Tribunal Criminal Tribunal for the Former Yugoslavia

Page 34837

 1                           Tuesday, 15 September 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.19 p.m.

 5             JUDGE AGIUS:  So good afternoon to you.

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

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

 8     everyone in and around the courtroom.

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

10     Vujadin Popovic et al.  Thank you.

11             JUDGE AGIUS:  Thank you.

12             For the record, all the accused are here.  Representation is as

13     yesterday.  That's -- I only notice the absence of Ms. Tapuskovic.

14     Otherwise, everyone else is -- wait a minute.  Thank you.

15             Before we start, Mr. McCloskey and, for that matter, also the

16     other Defence teams, although to a lesser degree, the Miletic Defence

17     team have filed a public motion, dated -- it's filed on the 14th of

18     September, but for some reason it's dated 2nd June, for admission of

19     relevant information -- you filed two motions yesterday, one we don't

20     need to mention; we'll deal with it in due course.  And the other one is

21     for admission of some documents.

22             Yes, Ms. Fauveau.

23             MS. FAUVEAU: [Interpretation] Mr. President, this public motion

24     is a translation of a motion that was filed on the 2nd of June.  It's not

25     a new motion.  It is the translation of a former one.  Thank you.

Page 34838

 1             JUDGE AGIUS:  That explains it.  Okay, thank you.

 2             We have concluded yesterday with the Pandurevic Defence team

 3     closing arguments.  Our understanding was that today we would proceed

 4     with further submissions from you, Mr. McCloskey.  Then we will have

 5     statements from two of the accused.

 6             Mr. Gosnell, I saw your microphone switched on.  Yes.

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

 8             Just before we commence with the Prosecution's rebuttal argument,

 9     a very brief submission to ensure that we're all on the same page as to

10     the contours of what should be contained in a rebuttal argument.  And in

11     that regard, I commend to you a quotation from Judge Liu in the Naletilic

12     case from page 16820, and Judge Liu in that case said:

13             "Pursuant to Rule 86 of the Rules of Procedure and Evidence,

14     tomorrow morning we will have the rebuttal argument.  I would like to

15     remind both parties that in this respect, this Tribunal has adopted very

16     strict criteria for this procedure.  According to the jurisprudence of

17     this Tribunal, the rebuttal argument must be related to the significant

18     issues arising directly out of the Defence final brief and closing

19     argument which could not have reasonably been anticipated.  The

20     Prosecution could not repeat what has already been said in its final

21     brief and closing argument with the sole purpose to reinforce its case."

22             So, Your Honours, we're simply submitting to you that rebuttal

23     should be restricted in its purposes, and that you should bear in mind,

24     in determining how broad their scope for rebuttal is, how much time we

25     have to prepare any rejoinder that we might wish to submit to you.

Page 34839

 1             So we're not making any specific submissions beyond that.  We're

 2     quite sure that the Prosecutor will bear this in mind and govern himself

 3     according to that standard.

 4             JUDGE AGIUS:  Okay, thank you.  I still consider it almost a

 5     storm in a tea cup, considering that after one whole week of oral

 6     submissions in the form of closing arguments, the Prosecution has

 7     indicated that it only needs about 15 minutes.  But in any case, of

 8     course, that is taken into account, Mr. Gosnell, and I now give the floor

 9     to Mr. McCloskey for his rebuttal.

10             MR. McCLOSKEY:  Good afternoon, Mr. President, Your Honours,

11     everyone.

12             I would -- my first comments will be of a legal -- of a very

13     short legal nature.  We have heard from some of the Defences, I think it

14     was Miletic and we've heard a bit from Pandurevic, suggesting that

15     material documents, things such as perhaps Directive 4 or the six

16     strategic objectives, or some of the material from Operation Proboj

17     generated by the Zvornik Brigade, could not be used by you in your

18     deliberations, except for, as Mr. Haynes said, credibility.  Well, I

19     would direct the parties, and, of course, the Court, I'm sure, is

20     familiar with this since it's fundamental to your deliberations, the

21     Stakic appeal, which if you look at paragraphs 105 to 136, clearly allows

22     the Trial Chamber to look at evidence, and that evidence is probative,

23     that may be before or outside the time-frame of the indictment, for

24     things such as context; paragraph 119:

25             "... 'the authority of the appellant during the relevant

Page 34840

 1     time-period' and his mens rea (paragraph 120); 'the development of the

 2     common purpose' and the 'role played by the appellant,' (paragraph 123);

 3     'the mens rea of the crime of persecutions,' 'the intent to discriminate

 4     against non-Serbs,' 'the character of the accused,' and 'the appellant's

 5     "real intentions and feelings" about Muslims during the period of the

 6     indictment' (paragraph 126); and again, 'the Trial Chamber did not abuse

 7     its discretion  ...,'" in reviewing these matters.

 8             Also, as you'll recall, Mr. Haynes spent quite a bit of time

 9     criticising the Prosecution for not putting its case to the accused.  I

10     believe we've touched on this a bit before, but it's important to take a

11     good look at the Krajisnik appeal judgement of 17 March 2009, referring

12     to the Karera appeal judgement of February 2009.

13             In paragraph 369 of the Krajisnik appeal judgement, the ICTR

14     appeals -- it quotes the ICTR Appeals Chamber in the Karera case,

15     referring to Rule 90(G)(ii), and says this:

16             "When an accused testifies in his own defence, he is well aware

17     of the context of the Prosecution's questions and the Prosecution's case,

18     insofar he has received sufficient notice of the charges and the material

19     facts supporting them."

20             It went on to state that:

21             "The ICTR Appeals Chamber, therefore, found that Rule 90(G)(ii)

22     of the Rules was not intended to apply to an accused testifying as a

23     witness in his own case.  The Appeals Chamber agrees with this reasoning

24     for the purposes of Rule 90(H)(ii) of the Rules."

25             And it went on to say:

Page 34841

 1             "In the present case, the Appeals Chamber is satisfied that, when

 2     taking the stand to testify in his own defence, Krajisnik was well aware

 3     of the context of the Prosecution's questions and of the Prosecution's

 4     case against him.  In particular, the indictment, the Prosecution

 5     pre-trial brief, and the witness lists issued in accordance with

 6     Rule 65 ter, as well as his presence during the trial proceedings as a

 7     whole, informed Krajisnik, the last person testifying for the Defence, of

 8     the case against him.  In these circumstances, the Appeals Chamber

 9     concluded that the Prosecution was not required to put the nature of its

10     case to Krajisnik when cross-examining him."

11             It goes on in paragraph 371:

12             "Amicus curiae also argues that, with regard to matters about

13     which Krajisnik testified, and the Prosecution did not cross-examine him,

14     the Trial Chamber was bound to accept Krajisnik's account."

15             Well, the Appeals Chamber - I won't read it to you - but goes on

16     and says the Trial Chamber is not bound to do that just because the

17     Prosecution doesn't hit him with a particular part of their case or a

18     particular document; that it's the Trial Chamber's discretion to weigh

19     all the evidence, and I'm sure you'll do that.  And if I didn't ask the

20     general about a document related to fuel, I'm sure you'll balance that,

21     if that's an important determination for you.  No concern about that.

22     But that is the correct law of the Tribunal.

23             Now, counsel for Borovcanin.  I will mainly limit my remarks to

24     the area of commission by omission, but counsel for Borovcanin criticised

25     the interview with Mr. Borovcanin, basically said he wasn't given a

Page 34842

 1     chance to explain things.  Well, I think you know that interview, and we

 2     know how thorough the Borovcanin Defence can be, and had there been any

 3     untoward comments or problems in that interview, we would have heard them

 4     loud and clear on the audio.  So it was a fair interview, it was a just

 5     interview.  Mr. Borovcanin and I had two different interviews, good

 6     discussions, tough discussions, clear discussions.  He had no problems.

 7     He told jokes during the interview.

 8             You know this Prosecution.  You know this Prosecutor perhaps

 9     better than he knows himself, after three years.  You don't see any of

10     that kind of nonsense being played here.

11             Okay.  Now, Mr. Gosnell suggested that this issue of

12     Mr. Borovcanin's defence, whether he went to Zvornik or towards Zvornik,

13     was just nitpicking on the part of the Prosecutor; that when we clearly

14     tell you what -- and it is in his statement that he said he went to

15     Zvornik, that that doesn't really matter because what really matters is

16     that he was able to tell us about his troops along the road.  Well, that

17     doesn't work because, as is clear in this case from the testimony of

18     Mr. Ruez, the Petrovic video of his troops and himself along the road has

19     been in the custody of the Prosecution since 1995.  Mr. Borovcanin would

20     have known that and would have had to speak about his troops and himself

21     being on the road.  What he had to do is come up with a story to explain

22     it.  And the Borovcanin Defence is suggesting to you that Borovcanin was

23     just telling us he was going towards Zvornik, towards Zvornik, and that

24     he'd been ordered to stop along the road.  Well, he told me very clearly

25     in his interview, at least three times, he was going to Zvornik.

Page 34843

 1             Now, the Defence is correct in that there were a couple of

 2     translation errors, and as you know, in an interview like this, they're

 3     not really translated.  The transcript of the English is transcribed, and

 4     the transcript of the B/C/S is transcribed, and sometimes the interpreter

 5     will make a mistake.  "To" and "towards" are obviously very

 6     closely-related words, and sometimes they flip back and forward in the

 7     B/C/S, and it should have been "towards" sometimes when it was said "to."

 8     But the vast majority of the times, they got it right and it was "to."

 9     But just to absolutely clear this issue up, I want to go over with you

10     the three key points to show us that he was telling me he was going to

11     Zvornik.

12             In the February interview, P02852, page 73, lines 5 through 10, I

13     ask him:

14             "So what did you do with the troops that you had?  Where did you

15     go?"

16             "We started towards Zvornik."

17             "And what were your particular orders?  Where were you supposed

18     to go?  Zvornik is a big municipality."

19             Mr. Borovcanin says:

20             "I was supposed to go to the command of the Zvornik Brigade to

21     take over my task of duty."

22             "And who told you to do that?"

23             "General Mladic."

24             Very clear, he's going to the command of the Zvornik Brigade, not

25     just towards Zvornik.

Page 34844

 1             Also at 2852, a few pages later, 78, line 23 to 26, I say:

 2             "Okay.  So when your troops went up towards Zvornik, it was their

 3     job to secure that route?"

 4             Borovcanin:

 5             "First task was to go to Zvornik, but that order to secure the

 6     communications changed the way we were supposed to be engaged."

 7             So, again, the first task was to go to Zvornik, and then he comes

 8     up with this wild defence that he got hung out in limbo because he

 9     couldn't go on the road.

10             But now the third time, to make it absolutely clear, this is now

11     in the March interview, and you can tell, by reading this, that

12     Mr. Borovcanin is a very intelligent man and he has gone into this well

13     prepared, and he's continuing the same theme.  So I say:

14             "So you've received orders to go to a very dangerous area, where

15     the Muslim column is going, but you don't receive any detailed intel

16     reports, except for what Mladic told you?"

17             Borovcanin:

18             "My order was to go to Zvornik and report to the commander of the

19     Zvornik Brigade and be at his disposal for the defence of Zvornik,

20     because the members of the Zvornik Brigade moved towards Zepa and the

21     town of Zvornik was not protected."

22             Then he goes on to describe how the road got cut and he couldn't

23     make it.  So this was definitely on the 12th that he was talking about.

