a senior officer present should be reported to the

18     commander of the unit at the first available opportunity.  Three brief

19     points which will become the style of these last few minutes, I fear:

20     PW-168 is the only witness who expresses this opinion.  Notably, Butler

21     didn't, nor did anybody else who helped command within the VRS.

22     Secondly, PW-168's evidence on this point contradicts Article 17 of the

23     Provisional Service Regulations.  And, lastly, in any event, we are

24     dealing with illegal orders in this case.  The standard military practice

25     or theory is of limited value.

Page 34816

 1             Before I pass on, two short points arising from some remarks of

 2     Mr. McCloskey the other day.

 3             The suggestion that Beara has or had less authority than Krstic

 4     in Zvornik is ridiculous.  Beara's special importance to Mladic is

 5     highlighted by the Prosecution in paragraph 2183.  By contrast, Krstic

 6     had only become a commander on the 13th of July.

 7             Secondly, as to the Prosecution's glib submission that the

 8     difference between the criminal responsibility of commanders and security

 9     officers is "immense," that is just historically and jurisprudentially

10     inaccurate.  In the Blagojevic case, the Trial Chamber which heard all

11     the evidence sentenced Momir Nikolic, who pleaded guilty and cooperated

12     with the Prosecution, to a much longer term of imprisonment than to his

13     own commander, Blagojevic, who contested his guilt through trial.

14             The use of Zvornik Brigade resources during the period of the

15     executions.  Pandurevic gave evidence about which he wasn't challenged

16     that units such as engineering and logistics were effectively

17     self-ordering and that he rarely if ever got involved in how the brigade

18     resources were employed.  There is also a body of evidence that shows

19     such organs ran through functional chains of command within the brigade

20     and above, and that's dealt with at paragraphs 238 to 242 of our brief.

21     Whilst, of course, it can't be denied that people who were members of the

22     Zvornik Brigade Engineering Company did drive machines, that is not

23     something ordinarily that Pandurevic would have needed to authorise or

24     would have needed to know about, on the evidence in this case.

25     Significantly, all logistical and engineering equipment was put to use

Page 34817

 1     first whilst Obrenovic was in command.  That is confirmed by the

 2     Prosecution, where it says elements of the Zvornik Brigade continued to

 3     take part in the murder operation and after Pandurevic's return;

 4     paragraph 1272.  There is no evidence that Pandurevic actually knew that

 5     any of this machinery was being used or that any of these drivers were

 6     employed in this way, other than what he was told by Obrenovic.  There is

 7     no evidence that Pandurevic spoke to Jokic and was informed by him of any

 8     of this at this time.  And there is no evidence, in the ordinary course

 9     of events, that the brigade commander would know such things.  So the

10     repetitive assertion made by the Prosecution about Pandurevic's knowledge

11     and authority is empty.  No suggestion of express authority or knowledge

12     was ever put to him.

13             Baljkovica.  The Prosecution have not condescended at all to

14     detail about the numbers of casualties, either during this trial or

15     during their investigations.  They have left that to us, the Defence.

16     They have left us to show you that the losses were far from spectacular

17     and, in particular, as known to Pandurevic at the time of the opening of

18     the corridor, were scarcely significant.  The important or operative

19     number of casualties, you may think, is that which he knew about at the

20     time he chose to open the corridor.  Nearly all of the hard evidence

21     about the events of Baljkovica on the 15th and 16th of July were put

22     before the Trial Chamber by the Defence.  Although they had it, the

23     Prosecution did not intend for you to hear the taped radio communications

24     between Vinko Pandurevic and Semso Muminovic.  It wasn't on their 65 ter

25     list.  We had to point out to them that it existed; transcribe it,

Page 34818

 1     translate it, and play it for you.  It was not us who placed before you

 2     the accurate lists -- it was us, not them, who placed before you the

 3     accurate lists of deceased, wounded, and missing, and it was us, through

 4     our client, not the OTP, through its military analyst, who graphically

 5     illustrated to you the disposition of all the VRS forces in the region at

 6     Pandurevic's disposal, as well as giving you an insight into the

 7     condition of the column by the time of the opening of the corridor.