24             And that is not nitpicking; it's crucial.  It's crucial to his

25     defence, as he gave it to me in that interview, because that's the only

Page 34845

 1     way he gets out of being in command of Dusko Jevic's troops, the ones

 2     that are doing the separating, and that's the only way he gets out of

 3     command of being under General Krstic's command, that -- the troops that

 4     were doing the killing and the operation to murder people.  And only with

 5     this trial and this latest developments has this been reconstructed and

 6     changed.  And I hear no complaint from anyone, so we must view that as

 7     the new version of events.  Very important to understand that.

 8             Now, Mr. Gosnell also argued strenuously that Mr. Borovcanin did

 9     not control and did not have custody of these prisoners at key points,

10     and I want to just briefly go over you, first of all, what precisely they

11     have acknowledged in their brief and then highlight some of the

12     importance of the crucial evidence on this commission by omission, which

13     is, as you know, does not, in the end, final analysis, require custody.

14     But you know that law, and we'll go through the facts.  Custody is

15     important.

16             So at paragraph 166 of the final brief, they say:

17             "The 2nd Sekovici Detachment and the 1st PJP Company had been

18     deployed along the road since the previous afternoon, tasked with

19     securing the road and blocking and fighting the ABiH column that was

20     moving north."

21             We agree.

22             "The Prosecution concedes that the column was a legitimate

23     military target.  This task necessarily encompassed securing the road and

24     regulating traffic thereon."

25             We agree with that, and that, of course, also allowed the women

Page 34846

 1     and children to move freely and be freely kicked out.

 2             Then it goes on to say, an important part:

 3             "A further necessary incident of that combat function was taking

 4     ABiH fighters into detention at the point of surrender and securing them

 5     until they could be handed over to the unit responsible for prisoners of

 6     war."

 7             It goes on to describe that that would be the security branch of

 8     the Bratunac Brigade.  So there's a clear acknowledgment of what the

 9     evidence was, overwhelming, on video, showing, all part of our case, so I

10     won't go through our case.

11             He also acknowledges at paragraph 365 that he took prisoners and

12     guarded them at Sandici, and it says:

13             "The evidence concerning who had custody of Muslim prisoners at

14     various times on the afternoon of the 13th of July has already been

15     analysed in detail."

16             An important part:

17             "Borovcanin's units did take prisoners into custody, where they

18     surrendered along the road, and did participate in guarding them at the

19     Sandici Meadow for at least some period."

20             That's an important acknowledge that is supported by all our

21     evidence, and it makes your job easier.

22             He also acknowledged that one of his key commanders, Cuturic,

23     would have been working with Momir Nikolic, and that is in paragraph 189

24     of their final brief, and states:

25             "The task of Mr. Borovcanin's units, in addition to blocking and

Page 34847

 1     fighting the column, was to ensure security along the

 2     Bratunac-Konjevic Polje road.  Cuturic's role in closing the road flowed

 3     directly from this responsibility."

 4             And here's the important part:

 5             "Of course, he would have coordinated with Momir Nikolic or

 6     others about the need to close traffic for the purpose of marching a

 7     column of detainees down the road."

 8             So he is acknowledging that he would have been coordinating with

 9     Momir Nikolic or others about this key point.  And we know Momir Nikolic

10     was going up and down the road that day with an APC, calling out people

11     to come join the UN.

12             And in paragraph 9 of Momir Nikolic's statement of facts, he says

13     this, for the 13th of July:

14             "While I was in Potocari, I met Dusko Jevic and told him to pass

15     an order to his units which were on the Bratunac-Konjevic Polje road,

16     that all the captured Muslims be transported to Bratunac."

17             So, yes, Cuturic would be dealing with Nikolic.  Nikolic is

18     dealing with Cuturic, through Jevic, all under the command of Borovcanin.

19     They're working together in this system, in this operation, which I've

20     already thoroughly described to you.

21             So I just want to clear up this issue about how the executions

22     began, whether it was organised part under Boro's orders or --

23     Borovcanin's orders, excuse me, or related to some sort of escape

24     attempt, which it was certainly not.

25             Mr. Gosnell said that you cannot hear detonations or sounds - I

Page 34848

 1     don't remember his exact words on that point - over the trial video,

 2     that -- where we said you could hear them.  Well, I'm not going to play

 3     them for you, but you can go to -- in the trial video, go to two hours

 4     and fifty-one minutes and forty-eight seconds, and go to two hours,

 5     fifty-two minutes and three seconds, and you will hear two loud, distinct

 6     noises while Petrovic is filming in the area of Sandici.  At the same

 7     time, you'll be hearing loud automatic gun-fire coming from the area.

 8     And the only evidence we have of any kind of gun-fire or fighting in the

 9     afternoon on 13 July along that road is the Kravica warehouse.  Now, we

10     can't possibly discount to you that gun-fire was not heard, somebody shot

11     into the woods or something like that, but when you listen to the -- when

12     you go over the evidence, it's -- the fact that this gun-fire and what

13     people hear all happens after the road was closed is very telling on what

14     was going on.

15             Even in the statements to Mr. Borovcanin -- to me, he said, on

16     page 285 -- excuse me, in Prosecution's 2853, page 63:

17             "So when someone turned on his Motorola," and remember he's got a

18     Motorola that we see in his car; it's always going to be on, as a

19     commander, and he's also got, as you saw, a hand-held mic that would be

20     attached to the car, and that's always going to be on, so I'll start

21     over:

22             "So when someone turned on his Motorola, I was able to hear

23     shooting and detonations.  I tried to reach some of my commanders that

24     were there because I wanted to know what was going on.  I believed that

25     the police got attacked somewhere."

Page 34849

 1             "Stupar," and later he says:

 2             "Stupar, the commander of the Sekovici, I heard him, so I tried

 3     to get an answer from him.  I asked him what was going on, what's the

 4     problem, but he just -- I couldn't get a concrete answer from him.  He

 5     just kept saying, 'Oh, don't ask, don't ask, something terrible is going

 6     on.'"

 7             Earlier in the day, Mr. Borovcanin told me that he'd met with his

 8     commanders, Stupar, Cuturic, and Pantic, along that road, and here is him

 9     acknowledging that he is speaking to Stupar right at the time that

10     these -- something terrible is going on, and he's previously -- just

11     previously to this -- it's impossible to tell how previously, but he has

12     heard detonations and shooting.

13             And after the traffic was stopped for the prisoners, Celic, a MUP

14     member who was along that road, hears hand-grenades.  He doesn't give

15     great timing on that, but it's clearly before dark, and it's a time he's

16     hearing gun-fire.  So here we have more gun-fire, hand-grenades, after

17     the people are sent there.

18             And I note that our brief suggested Pepic heard hand-grenades as

19     well.  That is wrong.  Pepic did not say he heard hand-grenades.  He

20     heard constant fire -- one-sided firing after the traffic was stopped.

21             So at this point we know that Commander Cuturic is at the

22     warehouse with the prisoners, as is Krsto, and "burnt hands" happens

23     during this, and shooting erupts.  And since Stupar -- don't forget

24     Stupar.  He is on the radio probably immediately with Borovcanin, so he

25     is very likely there as well, or very close by, and gets there almost

Page 34850

 1     immediately.  Borovcanin is last seen on the video at Sandici.  We

 2     believe he would have gone from Sandici directly to Kravica.  So they're

 3     all very close by.

 4             So why is Krsto there?  Now, you heard from the opening statement

 5     and recent statements of Defence counsel.  Let me -- the evidence on that

 6     is amazingly sparse and amazingly unreasonable.  It should not be

 7     something that you need to consider, but I go over with you what it is.

 8     It's nothing like what was in the opening statement.  Now, clearly, they

 9     don't have a burden, but when they get up and tell you that Cuturic took

10     Krsto to go talk to people at the warehouse about a relative that was

11     killed, they should back it up with something.

12             So we put on Milenko Pepic, a MUP officer, and he was

13     cross-examined.  I believe it was by Mr. Stojanovic.  His question was,

14     at T-13600:

15             "Did Rado Cuturic tell you how it is that Dragicevic, Krsto,

16     ended up in Kravica?"

17             "A.  No.

18             "Q.  At any point in time, did you obtain information according

19     to which Krsto Dragicevic went there to check whether any of his Muslim

20     neighbours were there, neighbours he could ask about the fate of his

21     brother or cousin who was killed in 1993?

22             "A.  I can't say.  I don't remember."

23             So leading questions are fine on cross-examination, but as you

24     know, the problem with leading questions is they're good for credibility,

25     they're good for determining credibility, but they're not very good for

Page 34851

 1     getting information from a witness.  You get information from a lawyer,

 2     but not from the witness.

 3             "My question was whether after these events, you had heard of

 4     such a reason for which Krsto went down there.  So I'm not asking you

 5     about that evening.  I'm asking you about whether you heard about this

 6     later."

 7             Second try.

 8             "A.  I can't provide you with a precise answer, but there was

 9     some relative of his that was killed, and it's probably for that reason."

10             That's it.  A second leading question, and it's probably for that

11     reason.  No talk of Cuturic or anything else.

12             Mr. Thayer goes over a similar topic with him and gets a similar

13     sort of non-clear response.  And Mr. Thayer's questions on page 13607 to

14     08:

15             "So my question, sir, is when did you first hear this information

16     or rumour that this Krle had had a relative that was killed at Kravica?"

17             At that point, Mr. Stojanovic objects and says:

18             "Oh, it was Skelani."

19             Mr. Thayer continued, and the witness answered:

20             "I couldn't say when exactly, but perhaps Krle, himself, said

21     something about a relative of his in Skelani who had been killed."

22             Perhaps Krle himself.

23             "As to when this occurred, as to the year, I don't know, but it

24     was during the war.

25             "Q.  Do you remember when you heard this information, sir?

Page 34852

 1             "A.  I can't remember."

 2             That's it, that's all they have, and when you balance whether or

 3     not Krsto and Cuturic were there in their capacity to guard people, this

 4     is what you're balancing it up against, and this is just not reasonable.

 5             In addition, the MUP troops had taken these people in custody.

 6     They'd surrendered to the MUP troops.  They'd taken them into custody.

 7     Borovcanin stopped the traffic to help facilitate their movement.

 8     Borovcanin's troops held that road, as we know from Celic.  He had his

 9     people on the other side of the warehouse, from Pepic, who had stopped

10     it.  This is his zone, he's in control of this.  These people stay in his

11     custody and control.  The fact that they're a few metres away, along the

12     road, while they're being escorted down the road perhaps by army guys

13     that they're working with, does not change the custody situation here at

14     all.  This is not a situation where they're being taken to a small local

15     prison and Krsto and Cuturic are going to visit somebody that's been in

16     the custody of the county jail, and the state police are off patrolling

17     the highways.  No.  This is the area held by Mr. Borovcanin, controlled

18     by him, and I've gone over that in detail.  I won't -- try not to repeat

19     myself, where necessary, or not necessary.

20             If I could go into private session for just a second.

21             JUDGE AGIUS:  Sure.  Let's go into private session for a short

22     while, please.

23                           [Private session]

24   (redacted)

25   (redacted)

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19                           [Open session]

20             MR. McCLOSKEY:  Also --

21             JUDGE AGIUS:  We are in open session.

22             MR. McCLOSKEY:  Thank you.

23             Also, a Defence witness in the Blagojevic testimony, Ljubisa

24     Simic, which is -- came in, I think, under 92 bis, Exhibit P00092,

25     Exhibit 4D00606, at 7629 to 7630, Simic says, in recounting the story,

Page 34854

 1     and I quote:

 2             "A policeman who was guarding those people in the -- in the --

 3     okay," and it goes on:  "That policeman was killed and then shooting

 4     ensued."

 5             And to get a final picture of who is there, we go to the words of

 6     Mr. Borovcanin himself at P02853 page, 63 to 65, and this is as he's

 7     coming up -- he's come back after being summoned back by Stupar.  He

 8     doesn't say where he's summoned to, which is a little odd, but he says,

 9     as he comes up to the Kravica:

10             "I saw -- and I saw police officers that were previously placed

11     along the road.  I saw them gathered there.  I saw Lukic's unit.  They

12     were all together as well, and I saw a large number of bodies of people

13     that were killed in the yard."

14             And that's when Stupar reports to him what happened.  I ask him:

15             "How many bodies?"

16             And he says:

17             "I wouldn't dare make an estimate, so large a number, several

18     dozens."

19             And I went on to ask him:

20             "Did you look in the warehouse?"

21             And he said:

22             "So -- well, I can tell you that I looked towards the warehouse,

23     and Pirocanac was near me, and he was taking photographs of -- he was

24     filming the place, and on that footage you can also see the warehouse,

25     but you cannot see what's in the warehouse because it's dark."

Page 34855

 1             No mention of closed doors.  We were able to agree with the

 2     Defence that that statement was not correct of Mr. Borovcanin.

 3             But in any event, we have now several dozens dead Muslims at the

 4     Kravica warehouse shortly after 5.00 p.m., probably 5.15, 5.20.  Krsto is

 5     dead.  Cuturic has had his hands burned badly.  Stupar is there,

 6     Borovcanin is there.  Other members of Borovcanin's unit are there that

 7     were placed along the road, and many, many are yet to die, and there's a

 8     huge pile of people.  And as you know, when you shoot large numbers of

 9     people like this, they don't all die at once; they die slowly many times,

10     that they bleed to death.  So there are many, many people that are left

11     to save.  And, really, there's one man there at this time that can do

12     that, and that's Ljubisa Borovcanin.

13             And on page 28 -- 2853, 66 through 67, and then -- excuse me,

14     page 72, I ask the question:

15             "Did you make any effort to see if there were any wounded people

16     among the mass of Muslims that had been shot at the warehouse?"

17             Answer, and I quote:

18             "First, my officer was wounded and he needed medical assistance.

19     And whether there were any wounded among the Muslims, I did not want to

20     interfere in that matter."

21             The argument is clear, the facts are clear.  You know what that

22     means.  He did nothing.  He said he goes to the health centre.  Pepic

23     says when Cuturic goes to the health centre, Borovcanin is not with him.

24     Someone needs to stay there and sort out the security of these prisoners.

25     There's a security problem.  There's been a massive crime.  Those several

Page 34856

 1     dozens bodies piled there cannot have anything but a massively, massively

 2     suspicious nature, at the very least, in looking at this in the best

 3     possible view to the accused.  You don't need to kill several dozens of

 4     people when one guy grabs a gun, and you certainly, under International

 5     Law, and what the Defence called, I think, the duty to render assistance

 6     or protect, known well in Serbia, he had to do something, both to look

 7     after the wounded and to protect the others that were there.  He did

 8     nothing except ensure that the traffic could be opened when Cuturic came

 9     back after the health centre and that women and children could get by

10     this warehouse and not see anything, which meant that he had to help

11     organise the rest of the killings, the covering up of the bodies and the

12     blood with hay.  This is what he did, and everyone in that warehouse died

13     that afternoon and early evening, and even into the night.  As people

14     twitched and got up, as we know from the witnesses, people were shot into

15     the night.

16             His presence there with his staff, Stupar and other officers,

17     would have also, under the other form of liability, encouraged those that

18     are there to continue killing.  And Pepic hears firings continuing when

19     Cuturic goes by him with burned hands on his way to the health centre.

20             He showed a similar disregard when it had to do with the Muslims

21     in Potocari; 2853, page 95.  Allistair Graham asked him:

22             "Had all the prisoners been moved out of town by this stage or

23     was this still a problem?

24             "A.  I don't know that.  I tried not to know."

25             And I ask:  "Why?"

Page 34857

 1             "Because that was not the thing that was supposed to interest

 2     me."

 3             And I ask:  "What do you mean by that?"

 4             "I had enough headaches without that," is his response.

 5             I'm not sure any legal term fits that mindset, but the term

 6     "deliberate indifference" comes to mind.

 7             And then he was asked about the Muslims that were being held in

 8     Bratunac and whether he was concerned for their safety, and he said:

 9             "I did not think about it.  I did not know what might happen to

10     them."

11             And about the separations, he said:

12             "I didn't pay attention to that.  I don't know anything."

13             So when you look carefully at the law of Mrksic, the Geneva

14     Conventions, which clearly state the duty, I can't imagine any greater

15     example of an officer that knows full well he has to do something, he has

16     the ability to do something, he does nothing, and hundreds and hundreds

17     die a horrible death.

18             Now I'd like to move on to Pandurevic.  I didn't hear too much

19     new in the Pandurevic arguments, and much of this has been discussed in

20     the brief, but there are some matters that I'd like to discuss.  And I

21     hope we'll be done within 25 minutes.  I can't imagine -- I hope I'll be

22     done by then.

23             Mr. Haynes said that the Prosecution did not comment on the

24     Defence that Pandurevic had no effective control of the Zvornik Brigade.

25     Given that that was an issue hotly contested by all the security teams

Page 34858

 1     and put on by Mr. Butler and throughout our case, I'm not sure we were in

 2     the same courtroom.  But just to clarify it, very briefly,

 3     Vinko Pandurevic took over command, actual command, about noon on the

 4     15th of July.  He was always, of course, in command of the Zvornik

 5     Brigade, and the key factor we know about that we get from Mirko Trivic,

 6     that when you're out of your zone with other matters, you're still

 7     commander, and if the deputy commander back at home -- he is obligated to

 8     be consistent with your commands and with your orders, and if anything

 9     new and different of a nature arises, you've got to get a hold of your

10     commander or his commander.  And in that regard, you're still the

11     commander.

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20                           [Trial Chamber and registrar confer]

21             JUDGE AGIUS:  Go ahead.

22             MR. McCLOSKEY:  He tacitly -- he put his brigades, he authorised

23     the murder operation to come to Zvornik, to the Zvornik Brigade.  And

24     after that, each soldier that acted in furtherance of that operation was

25     acting under his command.  And that is exactly what happened when

Page 34859

 1     Vinko Pandurevic got back on noon on the 15th.  He became fully informed

 2     of the murder operation by his Chief of Staff, by his other officers at

 3     the brigade command.  And after that, each officer, each soldier that

 4     acted in that brigade, could only be under the command of one commander,

 5     and that was Vinko Pandurevic.  Under the Rules, he's responsible for

 6     everything that goes on in subordinate units.  It's clearly written in

 7     the Rule.  He knows it, we know it.  He would have had to have been

 8     relieved for him not to be in command.  Butler said that very early.  He

 9     was never relieved of command.  They probably thought about it when he

10     opened up the column, after his men got killed, but they decided that it

11     was because his men got killed, he opened the column, and they weren't

12     going to relieve him.  They needed him too much.  He never got relieved.

13     He's the only commander.  Even if Krstic or Mladic were there, he would

14     be the commander of the brigade.

15             The orders come down through Mladic -- well, Karadzic, Mladic,

16     Krstic, down through to the brigade, to Pandurevic.  They're existing

17     when he gets there.  When he allows his troops to continue in that,

18     instead of putting an end to it, they are under his command.  He is

19     actively commanding them.  And that's when I go through the three

20     processes of intent that I talked to you about, everything that he did

21     voluntarily against his duty.  So to make that absolutely clear, that is

22     our case.

23             The 15th of July intercept makes that clear.  As I've said, I

24     won't go over the entire argument, but it's absolutely clear that as

25     Krstic ticks off the brigade commanders that Beara needs to go to in

Page 34860

 1     order to try to get more troops, it's clear that not even Beara -- and

 2     Beara says if he -- you know, If I had those other troops that had been

 3     promised me three days ago by Mladic, Beara, even with Mladic's order,

 4     putting it in front of Krstic's nose, Give me the troops that Mladic said

 5     I could get, Krstic listed off the brigades that he could go to to try to

 6     get them.  He did not mention Pandurevic.  Why not?  Krstic and

 7     Pandurevic had just met that morning at the -- before Pandurevic was sent

 8     back to Zvornik.

 9             There is no doubt at that point that Krstic would have fully

10     informed Pandurevic, perhaps not as fully as Pandurevic would have liked,

11     but would have given him the guts of what was going on up there in his

12     brigade, and I'm sure Pandurevic said, You better get some people to help

13     take part in this operation, both militarily and the other one, because

14     I'm not going up there, you know, and get my head handed to me.  So when

15     Beara calls an hour or two later, you don't see Krstic saying, Oh, yeah,

16     talk to Pandurevic to get more troops.  Pandurevic's guys are max'd out.

17     Look in our brief about what they're doing at that point.  I'll go over

18     it briefly, but they are completely max'd out.  So that little window

19     into reality is a very important one, and remember where Beara is when

20     he's having that conversation.

21             All right.  The other thing Mr. Haynes said that we never spoke

22     of is the zone of responsibility.  Well, the zone of responsibility must

23     be mentioned in countless numbers of Zvornik Brigade reports.  It's

24     mentioned in many places.  The -- it's uncontested that the corps has a

25     zone of responsibility that's defined by specific lines.  It's the same

Page 34861

 1     in the brigade.  We did not make a big issue of it - Butler mentions it

 2     briefly - because the crux of the issue is this:  They're suggesting that

 3     because he's not responsible for the areas that aren't on the front, he's

 4     not responsible for the schools.  How can that be?  Let me outline.

 5             We know that on the 13th of July, Drago Nikolic, and MPs under

 6     the command of Dragan Obrenovic, took over the Orahovac school, and the

 7     authority -- under the authority -- the only authority they have to do

 8     that is under the authority of the Zvornik Brigade and the command.  The

 9     same thing happened at the Petkovci school.  The commander and deputy

10     commander, Marko Milosevic, Ostoja Stanisic, were informed from the duty

11     office who was -- this thing was getting run out of the duty office, as

12     you know, that there would be prisoners there and Beara would be there.

13             So that school was literally across the street from the command

14     post, and the officers from that -- or the soldiers from that battalion

15     had to clean up bodies and trucks, at a very minimum, at a very minimum.

16             The Rocevic school, Sreco Acimovic, himself, had to go get the

17     keys with someone, and they actually got the school themselves, based on

18     communications from security, from Drago Nikolic.  That's the Zvornik

19     Brigade, Drago Nikolic acting under the authority of his commander at the

20     time.

21             And then we heard about the soldiers, the security officer of the

22     1st Battalion that also had to go get the Kula school and take it and put

23     all its soldiers there.

24             Zone of responsibility?  These guys have taken these schools.

25     They have to be responsible for them and the prisoners they put in them.

Page 34862

 1     That's a complete red herring.

 2             Now, Mr. Haynes went over his, I think, 12 or 13 points, and I'm

 3     sure you know that I could match him point for point, but I'm not going

 4     to do that because that's in the brief.  But there is another section

 5     where he answers -- he asks certain questions and provides some answers,

 6     and I think it goes to the issue of suggesting the alternatives on why

 7     Obrenovic didn't tell Pandurevic about the prisoners and the executions.

 8     And the answers that he gave are not reasonable to an extreme, and so

 9     I think they help highlight the extremity of their -- the extreme nature

10     of their point.