 8             We thought you needed to know these things to judge Pandurevic's

 9     motives.  The Prosecution didn't want you to know them, and they still,

10     in their brief and oral arguments, urge you to ignore them.  The reason

11     is perfectly simple.  It damages beyond repair the Prosecution's claims

12     that Pandurevic had genocidal intent, was a member of the JCE to commit

13     mass murder.  What is particularly disturbing about the way in which the

14     Prosecution has conducted its case in relation to Baljkovica is the

15     startling failure to put to Pandurevic in cross-examination many of the

16     assertions it now relies upon in its final brief.

17             At the time he took the decision to open the corridor, Pandurevic

18     could only have believed he lost ten men.  That is what he wrote in P334,

19     the irregular combat report of the 16th of July.  The hearsay and

20     inaccurate estimates of other people listed in paragraph 1597 of the

21     Prosecution brief are irrelevant.  Pandurevic was not cross-examined

22     about his beliefs as to the precise number of dead, missing, or wounded.

23             Secondly, Popovic's opinion on what was militarily justifiable is

24     worthless.  Apart from anything else, the evidence shows that he never

25     went to Baljkovica on that day.  And in our submission, that particular

Page 34819

 1     assertion lies ill in the mouth of the Prosecution, who so enjoyed joking

 2     with Obrenovic about the unlikelihood of Popovic ever putting himself in

 3     the way of a bullet or danger in his interview in 2001.  This is the

 4     point that the Prosecution can't get 'round, nor do they even attempt to

 5     do so:  Pandurevic's offer to let the whole column go, soldiers and

 6     civilians, was first made on the 15th of July.  You heard it.  The only

 7     thing that stopped everybody being let go before he had even written the

 8     report of the 15th of July was a quibble over whether they could take

 9     their arms with them.  It's on tape.  It's 7D656.  Richard Butler didn't

10     even want to listen to that tape.  The Prosecution didn't want you to

11     know about it because, quite simply, it's the end of their theories about

12     Pandurevic being compelled to let the Prosecution go.

13             Sorry, it's been three years.

14             You have been to Baljkovica.  You will remember it is down in a

15     dip, surrounded by hills which represent the forward defence lines of the

16     Zvornik Brigade.  The Prosecution's desperate military theory in

17     paragraph 1605 of its brief completely ignores the fact that the point

18     which Pandurevic chose for the Muslims to cross the confrontation line

19     was a really vulnerable one for the Muslim column.  It also completely

20     ignores the evidence of both Pandurevic and PW-168 that he could easily

21     have withdrawn his troops a short distance and covered the area with

22     artillery fire, obliterating the whole column.

23             The quote from Pandurevic's irregular combat report of the 16th

24     of July:  "I consider Krivaja 95 as not complete as long as a single

25     enemy soldier or civilian remains behind the front-lines," is, of course,

Page 34820

 1     ambiguous.  The Prosecution, of course, want you to conclude that it is

 2     indicative of a pre-existing intention to commit forcible transfer, but

 3     bearing in mind, we all agree, that the break-out of the 28th Division

 4     towards Nezuk, creating in the process a serious security situation

 5     behind Serb lines, was not foreseen by anybody before the commencement of

 6     Krivaja 95, it is at least equally possible to construe this sentence as

 7     meaning that the security situation had to be tidied up before the

 8     operation could be considered to be over.  We do, of course, also remind

 9     you of the extraordinarily similar conduct of Pandurevic in June 1993, at

10     Ustipraca and the practical manifestations of his relationship with

11     Semso Muminovic, both of which we submit are highly relevant in

12     determining his true motives for allowing the column to pass.

13             These oral arguments won't make it to September.  I don't mean

14     September 2009; I mean September 1995.  I have had to, to deal with all

15     counts on this indictment, address -- through the evidence and the

16     submission, I mete all forms of criminal liability, and mete 117 pages

17     specifically devoted to my client in the Prosecution's brief.  There are,

18     of course, things I've had to leave to one side.  I can only hope that

19     if, after all this time, there's something you need my help on, you'll

20     ask me now, because now is the chance.