11             The first question he asks is that once -- they suggest that once

12     Drago Nikolic and Obrenovic know about this operation on the 13th and

13     14th, Vinko doesn't need to know.  Pandurevic absolutely needs to know

14     this when he gets there.  One of the main things he needs to know this

15     about is you saw the terrible burden that each of his battalion

16     commanders were under.  Lazar Ristic spelled it out.  He was worried

17     about his soldiers finding out there was hundreds of Muslims in their

18     community, and if soldiers find out that their children and their

19     families are at risk from hundreds of Muslims kept in bizarre

20     circumstances, being shot, Rocevic, remember, a civilian got shot, a

21     whole group came down from Pilica complaining about the people there,

22     this is a terrible threat that the battalion commanders are having to

23     deal with, that the word gets out, that the soldiers start getting up and

24     leaving the lines, when -- can you imagine Vinko Pandurevic, at the

25     forward command post, and catches people leaving the lines, and it's

Page 34863

 1     reported to him, Ah, he's leaving the lines because he's heard there are

 2     hundreds of prisoners located at schools.  He's got to go back and save

 3     his family.  Vinko Pandurevic would have the head of anyone who didn't

 4     tell him that before he goes out to the IKM.  That threatens the entire

 5     brigade, it threatens the entire town of Zvornik.  He has to know that,

 6     that that is a major security threat.  He had to know because of all the

 7     resources.

 8             Could you imagine Vinko Pandurevic getting on to the

 9     1st Battalion and saying, I need -- I need 20 men to help fill a gap in

10     the line.  You can bet the deputy that's there, or the security, whoever

11     picks it up, and said, Well, I'd like to be able to send them to you, and

12     I will, but it's going to take me some time to get the 20 guys and find

13     somebody else to guard the people at the Kula school.  Pandurevic now has

14     to go look for -- elsewhere.  He would be livid if nobody had told him

15     about that and his lack of resources.  The same goes with the engineering

16     unit.  If he needs engineering equipment to go block a road, fill a

17     trench, build up the trenches, he has to know, before he goes out in

18     harm's way, what resources, what men, are going to be taken away from him

19     and what effect it's going to have on him.  He absolutely has to know.

20             The other point he says is -- Mr. Haynes says:

21             "Obrenovic had nothing to tell."

22             My god.  From the 13th and the 14th, and everything that had gone

23     on, as I said, the different threats at the different schools, the

24     prisoners that had been killed, the need to take care of people.  How

25     about the fact that 2.000 people had already been murdered?  Nothing like

Page 34864

 1     that had ever happened in this war.  Do you think that was a secret that

 2     was being held from the commander that needed to know the most?

 3     Absolutely not.  Had nothing to tell.  It's outrageous.

 4             He may not have had the opportunity -- Obrenovic may not have had

 5     the opportunity to tell this to Pandurevic.  Well, they were at the

 6     command together.  This isn't a position where they're in a trench,

 7     getting shelled, and they're trying to save themselves.  They're at the

 8     command post.  There are hallways, there are office to dip into.

 9     Opportunity galore.

10             Obrenovic may have thought it was not worth telling him.  Well,

11     for the reasons I've gone over, Obrenovic had to tell him.  Not worth

12     telling him?  Had this happened -- something like this happened in other

13     armies, in other wars, it's grounds to be shot.  And if Obrenovic had

14     sent Vinko Pandurevic out to the front-lines without telling him this

15     information, it would be a serious -- very serious security threat and it

16     would put Obrenovic in very, very deep trouble.

17             Obrenovic may have been afraid to tell him.  This is not going to

18     be good news to Vinko Pandurevic.  If he doesn't know clearly all the

19     details at that point, yes, he is going to be angry, but he's going to be

20     a hell of a lot angrier if you surprise him.  I can't imagine how angry

21     he would be if that gets surprised, after he's at the IKM or finds out

22     later.  He just happens to find out after everybody is dead and buried on

23     the 16th and 17th.  Outrageous.

24             Baljkovica, very briefly.  Remember, when you -- if you look at

25     this issue, to determine Vinko Pandurevic's intent.  I know we've all

Page 34865

 1     been here too long, and I know when Mr. Haynes says only ten dead, he

 2     doesn't really mean that.  But look at any commander that's lost troops

 3     in Afghanistan.  Look at General Dannatt.  They feel these deaths, these

 4     Serb men that are dying.  They feel every one of them.  And had that

 5     column been open the day before, when it was being pushed by Vasic and

 6     others, those ten men would probably be alive today.  So, yeah, those ten

 7     men that he is acknowledging knowing about, that's a lot of men, that's a

 8     lot of lives.  That's Serb lives that could have been saved if they had

 9     just let them through, not to mention the hundreds of Muslims that

10     charged that trench with no weapons and got butchered to get home.

11             And don't forget the Muslims had tanks along that front-line that

12     could reach Zvornik.  They also had very heavy artillery that could reach

13     Zvornik.  Zvornik had the same thing.  Early on, we saw -- I think it was

14     92 or 93, a Muslim shell hit the centre town and killed a little girl.

15     Well, Vinko Pandurevic has his hands tied by mutual-assured destruction.

16     He can't just lay back and start shelling the hell out of everybody,

17     because then the Muslims do the same thing.  They can get Celopek, they

18     can get down-town Zvornik.  They can turn each other to rubble.  They

19     couldn't do that.  So the Baljkovica story is outrageous and needs a

20     little reality.

21             One last point, a point that Mr. Haynes stressed,

22     Vinko Pandurevic stressed.  Pandurevic said:

23             "Whose ever life depended upon me, they survived."

24             Now, can we go to P0329, put it up on the screen:

25             "Whose ever life depended upon me, they survived."

Page 34866

 1             Well, when Vinko Pandurevic gets to the Zvornik Brigade at 12.00

 2     noon, everybody at the Rocevic school is still alive.  Everybody at the

 3     Pilica Cultural Centre is alive.  Everybody at the Kula school is alive.

 4     Well, I shouldn't say "everybody."  There's dead people at all these

 5     places that have died various awful ways, but most of them are still

 6     alive.  And look what he says, after he describes the combat situation:

 7             "An additional burden for us is the large number of prisoners

 8     distributed throughout schools in the brigade area."

 9             Now, that is uncontested.  He is acknowledging it is a burden on

10     the brigade, on his command, of the large number of prisoners distributed

11     throughout all the schools.  He knows he's got large numbers of prisoners

12     distributed throughout the schools.  They're all in his battalions.  His

13     battalion commanders are suffering from having to put up with this awful

14     murder operation.  He knows it.  There it is.

15             By the morning of 17 July, they're all dead.  By the evening of

16     17 -- 18 July, they're all buried.  They all depended on Vinko Pandurevic

17     for survival.  He chose not to allow them to survive.  It was his choice,

18     not Beara's, Drago Nikolic; Vinko Pandurevic.  And when he allowed his

19     troops from the brigade command, to the logistics, to the security, to

20     the battalion commands, to the soldiers, the drivers, to continue taking

21     part in this, he willfully joined a genocide, one that will not long soon

22     be forgotten.

23             Thank you.

24             JUDGE AGIUS:  It's half past 3.00 or so.

25             Ms. Nikolic, and Mr. Krgovic, or Mr. Josse, or Mr. Bourgon, have

Page 34867

 1     you decided amongst yourselves who's going first?

 2             Mr. Bourgon.

 3             MR. BOURGON:  Good afternoon, Mr. President.

 4             With respect to the address by the accused Drago Nikolic, we have

 5     discussed the matter and he's prepared to go first.  Whether that is

 6     right now or after --

 7             JUDGE AGIUS:  I was going to --

 8             MR. BOURGON:  He's willing to go first, and it won't be long,

 9     Mr. President.

10             Thank you.

11             JUDGE AGIUS:  How long do you anticipate?

12             MR. BOURGON:  Five minutes.

13             JUDGE AGIUS:  Five minutes.

14             Yes, Mr. Josse.

15             MR. JOSSE:  There's one matter I wish to attend to which relates

16     to the transcript corrections.  It will take about five minutes as well.

17             JUDGE AGIUS:  Please go ahead.

18             One moment.

19                           [Trial Chamber confers]

20             JUDGE AGIUS:  Mr. Josse, please go ahead.

21             MR. JOSSE:  These corrections, Your Honours, all relate to the

22     transcript of last Friday, the 11th of September.  They all relate to the

23     submissions of Mr. Krgovic which, of course, were made in B/C/S and were,

24     therefore, being translated into English.  We have simply tried to

25     highlight what we regard as the most important.

Page 34868

 1             At page 34708, line 21, the place stated in the transcript was

 2     "Visnjica," and it should be "Vitnica."  I'm going to spell the

 3     correct -- I'm going to spell it the correct way, V-i-t-n-i-c-a.

 4             On the following page at line 5, it states "17660."  That's

 5     incorrect.  It should be "1760."

 6             On the same page, towards the bottom, lines 22 to 23, no

 7     reference is given for the particular document, but Mr. Krgovic was

 8     referring to P28.

 9             On 34714, line 6, there's an incorrect transcript reference.  The

10     correct reference is T-12195.

11             At 34718, line 21, an exhibit is referred to.  The correct

12     reference is P4036.

13             And the following page, at line 15, Mr. Krgovic talks, I quote

14     "about another document."  He's referring there to 5D1418.

15             For completeness, Your Honours, I should add that there's one

16     rather more substantial passage which we are concerned about.  That we

17     have sent to the Registrar for re-translation.  But the bits I have read

18     to you, we have not sought re-translation.  They're all, very clearly,

19     small matters that can be dealt with this way.  The larger passage needs

20     re-looking at.

21             JUDGE AGIUS:  Okay, thank you.

22             Yes, Mr. Bourgon.

23             MR. BOURGON:  Thank you, Mr. President.  I also have some

24     corrections to make from yesterday, very quickly.

25             JUDGE AGIUS:  Go ahead.

Page 34869

 1             MR. BOURGON:  At page 34829, yesterday, line 7, I referred to the

 2     testimony of Sreten Milosevic when he said that the order for him to go

 3     to Orahovac was issued by Dragan Obrenovic.  I then gave a wrong

 4     reference.  The correct reference should have been transcript 33976,

 5     which is not what I mentioned yesterday.

 6             On page 34829, line 10, I also referred to the testimony of

 7     Nada Stojanovic.  I should have said at that time the statement of

 8     Nada Stojanovic, which was admitted pursuant to Rule 92 quater, and the

 9     number for that statement is 3D511.

10             Thank you, Mr. President.

11             JUDGE AGIUS:  Before we proceed any further, we have some

12     questions.

13             Judge Prost, please.

14             JUDGE PROST:  Mr. McCloskey, this just relates to the point that

15     was raised by Mr. Bourgon twice on the question of the position of the

16     Prosecution regarding the involvement -- the alleged involvement of

17     Mr. Nikolic with respect to the Milici hospital prisoners, and I wondered

18     if the Prosecution was in the position or you wanted to give a comment in

19     response to that question, as to whether you are no longer relying on

20     that allegation, withdrawing your allegation with respect to Mr. Nikolic,

21     or not.

22             MR. McCLOSKEY:  No, we are relying on -- on that allegation.  I

23     would -- would not -- I would not withdraw it.  I have not looked at the

24     trial brief about it.

25             Drago Nikolic would have been fully knowledgeable of prisoner

Page 34870

 1     issues and would have coordinated with Vujadin Popovic on the transport

 2     and removal of prisoners.  It's his job to know that.  He has to know it,

 3     he has to be involved, and it's part of the joint criminal enterprise,

 4     whether he knew about it or not.  It's foreseeable, it's part of it, and

 5     he, in his position, has to be held responsible, in our view.

 6             JUDGE PROST:  Thank you.

 7             JUDGE KWON:  One further question, Mr. McCloskey, related to the

 8     issue raised by Mr. Bourgon as well.

 9             As to the issue whether Mr. Nikolic is responsible for the

10     forcible transfer, you made it clear that the able-bodied men captured

11     from the column, as well as those who were separate from Potocari, were

12     also included in the objects of the forcible transfers.  So that I can

13     understand that, he's indicted for the forcible transfer, but my question

14     is whether Mr. Nikolic was indicted also for the forcible transfer of

15     women and children.

16             MR. McCLOSKEY:  The answer is, yes, Your Honour, and that would

17     be -- the forcible transfer operation is of the -- of the men and the

18     women of the population that got forcibly transferred is so intertwined

19     that it's -- it can't be separated out.  There can't be part 1 and

20     part 2.  It's -- the women and children are part of it, the men are

21     another part of it.  He, we don't believe, has to be tagged with actual

22     physical responsibility for the women and children.  Once we have him in

23     the men, the -- he should be responsible for the whole.  It's -- it's --

24     they're all victims.  If he is part of any of those victims, he should be

25     held, in our view, responsible for the whole.  And as I've said before,

Page 34871

 1     the -- the -- even the murder operation is so closely intertwined with

 2     the vehicles and the men and the materials that you -- you've got to know

 3     and be involved in all these things to make it happen correctly.  You

 4     can't just -- you can't use the vehicles to get the men up to Zvornik

 5     unless the women and children have been bussed out first.  There has to

 6     be coordination between these things, so they have to know about it.

 7     Just like 168 knew about the 3.000 people that were being captured, and

 8     they -- they would have known about the massive numbers of civilians and

 9     what was to become of them.

10             I think there's -- it's also intertwined, that you can't -- we

11     would not separate them like that.  Once he's got one victim, and a

12     little kid, for example, at Orahovac, that little kid was sent out, never

13     to come back.  That's a victim of forcible transfer, thank God, but --

14     and that's directly on the feet of Drago Nikolic, and that's just one of

15     I don't know how many like that.

16             JUDGE KWON:  Very well, thank you.

17             JUDGE AGIUS:  So I think we can break now for 25 minutes.

18             When we resume -- yes, Mr. Gosnell.

19             MR. GOSNELL:  Well, Your Honour, perhaps I should indicate now

20     that of course there will be a rejoinder.

21             JUDGE AGIUS:  All right.  We were going to just ask you, because

22     we heard no intervention from --

23             MR. GOSNELL:  I have to tell you -- I have to tell you,

24     Your Honour, what you heard was not a rebuttal argument.  You heard 35

25     minutes of a second closing argument --

Page 34872

 1             JUDGE AGIUS:  Just --  just --

 2             MR. GOSNELL:  So I -- I merely wish to put on record that we may

 3     require some additional time in order to prepare a response to what was

 4     said.

 5             JUDGE AGIUS:  Oh, no, come on.  We have 25 minutes' break, and

 6     then if you want to make a rejoinder, please stand up and do it.

 7             Break for 25 minutes.

 8                           --- Recess taken at 3.40 p.m.

 9                           --- On resuming at 4.10 p.m.

10             JUDGE AGIUS:  So, Mr. Gosnell, we gave you more than 25 minutes,

11     so you are ultra-prepared now.  Keep it to the barest minimum possible,

12     because what we wouldn't like to see is a ping-pong exercise.  We are

13     experienced enough to know what -- to distinguish between the wheat and

14     the chaff, and what's regular and what's not.

15             So go ahead.

16             MR. GOSNELL:  Thank you very much, Mr. President.

17             I appreciate your comment, and I will do my best to be of

18     assistance, although I may not be able to be as detailed as I would like

19     to be.  But I'd like to start, first of all, with the issue of

20     detonations.

21             Now, the argument that you've now heard from the Prosecution is

22     that detonations at approximately between 5.00 and 5.20 proves that there

23     was a massacre going on at that time.  I point out to you, first, that

24     this is not an argument that is systematically made in the brief.  It's

25     come up only now, at this late stage.  But, nevertheless, let me address

Page 34873

 1     it, and there are, I suggest to you, two issues:  One, are the

 2     detonations going on at that time during that first shooting incident?

 3     And, secondly, are any audible detonations actually coming from the

 4     Kravica warehouse?

 5             The Prosecution started by saying -- relies principally on

 6     Celic's testimony, and after describing that testimony, said Celic is not

 7     great on time.  And let's remember, Your Honours, that it's not disputed

 8     that there were grenades being thrown later in time, but that's not the

 9     issue.  The issue here is whether or not grenades are being used at that

10     time and whether or not that indicates that there's a massacre ongoing at

11     that moment.  And let's remember that not only is Celic not great on

12     time; the testimony is that he is 600 to a thousand metres away.

13             We do have two witnesses who were right there at the time,

14     however.  We have Djukanovic, and here's what Djukanovic says on this

15     subject, at page 11768, lines 13 to 19:

16             "Q. All right.  Approximately, best that you can remember, how

17     long did that shooting last?

18             "A. Well, maybe 10, 15 minutes, but not throughout, not all the

19     time.

20             "Q. Besides the shooting, what else did you hear?  Did you hear

21     any other loud noises?

22             "A. I heard noises, explosions, but that was already towards

23     dusk, but I didn't go anywhere near."

24             Now, to be frank with Your Honours, when you read this

25     gentleman's testimony in its entirety, you will see that there are many

Page 34874

 1     problems with time, and even problems with the day, but nonetheless, when

 2     you look at this sentence, I suggest to you that he's trying to convey

 3     that those grenades were actually being detonated later on that evening,

 4     and that is consistent with what we have told you.

 5             Witness 111, what does he say about this?  And I apologise for

 6     having to go through a lengthy quotation, but it is important, and he is

 7     a credible witness.  He's in the middle of an answer, and this is at the

 8     top of page 6995:

 9             "Then, after a certain amount of time, I don't know how long,

10     they just changed their behaviour," referring to the guards.  "Suddenly

11     they became angry.  I thought that something was going to change, but I

12     didn't know what was going to happen.  What their opinion was, I don't

13     know.  At one point, though, just -- they became angry.

14             "Q. Okay.  And after they had become angry for some reason, is

15     that when the shooting started?

16             "A. The shooting began after they became angry, and the shooting

17     went on for about half an hour, perhaps.

18             "Q. Can you describe the calibre of weapons you heard being

19     fired, what kind of weapons you heard?

20             "A. Automatic weapons, an 84.  I could see which soldiers had the

21     84s in their hands, automatic rifles, machine-guns."

22             Then down on the next page, 6996, the questioning follows up on

23     these answers:

24             "Q. So when this shooting started, could you hear automatic rifle

25     fire and this 84 rifle fire or 84 machine-gun fire?

Page 34875

 1             "A. Yes, of course; automatic rifles too.  Machine-gun and

 2     automatic rifle have the same sound, almost.  The 84 has a slightly

 3     different sound.  I even heard a tank firing, an anti-aircraft,

 4     23-millimetre weapon, a Praga, and you could hear loud detonations of

 5     grenades.  The detonations were so powerful --" "the detonations were so

 6     powerful that I was able to hear.

 7             "Q.  And you say this went on for how long?

 8             "A.  About half an hour, approximately.  I don't know exactly."

 9             Now, Your Honours, I suggest that you can read that passage in

10     two -- draw two reasonable inferences from that passage.  One reasonable

11     inference is that there was shooting in the warehouse at that time.  He's

12     talking about the first shooting incident in this answer.  And, secondly,

13     what he's testifying to -- what he's saying here, when you look at the

14     words carefully, is that he's hearing detonations and artillery fire

15     going on somewhere else.  That's the implication of this, because we know

16     that there's no tank sitting in the Kravica warehouse compound, we know

17     there's no artillery piece there.  He's describing fire going on

18     somewhere else, and that includes detonations of grenades.  And there's

19     other evidence that supports that.

20             156, whose testimony we generally would not say is reliable,

21     says -- and who is relied on heavily by the Prosecution, says that when

22     he enters the warehouse, as he is entering the warehouse he hears

23     constant gun-fire going on in the hills around him.  That's what he says.

24     The Prosecution said this morning, no, there was no combat going on

25     anywhere else except at the Kravica warehouse, that's the only place

Page 34876

 1     where shooting was going on, that's the only place where detonations

 2     could have been heard from.  That's not true, according to 156, their

 3     star witness.

 4             And I would also commend you to the trial video, and if you watch

 5     it over the minutes during which Petrovic is in and along the road, you

 6     can hear periodically gun-fire and detonations.  So the suggestion that

 7     if you hear a detonation, it must be coming from the Kravica warehouse,

 8     is completely fallacious, and that was the point that we were making in

 9     our closing remarks.

10             I'm grateful to my friend for having corrected the reference to

11     Pepic.  It's true, notwithstanding what is said in their closing brief,

12     there is no reference in Pepic's testimony to the sound of grenades at

13     the warehouse.

14             So there you have three witnesses, two of whom are right there on

15     the scene, much closer than Celic, much better in terms of time, and they

16     don't hear these grenades.

17             Second argument.  Why are the two guys there, if they're not

18     guarding these individuals, these prisoners?  And they say, well, the

19     Prosecution -- or the Defence, I'm sorry, the Defence only has Pepic,

20     that's all they have to rely on.  And I suppose I just misspoke, Your

21     Honours, because during the discourse I did start to feel as if I was the

22     Prosecutor and the Prosecution had become the Defence, because I did feel

23     that the burden of proof had been reversed.

24             And it's not just Pepic; it's Neskovic, who we rely on at

25     paragraph 191 of our brief, because the issue here isn't just do we have

Page 34877

 1     some specific evidence on the record explaining why these two gentlemen

 2     might have been off on a frolic of their own.  You can understand, Your

 3     Honours, why there might not be evidence that's that specific as to why

 4     these two guys went off on their own.  But look at the broader context of

 5     this case and the evidence that you've heard, and the broader context of

 6     this case, I suggest, is that there is an abundance evidence of soldiers

 7     occasionally wandering off and doing their own thing.  That is a

 8     reasonable possibility, and Neskovic simply articulates one witness's

 9     view of that happening and why it might happen, and I suggest the

10     Prosecution simply has not excluded that as a reasonable possibility

11     because, Your Honours, there's a broader context.  If there were no other

12     units in that area, maybe, maybe, you could draw that inference, but you

13     have our brief and you know that there were other units in the area.  You

14     know that there were two commanders from the Bratunac Brigade in that

15     warehouse compound at that time.

16             Third point, and this may not be of any great importance, but

17     nonetheless I feel that I have to mention it.  The Prosecution said

18     Stupar gets there almost immediately.  Where's the evidence of this,

19     Your Honours?  There's simply no evidence to support that assertion.  And

20     we say that it's actually much more reasonable that Stupar goes there and

21     that, upon arriving, as soon as he arrives, he then, once he sees the

22     injured comrade, that is when he gets on the Motorola and that's when he

23     calls up the road.  There's absolutely nothing that suggests otherwise in

24     the evidence.

25             Fourth, detonations over the Motorola.  The Prosecution is

Page 34878

 1     hypothesising, I suggest to you flagrantly speculating, that what

 2     Borovcanin hears over his -- sorry, let me rephrase that.  That what

 3     Borovcanin is saying he heard is that he heard detonations on his

 4     Motorola that came from Stupar's radio, who was at the warehouse while

 5     these detonations were going off.  That's the chain of reasoning that

 6     they're presenting to you.  I suggest that that chain of reasoning

 7     collapses on at least one obvious ground; namely, that there were other

 8     Motorolas floating around at that time in other places along that road,

 9     and that there were detonations of all kinds audible along that road, not

10     least artillery fire from two artillery pieces that are actually along

11     the road.  I think in that context it is beyond unreasonable to try to

12     make the inference that what he's hearing or saying he heard is

13     detonations at the Kravica warehouse.