21             I am not going to say anything more than I've said in my own

22     final brief and which Mr. Josse so eloquently laid out the other day

23     about this being a case in which there's already a pre-existing

24     jurisprudence on sentence, and that the "give them all life" approach is

25     really not helpful to you who might be looking for guidance as to where

Page 34821

 1     people fit within the scheme of things, according to the Prosecution, but

 2     I will conclude with what I really started with.

 3             We invite you, in addition to the events that directly relate to

 4     Vinko Pandurevic in July of 1995, to look a bit wider.  We invite you to

 5     look at Visegrad in April of 1992, to the contact with Semso Muminovic

 6     and the cease-fires throughout the whole war, permitting people to grow

 7     their crops.  We do invite you to look at Kamenica, unashamedly, in

 8     January of 1993 and to look at Ustipraca in June of 1993, and to look at

 9     the passing of the column, and to look at Silikovic [phoen], the Muslim

10     communications officer; wounds treated, fed and released; the eight boys

11     on the 18th of July at the 4th Battalion command post, released from work

12     and sent back to Semso Muminovic; the 150 prisoners in the prison at

13     Standard whom Vinko Pandurevic secured exchange for at Batkovic.  That's

14     probably ineloquently expressed, but you know what I mean.

15             I'm not going to romanticise it by invoking the image of

16     Schindler, as did Mr. McCloskey, but there was something that

17     Vinko Pandurevic said, which I will commend to you, and he said this:

18             "Those who are in my hands survived."

19             And that's true.  Those who were in his hands survived.

20             JUDGE AGIUS:  Thank you, Mr. Haynes.

21                           [Trial Chamber confers]

22             JUDGE AGIUS:  We have some questions for you, Mr. Haynes.

23             Judge Prost.

24             JUDGE PROST:  Thank you.

25             Mr. Haynes --

Page 34822

 1             MR. HAYNES:  You're speaking a bit softly.  I better put my

 2     headphones on.

 3             JUDGE PROST:  I've never been accused of that, Mr. Haynes.

 4             First, on the question of command and control, there are various

 5     references throughout your brief on this particular issue, but there's

 6     one particular question or one particular point I'm not clear on, and

 7     it's a statement you make at paragraph 455 in the brief, page 103, and

 8     it's, I believe, the only time or at least the only time I could find

 9     when you make the statement that as commander of TG-1, Mr. Pandurevic was

10     not the commander of the Zvornik Brigade.  And what I'd like to know

11     is -- is your position on that.  Specifically, is it your position that

12     at any point from the 4th to the 15th of July, Vinko Pandurevic was not,

13     at law or in fact, the commander of the Zvornik Brigade?

14             MR. HAYNES:  I'm looking at the form of that question.

15             JUDGE PROST:  I'm not asking about in command, or responsibility,

16     or effective control at this point.  I'm asking, squarely:  Was he at any

17     point not the commander of the Zvornik Brigade?  The way it's framed in

18     that particular paragraph, it references to his other responsibilities at

19     the time.

20             MR. HAYNES:  I'm sorry.  You're -- in titular sense, you're

21     saying does he ever cease to --

22             JUDGE PROST:  To be the commander of the Zvornik Brigade during

23     that period.

24             MR. HAYNES:  In a titular sense, no.  To give a ridiculous

25     example, were he to have gone to a cocktail party, people would have

Page 34823

 1     introduced him as the commander of the Zvornik Brigade, yeah.

 2             JUDGE PROST:  Thank you.

 3             Now moving then to the question of effective control, and here

 4     I'm speaking about effective control as it's been defined in the

 5     jurisprudence for the purpose of determining the superior/subordinate

 6     relationship, in the abstract, to begin with, is it your position -- or

 7     what is your position as to whether more than one person can have

 8     effective control with respect to the same unit or brigade at a

 9     particular point in time?

10             MR. HAYNES:  The simple answer is to that is:  Yes, they can.  I

11     can't ignore the jurisprudence on that.

12             I've foreshadowed this, I think, briefly in my submission today.

13     Effective control is an evidential question, rather than a legal one, and

14     we do invite you to look very carefully at the effective control of

15     people in the detention/execution areas.  But the answer to your question

16     is, no, I'm not submitting for a minute that people, as it were, switched

17     from one to the other permanently.

18             JUDGE PROST:  And then taking the very specific situation, then,

19     Mr. Haynes, with reference to a commander and a deputy commander, is it

20     your position that both a commander and a deputy commander can have

21     effective control over the same unit at the same time?  And, again, I

22     appreciate effective control is always a factual, evidentiary

23     determination.  Is there anything barring both the deputy commander and

24     the commander having effective control?

25             MR. HAYNES:  Theoretically, there is nothing to prevent that.  In

Page 34824

 1     practice, I find it hard to imagine an example where it would happen.

 2             JUDGE PROST:  And we're talking about effective control, not the

 3     exercise of effective control, but actual effective control, the material

 4     ability that's spoken about --

 5             MR. HAYNES:  I understand that.

 6             JUDGE PROST:  -- the in the jurisprudence.

 7             MR. HAYNES:  Yes.

 8             JUDGE PROST:  Is there any difficulty, then, with both a

 9     commander and a deputy commander having effective control in that sense?

10             MR. HAYNES:  No.

11             JUDGE PROST:  Thank you.

12             And the one final point, and I'm going to take you to the

13     Rule that you've cited with reference to the Prosecution in this case,

14     and that is Rule 90(H)(2).

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

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21   (redacted)

22   (redacted)

23                           [Private session]

24   (redacted)

25   (redacted)

Page 34825

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12   (redacted)

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25                           [Open session]

Page 34826

 1             JUDGE AGIUS:  All right.  I don't think we have any further

 2     questions for you at this stage, Mr. Haynes.

 3             Now, at the beginning of the sitting, we were informed that you

 4     would like to address the Chamber, Mr. Bourgon.  Very briefly, please.

 5             MR. BOURGON:  Indeed, Mr. President.

 6             We've been informed on Friday that the Prosecution would like to

 7     take the floor for about 15 minutes for rebuttal.  On behalf of

 8     Drago Nikolic, there are three questions I would like to address after

 9     that, and these questions are two that were put to me by the

10     Trial Chamber, which I would like to come back to, and the third question

11     arises from a question which was put to the Prosecution earlier on, which

12     is not specifically addressed either in our brief or in our oral

13     arguments I would like to come back to, and that has to do with the

14     nexus.  So I would like no more than 15 minutes to address these three

15     questions.

16             And I take this opportunity, Mr. President, to -- I'm not sure if

17     my colleague intends to answer this point, but I raised during my oral

18     arguments, and that was at transcript page 34530, line 20, to 34531,

19     lines 10, the issue of Milici hospital which no longer appears in the

20     Prosecution's pleadings, so I'd like to know, if my colleague does not

21     answer this question, I would like the question to be put to him so that

22     I know where my client, Drago Nikolic, stands regarding Milici hospital.

23             Thank you, Mr. President.

24             JUDGE AGIUS:  Thank you.  And you're suggesting that you go, if

25     we grant you authorisation, after Mr. McCloskey or before?

Page 34827

 1             MR. BOURGON:  After, Mr. President.

 2             JUDGE AGIUS:  Yes.  Let's hear what Mr. McCloskey has to say.

 3             MR. McCLOSKEY:  Given, as you've been reminded, as we all know,

 4     it's the Prosecution's burden, the Prosecution should go last in

 5     responding to this -- any new evidence.

 6                           [Trial Chamber confers]

 7             JUDGE AGIUS:  We have roughly 15 minutes left, Mr. Bourgon.  The

 8     decision is to grant you the request that you have asked, but it's also

 9     our decision that you go first, and then we hear what the Prosecution has

10     to say, and, if necessary, consider whether it's the case of asking

11     you -- of allowing you to say anything further.  So you will use the next

12     15 minutes for this purpose.