14             Fifth, hearsay evidence.  Your Honours, we discuss this in our

15     brief.  This is one of the few cases where you can look at this hearsay

16     evidence and you know exactly why it's not reliable.  You can see the

17     telephone tag that's going on between these individuals.  You have the

18     testimony of Perica Vasovic, who explains his understanding about who was

19     there when he was at the warehouse and the inference that he wrongly

20     drew.  You can see it unfolding in the testimony, itself.  And for the

21     Prosecution to put weight on PW-168's testimony, for the reasons that we

22     express in our brief, I suggest is completely unreasonable.

23             Fifth -- or perhaps sixth, to Zvornik instead of towards Zvornik.

24     We never suggested in our closing remarks that he never -- that

25     Mr. Borovcanin never said "to Zvornik."  That wasn't the point.  The

Page 34879

 1     point was that there were other occasions -- on some occasions he does

 2     say "towards Zvornik."  The issue here, essentially, is whether

 3     Borovcanin was being truthful in asserting that Mladic, in the early

 4     afternoon of the 12th, told him, You're going to Zvornik.  Now, you

 5     remember the testimony of Richard Butler, indicating that they -- that

 6     the VRS did not know exactly where the column was at that time.  It is

 7     plausible, I assert, that Mladic would have said, You're going to

 8     Zvornik.  It is plausible that Mr. Borovcanin actually remembered that,

 9     notwithstanding the fact that he then deployed along the road, and that

10     he accurately, with scrupulous honesty, even though it's an inconvenient

11     fact, that, true, it doesn't seem completely sensible to say it, but,

12     nevertheless, out of scrupulous honesty he says, Yes, I was told to go to

13     Zvornik.  No, I didn't end up there.

14             Seventh -- and perhaps I should just go back to this "to" and

15     "towards Zvornik" point.  Look at how much reliance the Prosecution

16     places on that point in their brief.  And when you realise that that is

17     an unreasonable attack on Mr. Borovcanin's honesty during the interview,

18     I suggest that that should alter entirely your view as to how honest he

19     actually was during that interview.

20             Seventh, you were treated to a list of "concessions," I put in

21     quotation marks, that were made in our brief about when Borovcanin's men

22     did have custody along the road and custody, in part, at Sandici Meadow

23     at times.  We do make those concessions.  But notice how the Prosecution

24     just tries to paper over all of the important issues that are fundamental

25     to this case; namely:  How do the prisoners get from Sandici Meadow, down

Page 34880

 1     to the warehouse?  Who escorted them?  What is Momir Nikolic's role?  Who

 2     is guarding them at the warehouse?  What's the evidence on that?  All of

 3     this just gets papered over into an overly-dramatised submission at the

 4     end of the case, saying, Well, look, they're kind of generally up there,

 5     they're generally in that area.  They must generally have moved by

 6     osmosis down to the warehouse.  That's not reasonable, Your Honours.

 7     That is not proving your case beyond a reasonable doubt.

 8             Eighth, you were treated to some quotations from the interview of

 9     Mr. Borovcanin by the Prosecutor.  Now, some of us have had the pleasure

10     of conducting interviews, through interpreters, of witnesses,

11     interviewees, from another culture, who use another language.

12     Interpreters are of varying qualities.  There is suspicion, there is

13     defensiveness, there are misunderstandings.  Sometimes there is

14     impatience, sometimes there is pushing for an answer that you want and

15     being impatient with not getting the answer you want.  That happens

16     during interviews.  It's human nature.  And I suggest to Your Honours

17     that to try to pick on particular words that might have been used in the

18     transcript and say, Look at this word as it's been -- look at how

19     insensitive this person must be to have used this word, you have to take

20     into account all kinds of cultural factors, idiom, and the circumstance

21     of the interview itself, in order to make a real assessment as to whether

22     or not you can have an insight into the accused's attitude, mental state,

23     not only during the interview but back at the time.  And it's just all

24     too easy to look at somebody from a different culture, who might be not

25     giving answers as quickly as you want, and saying, Look at how horrible

Page 34881

 1     and evasive this person is being.

 2             And one last point, and this is critical.  The Prosecution just

 3     had an opportunity to rebut what we said in our closing arguments.  We

 4     say that there are critical issues that we raised in our closing

 5     arguments that put a fine point on what's in our brief, critical issues.

 6     They haven't addressed you on any of them.  They've side-stepped all of

 7     the questions that were asked during our closing arguments.  They've not

 8     told you the implications of those doors actually being closed.  They've

 9     provided you with no explanation about the non-disclosure.  Instead, they

10     chose to treat you to a new opening -- a new closing statement in which,

11     essentially, they went back to the time-worn strategy of changing the

12     subject.

13             Well, Your Honours, I implore you to stay on subject.  I implore

14     you to look at the case as pleaded.  I implore you to look at their

15     closing brief and their closing arguments and, finally, their rebuttal,

16     and analyse its consistency, its coherence, and its trustworthiness, and

17     I believe you'll find, at the end of the day, that you cannot, based on

18     any proper standard of reasonable doubt, find Mr. Borovcanin guilty of

19     any of the charges that have been laid against him.

20             Thank you.

21             JUDGE AGIUS:  Thank you.

22             Mr. Haynes, do I take it that you don't ask for a rejoinder, or

23     am I wrong?

24             MR. HAYNES:  I do.

25             JUDGE AGIUS:  Okay.  Go ahead, then.

Page 34882

 1             MR. HAYNES:  I join with Mr. Gosnell in echoing the sentiment

 2     that what was promised to be a brief 15 minutes and turned into something

 3     like an hour and a quarter did not conform to anything which I understand

 4     to be a Prosecution address in rebuttal.  But since certain issues were

 5     raised, I will avail myself of the permission that the Rules allow to

 6     rejoin them.

 7             Can I start with a submission that was made that affects,

 8     I think, both myself and Madame Fauveau in the way it was addressed;

 9     namely, the relevance of evidence from outside the indictment period.

10             We have never contended that evidence from outside the indictment

11     period is not admissible.  We didn't seek to exclude it.  Indeed, as you

12     will have seen from the way in which the arguments have developed, we are

13     accused and we will plead guilty to introducing it in some cases.  That's

14     what the Stakic appeal judgement confirms, that evidence from outside an

15     indictment period can be admissible, if relevant.  But what I sought to

16     address yesterday, in my closing arguments to you, was :  Relevant for

17     what?  And it seemed, from the way in which the Prosecution case was put

18     in its final brief, there was a measure of agreement between us.

19             We submit that episodes to which Vinko Pandurevic attested in

20     1993 may, in circumstances, be relevant to his credibility.  But beyond

21     that, we submit those episodes are of very limited evidential value, and

22     we submit that, really, in looking at the events of 1993, you have to go

23     through a two-stage process.  Firstly, and not insignificantly, you've

24     got to decide what facts you find in relation to those episodes, and only

25     then can you decide what is the proper interpretation to place upon the

Page 34883

 1     evidence that comes from outside the indictment period.  And in this

 2     case, given the contest over certainly one or two of the episodes, it's

 3     possible that you will interpret that evidence either in favour of the

 4     Prosecution or in favour of the accused, or perhaps even a mixture of the

 5     two.

 6             The interpretation of these events, as you know, is completely in

 7     issue, and we do point out that notwithstanding the vocal invitation to

 8     them I made yesterday and the opportunity they have had overnight to dig

 9     around, there is still not a word in what has been submitted to you

10     concerning Vinko Pandurevic's behaviour in June of 1993 at Ustipraca,

11     when he let several thousand Muslim soldiers and civilians, together with

12     their arms and vehicles, pass under the barrels of his guns.

13             Now, that moves me nicely on to the second, as it were, legal

14     submission, the Krajisnik point, as it were.  Please take the trouble to

15     read the decision in Krajisnik of the Appeals Chamber, insofar as it

16     relates to Rule 90(H)(2).  In particular, we invite your attention to

17     paragraphs 369 to 371.  The Appeals Chamber was struck by the fact, at

18     paragraph 371, despite the apparent failure of the Prosecution to comply

19     with Rule 90(H)(2), that the appellant, nor the amicus, was able to

20     identify any single finding of fact adverse to the appellant, made by the

21     Trial Chamber, relating to an issue which was not put to him in

22     cross-examination, and to that extent we wholly endorse the position.

23     And I submit that that is wholly in line with the submissions that I made

24     to you yesterday.

25             Where, for example, the theory about the fuel for the 27th of

Page 34884

 1     September, corroborating the existence of an active reburial operation on

 2     that day, has not been suggested to Pandurevic, you don't make a finding

 3     adverse to him, that that's exactly what I submitted to you.  That's

 4     exactly what the Appeals Chamber -- the ratio of their decision was in

 5     the Krajisnik appeal.  But we're not going to stand on procedure if the

 6     end result is a fair one, but we do make the point that none of the

 7     issues addressed to you in oral argument yesterday, where we complained

 8     about the Prosecution singularly failing to put its case to

 9     Vinko Pandurevic, were contained in the indictment, were contained in the

10     pre-trial brief, were adduced in evidence as part of the Prosecution, or

11     put to Pandurevic in cross-examination, and we say, in those

12     circumstances, not inconsistently with the Appeals Chamber decision in

13     Krajisnik, that you cannot draw inferences adverse to the accused in

14     those circumstances.

15             Point 3, Dragan Obrenovic.  I'm sure it was an omission, but

16     remind yourself of Dragan Obrenovic's guilty plea, his plea agreement,

17     and his ancillary statement of facts.  Look, if you wish, to the

18     sentencing judgement, in particular paragraph 85.  Dragan Obrenovic

19     pleaded guilty under Article 7(1) and Article 7(3).  He pleaded guilty as

20     a commander.

21             In our final brief, we specifically addressed a whole section to

22     the legal and evidential effect of his guilty plea and the way in which,

23     we submitted, it was one of the factors which would drive you inevitably

24     to the conclusion that you could not find Vinko Pandurevic was in

25     effective control or command of the Zvornik Brigade between the 4th and

Page 34885

 1     the 15th of July of 1995.  We note today those submissions still go

 2     unanswered.

 3             Fourthly, the zone of responsibility.  The zone of responsibility

 4     was not addressed in the Prosecution brief.  Not one word was set aside

 5     for the area about which we had made such an obvious contest.  I'm bound

 6     to say I was in two minds yesterday, whether I ought to remind the

 7     Prosecution, despite the specific section in our brief about it, that

 8     they hadn't dealt with it.  They had another opportunity, under the

 9     Rules, to deal with our brief in their closing oral arguments, but still

10     they didn't; that they deal with it here today, having had our brief,

11     having heard our oral arguments, in an alleged argument in rebuttal.

12     And, again, you have seen not one piece of current relevant legislation

13     suggesting that a brigade under the JNA or the VRS had a zone of

14     responsibility which mapped out an area within which it was responsible

15     for anything, whatever happened.  You've seen no regulation, you've seen

16     no decision of the army to support this theory.  We submit that it is

17     axiomatic that the state is responsible for territory and commanders are

18     responsible for men.

19             Lastly, we point this out:  It was referred to in our final

20     brief, and we're astonished that the submission appears to be made

21     contrary to it.  At T-2793, Richard Butler resiled from the suggestion

22     that such a zone of responsibility does exist.  There is no evidential

23     support for such a finding in this case.

24             Fifthly, Trivic.  Trivic was not in command of a battle group

25     under Krivaja 95.  The unit which came from the Romanija Brigade was

Page 34886

 1     commanded by Ljubo Eric.  We made this perfectly plain during the course

 2     of the evidence.  It's in our brief.  The positions of Pandurevic,

 3     Trivic, and, for argument's sake, Svetozar Andric, are completely

 4     different, yet still the Prosecution even now rely on an ancient report

 5     by Richard Butler from the year 2000, who considered neither the evidence

 6     of Vinko Pandurevic nor, frankly, most of the evidence in this case.