13             Thank you.

14             MR. BOURGON:  Thank you, Mr. President.

15             I will move immediately to the first question, which was put to

16     me in private session, so I think we should go into private session,

17     Mr. President.

18             JUDGE AGIUS:  Sure.  Let's go into private session, please.

19                           [Private session]

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 34828











11 Pages 34828-34829 redacted. Private session.















Page 34830

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13                           [Open session]

14             JUDGE AGIUS:  We are back in open session.

15             MR. BOURGON:  The second question posed to me, Mr. President, had

16     to do with conspiracy, and that was at transcript page 34548.  The

17     question related to our temporal limitation argument, and on that day,

18     Mr. President, I said the following:  I said that our theory of

19     conspiracy to commit genocide is a continuing crime, and I said that this

20     theory had been rejected by the ICTR.  However, what I should have said

21     is that we submit that conspiracy to commit genocide is not a continuing

22     crime on the basis of the ICTR case law, holding that incitement to

23     commit genocide is not a continuing crime.  The Appeals Chamber, in

24     Nahimana, held at paragraph 723 that the crime of direct and public

25     incitement to commit genocide was completed as soon as the discourse in

Page 34831

 1     question is uttered or published, even though the effects of the

 2     incitement may extend in time.

 3             It is, therefore, our submission that for the same reason,

 4     conspiracy to commit genocide is not a continuing crime.

 5             The Zigiranyirazo Trial Chamber - sorry for the

 6     pronunciation - considered at paragraph 389 of that judgement that the

 7     crime of conspiracy to commit genocide is complete at the moment of

 8     agreement, regardless of whether the common objective is ultimately

 9     achieved.

10             Similarly, the Musema Trial Chamber held at paragraph 194 that

11     the crime of conspiracy to commit genocide is punishable, even if it

12     fails to produce a result.

13             The Prosecution alleges in this case that the agreement to commit

14     genocide would have been concluded on 11 or 12 July in Bratunac.  That is

15     paragraph 34 of the indictment, and that the mass killings commence on 13

16     July.  That is paragraph 30 of the indictment.  This means the conspiracy

17     to commit genocide was completed on 11 and 12 July and that the genocide

18     would have commenced on 13 July.  It is therefore the Defence's position

19     that on the basis of the ICTR case law, the conspiracy to commit genocide

20     would have been completed on 11-12 July and that the situation thereafter

21     is regulated by the law relative or relating to genocide.

22             Consequently, anyone allegedly involved in the crimes committed

23     after the conclusion of the agreement to commit genocide on 11 and 12

24     July could possibly incur liability for the crime of genocide, provided,

25     of course, that all relevant conditions have been met, but not for the

Page 34832

 1     crime of conspiracy to commit genocide.

 2             Finally, it is not excluded that the example given by Judge Prost

 3     of Judges Stole and Kwon joining a conspiracy, concluded by Judge Prost

 4     and Judge Agius, could result in liability for conspiracy for Judges

 5     Stole and Kwon if the criminal activity has not commenced prior to Judges

 6     Stole and Kwon joining the conspiracy.  However, if the criminal activity

 7     has commenced, we submit that in this particular example, Judge Stole and

 8     Kwon cannot join the conspiracy, but rather their conduct would be

 9     regulated by the law relating to the criminal activity that would have

10     been committed in such an example.

11             I move quickly, Mr. President, to the last question, which is the

12     one that was asked to the Prosecution in two places at transcript 34261

13     and transcript 34288, relating to the nexus which is required between the

14     military column and the attack on Srebrenica within the concept of crimes

15     against humanity and the "chapeau" requirements.  Our position in this

16     regard is the following:

17             First, we acknowledge the decision of the Appeals Chamber that

18     crimes against humanity generally can be committed against combatants

19     "hors de combat," or, in other words, combatants "hors de combat" can be

20     victims of crimes against humanity, but that's only the beginning and

21     part of the argument.  The underlying crime must be committed, of course;

22     in this case, forcible transfer.  In the absence of any specific

23     allegations in this regard, if we talk about forcible transfer,

24     lex specialis which applies is IHL, International Humanitarian Law, and

25     that would be Article 49 of Geneva Convention 4 and not Common Article 3,

Page 34833

 1     as mentioned by my colleague from the Prosecution.  This fits in the

 2     economy of Article 5 of the Statute, which requires that an attack be

 3     directed at any civilian population.

 4             Hence, even if the Trial Chamber was to find that forcible

 5     transfer can be committed against prisoners of war, for the purpose of

 6     crimes against humanity two additional requirements must be filled:

 7     First, the commission of an act which, by its nature or consequences, is

 8     objectively part of the attack, and this must be coupled with, of course,

 9     knowledge on the part of the accused that there is an attack on the

10     civilian population and that his acts, or parts there of, if the accused

11     does not have both the knowledge of the attack directed against the

12     civilian population and the knowledge that his acts are part of this

13     attack, then he cannot be found guilty of a crime against humanity.