 7             I'm bound to say I'm beginning to come to the point where I agree

 8     with Mr. McCloskey that we have not been in the same courtroom for the

 9     last three years.  I begin to wonder whether at times he still thinks

10     he's back in 2001, trying General Krstic, where these issues,

11     understandably, were not contested.

12             A brief word about unity of command.  It's set out again in great

13     detail in our brief.  The theory that the Prosecution peddle, once again,

14     come from 2001 and Krstic.  All the evidence we have adduced and set out

15     in argument still goes unanswered.  Unity of command is not law; it's a

16     principle.  The most senior officer present being in command is law; see

17     P417, Article 16 and 17.  And the principle of re-subordination of units

18     is law; see P699.

19             As to formal relinquishment, we submit perhaps a little

20     dramatically, but justifiably, that the Prosecution case on that issue is

21     quite literally all over the place.  They suggest in one part of their

22     brief that Vinko Pandurevic was appointed commander of the Zvornik

23     Brigade on the 18th of December, 1992, the date of his arrival in

24     Zvornik, not the date of his formal appointment.  They ignore the fact

25     that he never formally relinquished command of the Visegrad Brigade.

Page 34887

 1     They have Dragan Obrenovic's appointment in October 1992, whereas, in

 2     fact, he wasn't formally appointed until April 1993.  They rely on

 3     formality when it suits them, not when it doesn't.

 4             As to the conversation between General Krstic and Colonel Beara

 5     at about 10.00 on the morning of the 15th of July, captured by the Muslim

 6     intercept operators, a document which I'll show you in due course but

 7     which needs no further amplification, we state that it is simply a

 8     misstatement of the evidence for the Prosecution to say now that no

 9     recourse could be had by either men to the resources of the Zvornik

10     Brigade because they were all employed.  They, self-evidently, were not

11     all employed.  Look at the evidence in this case.  Where did the men come

12     from who went to Rocevic school, who went to Kozluk, who went to Pilica,

13     who went to Kula school?  They came from elements of the Zvornik Brigade.

14     That's the Prosecution's case.

15             There were men available if Krstic and Beara had wanted, between

16     them, to contact somebody to use them.  The whole of the 1st, 3rd, and

17     5th Battalions were unemployed.  There were five and a half thousand men

18     there.  To say that the whole of the resource of the Zvornik Brigade was

19     committed and that was the reason that Beara could not ask

20     Vinko Pandurevic for resources, or that Krstic could not suggest it, nor

21     mention that Pandurevic was on his way back, is fanciful.

22             Seventh point, Dragan Obrenovic's movements on the 13th of 14th

23     of July.  In his closing oral arguments the other day, Mr. McCloskey told

24     us and you, and I think I quote fairly accurately, that he'd searched and

25     searched for evidence as to whether Dragan Obrenovic was in the Zvornik

Page 34888

 1     Brigade Command on the 14th of July.  You will note, from both our brief

 2     and our closing oral arguments, that we have addressed both possibilities

 3     because we acknowledge the Prosecutor's and everybody's difficulties in

 4     establishing, correctly and exactly, his movements perhaps from the time

 5     the prisoners arrived until he came back to the Zvornik Brigade or

 6     reappeared in the Zvornik Brigade on the 15th of July.

 7             Today, for the first time, Mr. McCloskey decided which side of

 8     the fence he was going to jump.  Obrenovic knew all about the murders of

 9     the 14th of July, all about Orahovac, all about everything that went on.

10     You might like to look again at his plea agreements.  (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20             More significantly, the Prosecution ignore the one submission

21     that is generic to the whole package; namely, that Obrenovic didn't have

22     the chance to speak to Pandurevic.  That is consistent with the other

23     evidence of all five of those in attendance at that meeting at about noon

24     on the 15th of July, and, moreover, it is wholly consistent with what

25     Obrenovic said in an interview of 2001, before he stuck his plea deal

Page 34889

 1     with the Prosecution.

 2             Baljkovica.  They still don't, because they can't, answer the

 3     point about the intercepted radio communication between Vinko Pandurevic

 4     and Semso Muminovic.  They go on and on and on about the evidence from

 5     the Krstic trial, fastidiously ignoring the evidence in this case.  I am

 6     glad to hear Mr. McCloskey at last concede that on the 16th of July,

 7     Vinko Pandurevic was not making any sort of decision based upon 40 or 50

 8     men having died; rather, as is reflected in his report of that day, a

 9     belief that he had lost 10 men.  But what about the evidence of the

10     intercepted communication from the day before with Muminovic that showed

11     that prior to the loss of any men, Vinko Pandurevic was amenable to

12     letting the whole of the column free, and (redacted)

13     (redacted)

14     (redacted)

15     (redacted)

16             I might be wrong, but I don't recall any or much evidence in this

17     case about the capability of the 2nd Corps.  They had tanks, did they?  I

18     don't remember hearing a word about that, but let's leave it there.

19             I'd like, really, just to finish by looking at a document that

20     featured on a number of occasions in Mr. McCloskey's submissions.  It's

21     P1179A in the English.

22             I think we need to go down a little bit.  Yes.

23             You probably don't need to re-read this.  It's the last reply by

24     B on that page:

25             "I don't know what to do.  I mean it, Krle.  There are still

Page 34890

 1     three and a half thousand parcels that I have to distribute.  I have no

 2     solution."

 3             What Mr. McCloskey said today, at page 30, lines 11 to 12, about

 4     my client, was:  He chose not to allow them to survive; it was his

 5     choice, not Beara's.  I do wonder whether we have been in the same

 6     courtroom, and I do wonder whether the excitement of advocacy causes him

 7     to say things he can't really mean.

 8             JUDGE AGIUS:  Thank you, Mr. Haynes.

 9             Mr. Bourgon.

10             MR. BOURGON:  Thank you, Mr. President.

11             I also have four issues I would like to raise in rejoinder.

12     Mr. President, it's not because my colleague did not specifically address

13     the case for the Defence of Drago Nikolic.  Drago Nikolic was addressed

14     in two questions posed by the Trial Chamber, as well as in many issues

15     raised by my colleague in his long speech, which did not constitute

16     rebuttal at all, and I wish to address those four issues, Mr. President,

17     very briefly.

18             JUDGE AGIUS:  One moment, Mr. Bourgon.  I need to consult with my

19     colleagues.

20                           [Trial Chamber confers]

21             JUDGE AGIUS:  Can you inform the Trial Chamber which are these

22     four points you would like to address, Mr. Bourgon?

23             MR. BOURGON:  My pleasure, Mr. President.

24             JUDGE AGIUS:  The first matter?

25             MR. BOURGON:  The first issue deals with the Milici hospital, the

Page 34891

 1     question that was put to the Prosecution by Judge Prost.  The second

 2     issue is that of forcible transfer, the question that was put to my

 3     colleague by Judge Kwon.  The third issue has to go into closed session.

 4     It has to do with what my colleague said concerning orders issued by

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8     are directly related to the responsibility of Drago Nikolic.  These are

 9     the four issues, Mr. President.

10             JUDGE AGIUS:  Thank you.

11                           [Trial Chamber confers]

12             JUDGE AGIUS:  How long do you think you will need, time-wise,

13     Mr. Bourgon?

14             MR. BOURGON:  For the four issues, no more than ten minutes,

15     Mr. President.

16             JUDGE AGIUS:  Okay, go ahead.

17             MR. BOURGON:  Thank you.

18             Regarding the first --

19             JUDGE AGIUS:  Try to take even less time, if you can.

20             MR. BOURGON:  I will do my best, Mr. President.

21             JUDGE AGIUS:  I know you will.

22             MR. BOURGON:  The first issue, regarding Milici hospital.

23             In response to the question put to him by the Trial Chamber, the

24     OTP, of course, maintains its allegation that Drago Nikolic would have

25     been involved in this -- in the matter of the patients in the Milici

Page 34892

 1     hospital transferred to Zvornik.  That does not explain, however, why the

 2     Prosecution did not include anything in his brief -- in his final trial

 3     brief about this issue and that during oral arguments did not say

 4     anything, either, about this issue involving Drago Nikolic.  However, the

 5     issue of the Milici patient hospitals was raised during oral arguments

 6     for other accused in this Trial Chamber, but not for Drago Nikolic.

 7             In French, we say that closing arguments is called "requisitoir."

 8     That's when the Prosecution is supposed to ask for something.  Well, they

 9     haven't -- they have not asked for anything concerning this issue.

10             The sole evidence on the record, Mr. President, about the

11     involvement of Drago Nikolic with the Milici patient hospital is the

12     evidence provided by Witness PW-168, and you know what our position is on

13     that.  I don't need to repeat that there is no probative value that can

14     be attached to the statement of facts provided by this witness.

15             One would expect, Mr. President, the Prosecution to recognise

16     when they fail to prove something.  Obviously, they can't do that.  All

17     they can say today is that Drago Nikolic was involved because he was a

18     security officer.  This blatantly insufficient.  Just as Obrenovic did in

19     his statement of facts, the Prosecution tacitly recognised that there is

20     no evidence that Drago Nikolic was involved in this issue.  They cannot

21     say that simply, on one happened, it's part of the joint criminal

22     enterprise, and then they say it's foreseeable.  They have to pick one or

23     the other.  They haven't picked either.

24             The second issue, forcible transfer.  The Prosecution

25     acknowledged that Drago Nikolic is charged with the forcible transfer of

Page 34893

 1     both the men as well as the women, elderly, and children, but they did

 2     not respond to the question as to where is the evidence concerning the

 3     women, the children, and the men, and the elderly.  In the Prosecution

 4     final trial brief, the Prosecution specifically mentions that the

 5     knowledge of Drago Nikolic is based solely on information he would have

 6     received about the prisoners; one, from Popovic on the night of 13 July.

 7     We have already said that this conversation never took place; two, on the

 8     14th, but there is no mention whatsoever of any information that

 9     Drago Nikolic would have received concerning the forcible transfer of the

10     women, the children, and the elderly, and there was nothing, either, in

11     their oral argument.  They put their money on the men.  They should stick

12     to it.  We had arguments on the men.  They did not respond to these

13     arguments.  The OTP likes strict liability.  All my colleague could say

14     today, We had them in the men; well, then we also had them in for the

15     women, the children, and the elderly.  This is absolutely unacceptable.

16             Third issue, if I can move in closed session, Mr. President.

17             JUDGE AGIUS:  Let's go into closed session, please, for a short

18     while -- private session, yes, sorry.

19                           [Private session]

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 34894

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20                           [Open session]

21             JUDGE AGIUS:  Yes, we are in open session.

22             MR. BOURGON:  Thank you, Mr. President.

23             The last issue deals with something also which my colleague said.

24     That was on page 24, lines 1 to 4, and it is directly related to the

25     alleged responsibility of Drago Nikolic.  My colleague said:

Page 34895

 1             "There is no doubt at that point that Krstic would have informed

 2     Pandurevic.  Why?  Because Krstic and Pandurevic had just met that

 3     morning, before Pandurevic was sent back to Zvornik."

 4             Mr. President, there is evidence here that was heard in this very

 5     courtroom about the fact that (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted) and not mention one word of what he had just learned

12     from his subordinate, a second lieutenant, about a murder operation about

13     thousands of prisoners?  It is simply unbelievable and absolutely not

14     possible.