14             In Mrksic, the Appeals Chamber said that the fact that the

15     perpetrators of the crime acted in the understanding that the victims of

16     the crimes were selected both on their perceived involvement in the

17     Croatian armed forces and, as such, were treated differently from the

18     civilian population, precludes that they intended that their acts form

19     part of the attack against the civilian population of Vukovar, and this

20     rendered their acts so removed from the attack that no nexus can be

21     established; paragraph 42.

22             We believe --

23             THE INTERPRETER:  Kindly slow down.  Thank you very much.

24             MR. BOURGON:  I apologise.  I'm just trying to fit within the 15

25     minutes, and I'm almost done.  I apologise.

Page 34834

 1             We believe that the situation in this case concerning the men

 2     from the column, on one example, and also the men separated at Potocari,

 3     which is another example, but that in both cases these men were also

 4     treated differently from the local population.  In our submission, they

 5     were legitimately transported as prisoners of war to detention

 6     facilities.  And the evidence, of course, shows that the attacks directed

 7     at the column was legitimate because the attackers acted in the

 8     understanding that they were engaging members of the ABiH, or combatants,

 9     or civilians who directly participated in the hostilities, which is the

10     part that was already covered in our brief, so I'm not going to expand on

11     that.  But the thing that the attack could have been attack lawfully, it

12     is incorrect for the Prosecution to talk about a grey area today.

13             The column was a legitimate attack, and the attackers, when they

14     attacked the column, they were not attacking or doing acts which form

15     part of the attack against the civilian population of Srebrenica, which

16     the Prosecution acknowledge in responding to the Trial Chamber's

17     question, began much earlier and dealt with something completely

18     different from the column retreating and being engaged.

19             The lex specialis again which applies in such circumstances is

20     the law of armed conflict or IHL, and the fact that the column could have

21     been attacked lawfully precludes the qualification of these acts as

22     crimes against humanity.

23             I could -- I had more, but I'll stop here, Mr. President.

24     I think I made the point that I wanted to make.

25             The last thing I can add is:  There are -- the understanding of

Page 34835

 1     those who attacked the column is one thing.  The understanding of those

 2     who separate the men in Potocari is a second thing.  But what is

 3     important for our client is the fact that Drago Nikolic, when he is in

 4     the Zvornik area, the information that he has is about prisoners of war

 5     and nothing about that this would be part of the attack on the civilian

 6     population of Srebrenica.

 7             Thank you, Mr. President.

 8             JUDGE AGIUS:  Thank you, Mr. Bourgon.

 9             Mr. McCloskey, what's your forecast for tomorrow, now that you

10     have just heard Mr. Haynes and Mr. Bourgon?

11             MR. McCLOSKEY:  I hope not to take more than 15 minutes for two

12     different responses, to Pandurevic and to Borovcanin.  I will review

13     everything again, try to get it down to the essence, and I would hope no

14     more than 30 minutes.  I don't think I have more than 30 minutes left in

15     me.

16             JUDGE AGIUS:  Okay, thank you.

17             And that means, Mr. Krgovic, Mr. Josse, and Ms. Nikolic,

18     Mr. Bourgon, please, your clients will be expected to make their

19     statements tomorrow.  Okay.  You may agree amongst yourselves who goes --

20     who goes first.

21             Yes, Mr. Josse.

22             MR. JOSSE:  Yes.  There are also a small number of corrections

23     from Friday's transcript which I'd like to make tomorrow, if I may,

24     please.  It will take no time at all.

25             JUDGE AGIUS:  Of course.  That applies to everyone.  Thank you.

Page 34836

 1             We'll stand adjourned to tomorrow morning at -- tomorrow is in

 2     the afternoon at quarter past 2.00.  Thank you.

 3                           --- Whereupon the hearing adjourned at 1.46 p.m.,

 4                           to be reconvened on Tuesday, the 15th day of

 5                           September, 2009, at 2.15 p.m.