15             What is more, Mr. President, the only evidence you have on the

16     record concerning this intercept, about the identity of one of the two

17     speakers on this intercept, is that which was provided in the statement

18     of fact of Dragan Obrenovic.  We say, Mr. President, that the general

19     that was on the line at that point was not General Zivanovic, it was

20     General Krstic.  Again, Dragan Obrenovic lied in his statement of facts.

21     It is the only evidence you have in this regard.

22             When the Prosecution is asking you to draw inferences about two

23     persons meeting during a conversation and say they must have been

24     speaking about something, they should apply their own standard to the

25     arguments that we put forward.  Mr. President, that conversation between

Page 34896

 1     Drago Nikolic and Dragan Obrenovic on the night of 13 July never took

 2     place, never existed.  It is a complete fabrication with only one purpose

 3     in mind; to escape his liability.

 4             Thank you very much, Mr. President.

 5                           [Trial Chamber and registrar confer]

 6             JUDGE AGIUS:  Yes.  I take it that is all.  Mr. McCloskey, you

 7     feel tempted, but you're resisting the temptation?

 8             MR. McCLOSKEY:  Yes.  There's nothing in the Rules, thank God,

 9     that allows me to speak.

10             JUDGE AGIUS:  Thank you.

11             So we've reached the final stages now.  Sorry about that.

12     Ms. Nikolic and Mr. Bourgon, you still confirm that your client wishes to

13     make a statement, don't you?

14             All right.  Mr. Nikolic, you're free to address the Trial

15     Chamber.

16             THE ACCUSED NIKOLIC: [Interpretation] Mr. President, honourable

17     Judges of the Trial Chamber, when my counsel asked me if I wished to say

18     something at the end of the trial, it took me a lot of time to decide

19     because, as a soldier and non-commissioned officer, I rarely had an

20     opportunity to speak and express my emotions.  It is, therefore, hard for

21     me to explain how I feel today when I'm addressing you.

22             I joined the army as a boy of 15 and spent most of my life in the

23     army.  For me, the army was like a family, and I am proud to say that I

24     was a member of both the JNA and the Army of Republika Srpska.  To claim

25     otherwise would go against everything I believed in all my life.

Page 34897

 1             As far as the war is concerned, I never wanted it to happen,

 2     because the war has never brought anything good to anyone.  Also, no one

 3     I ever knew ever wanted that war.  It is the politicians from all sides

 4     who decided on the war, and they pushed us into bloodshed.  So many lives

 5     were lost, so much damage has been done, that nobody can ever feel good

 6     again after all that happened.

 7             The war has changed my life and the lives of many other people.

 8     In the war, I lost friends, relatives, my home, and the country in which

 9     I was born and where I lived.

10             What happened in July 1995 destroyed everything I believed in as

11     a soldier.  I was not aware of the events of those days until I found

12     myself in the middle of all that.  For the rest of my life, I will keep

13     asking myself whether there was something I could have done that could

14     have changed the course of those events.  In theory, there were probably

15     a lot of things I could have done.  In reality, though, things were

16     completely different, and I was powerless to do anything.

17             Although I was only a second lieutenant, and regardless of the

18     fact that most people in the army disliked the security organ, I thought

19     of myself as a professional officer and I managed to win a certain level

20     of respect within the brigade.  I was loyal to my unit, and I respected

21     my superiors.  However, all that was taken from me after the incident

22     with my commander.  Not only was I isolated from both the commander and

23     the Chief of Staff, but the commander issued explicit orders to battalion

24     commanders and their staff not to inform me of anything, so I was

25     completely isolated.  I was unable to perform my duties as a security

Page 34898

 1     officer in the brigade normally, and I completely ceased to send any

 2     reports to the corps, but I still reported to my commander daily.

 3     Despite all that, I never doubted that the brigade commander was my only

 4     commander.  Anyhow, this situation has nothing to do with the events that

 5     took place in July 1995.

 6             For the last three years, I have been sitting in this courtroom,

 7     listening to the testimony of hundreds of witnesses.  I heard many true

 8     stories, but I also heard a lot of lies.  I often ask myself how you will

 9     ever manage to tell the truth from the lies.

10             I understand the fact that the Chief of the Staff of the brigade

11     pleaded guilty and that, as part of that process, he was asked to provide

12     a statement, but I cannot understand what his motive could have been to

13     tell so many nasty and untruthful things about me.  He was there, he

14     knows what happened on July the 13th, and he knows that I knew nothing of

15     the events until the late hours of July 14th.

16             During the war, I did not like my enemies, but I respected them.

17     And I often had the opportunity to help many Croats and Muslims, which is

18     something I did naturally, without any second thought, because to me it

19     seemed a matter of course.  As a soldier, I was sociable and open towards

20     my community and the people.  I liked all people equally, without any

21     regard for nationality or religion, and I do not feel hatred towards

22     anyone.

23             To say that I was aware of any plan to murder all the men of

24     Srebrenica, or that I wished that to happen, or that I took an active

25     part in all that, is very far from the truth.  I found myself in a

Page 34899

 1     whirlwind of events that I was unable to change or influence in any way

 2     whatsoever.  I was where I was, I did what I did, but I am far from what

 3     some witnesses said about me in this courtroom.  I understand that I bear

 4     some part of the responsibility because at certain moments I was at

 5     Orahovac school on the 14th of July, but I kindly ask you to take into

 6     account my limited possibilities in relation to the events that took

 7     place.  I could not have influenced them in any way.

 8             I wish to take this opportunity to express my gratitude to my

 9     Defence team, people who did everything they could to present the events

10     as accurately as possible as well as my participation in what happened in

11     July 1995.

12             I also want to avail myself of this opportunity to thank the

13     people who came to testify in my defence in this trial.

14             That is all I wanted to say.  Thank you very much for allowing me

15     to speak.

16             JUDGE AGIUS:  Thank you, Mr. Nikolic.

17             Mr. Gvero.

18             MR. JOSSE:  I think he'd like the lectern, please.

19             JUDGE AGIUS:  Yes.

20             THE ACCUSED GVERO: [Interpretation] I don't need it.

21             JUDGE AGIUS:  Let's go ahead, let's proceed.

22             THE ACCUSED GVERO: [Interpretation] Mr. President, Your Honours,

23     honourable Judges, I greet everybody in and around this courtroom.

24             In March 2005, I came to this court speedily and voluntarily.  I

25     was deeply convinced of my innocence, and I was convinced that I would be

Page 34900

 1     afforded a fair trial.  By joining the indictment, I was put in the same

 2     place and the same with some horrendous accusations.

 3             In the absence of any proof against me, it seems that the

 4     Prosecution first listed serious war crimes and subsequently tried to

 5     link me to these crimes at any cost, and put me in the same bed.  During

 6     the whole trial, they were writing an indictment against me.  Eventually,

 7     they dropped some initial charges, but brought in some new ones, of

 8     course, without any proof, which has been proven by my Defence team.  Now

 9     we know that he had some very diligent helpers in this process, and we

10     know who they are.  Precisely for that reason, I would really sincerely

11     like to thank you, the Trial Chamber, who have always treated me in a

12     correct and fair manner, and had understanding for my specific

13     circumstances.  Thank you again.

14             Your Honours, at the beginning of this trial, I spoke briefly, as

15     an introductory note, and I would kindly ask you to include that, if

16     necessary, as part of this address, because I believe that everything I

17     said in my introductory note was proven to be true.  It was proven that I

18     never was in Srebrenica or Zepa.  It is not indisputable that I was in

19     Zepa because the Main Staff of the VRS was in the area of Zepa throughout

20     the war.  It has also been proven that I had no contacts or any knowledge

21     about war crimes or any kind of joint criminal enterprise.  The OTP is

22     continually pushing forward some untenable premises.

23             Your Honours, the Prosecutor, at the beginning of his closing

24     argument, attempted to introduce a new theory of a crime which he called

25     a specific intent, if I understood it correctly.  I would like to say

Page 34901

 1     that I accept this term, but only with quite an opposite meaning to it;

 2     namely, during the entire period prior and during the war, I had a

 3     specific and clear intention to remain a man with solid humanitarian

 4     commitments and to contribute even minimally to preventing the war.  Once

 5     the war started, however, I tried to contribute to putting a stop to it

 6     quickly and taking part in peace negotiations.  I also tried to keep my

 7     face and clean hands during the war.

 8             I always had in mind the words of Mr. Ivo Andric, who says that

 9     the war in the Balkans is an insane period.

10             THE INTERPRETER:  Interpreters note:  The accused is speaking too

11     fast.  We are very sorry.

12             JUDGE AGIUS:  Yes.  In case you haven't understood, the

13     interpreters are complaining that you are speaking too fast.

14             JUDGE KWON:  If you could start from Ivo Andric.

15             THE ACCUSED GVERO: [Interpretation] Do I have to repeat?  I

16     apologise.

17             Ivo Andric, our Nobel Prize winner, said that in the unfortunate

18     Balkans, a war is a period of insanity during which those who are wise

19     shut up, those who are fools start speaking, and the thugs get rich, and

20     the rich become poor.

21             I also wanted to contribute as much as possible to diminishing

22     the suffering of everyone involved in the war.  I was constantly involved

23     in various commissions and peace negotiations, and whenever possible I

24     advocated the cessation of hostilities and peaceful solutions.  I kept

25     repeating, and there are hundreds of evidence to that, that it is better

Page 34902

 1     to negotiate for a thousand days than to wage war for one day, because

 2     there are no victims as a result of negotiations.

 3             As an educator and as an assistant for moral guidance and

 4     religion, I highlighted various examples of how a man can remain

 5     honourable during the war, because any victory without honour is --

 6     equals defeat.  I sent various quotations to units, including from holy

 7     scriptures, also examples from the history of our wars and other wars,

 8     describing the humane treatment of the civilians and enemies, and I

 9     always pressed the point that this should be pursued by our army too.

10             Your Honours --

11             JUDGE AGIUS:  Mr. Gvero, if you wish to sit down, please do so.

12             THE ACCUSED GVERO: [Interpretation] Well, since nobody else was

13     sitting down, I don't want to make a precedent.

14             JUDGE AGIUS:  It's up to you.  I'm just offering you in case you

15     will feel more comfortable.

16             THE ACCUSED GVERO: [Interpretation] Thank you, President.  I'm

17     going to avail myself of your offer.

18             Your Honours, throughout the trial the Prosecutor persisted in

19     ascribing to me the characteristics that are totally contrary to what I

20     am and are foreign to me as a person.  He couldn't find any valuable or

21     valid proof of that, but he nevertheless persisted.  I would like to say

22     a few words that confirm my consciousness and my behaviour that have been

23     undisputably corroborated by documents and numerous testimonies.

24             I acted in continuity both before, during, and after the war.  As

25     a young officer and someone who was extremely in favour of brotherhood

Page 34903

 1     and unity, as well as an officer who has civilian education, I was

 2     appointed a principal of the school called Brotherhood and Unity.  It had

 3     been officially proclaimed the best school in Serbia, and I was given and

 4     decorated a medal for that.  Hundreds and hundreds of young men from all

 5     over Yugoslavia, including the Muslims and the Albanians, grew up under

 6     my guidance, and they became good officers.  "Brotherhood and unity" is

 7     not a shallow phrase.  That was the main characteristic of that time, and

 8     I wish it to remain the same today.  This was a bridge that was

 9     connecting people, that was connecting different social strata and

10     nations.

11             At the time, I also wrote various scientific papers dealing with

12     integration processes in the world.  I was very much interested in the

13     process of integration, not disintegration.  The processes of integration

14     and not disintegration was something that we heard testimonies to in this

15     courtroom as well.

16             In 1991 and early 1992, I believed that the JNA forces would act

17     as a buffer to prevent any inter-ethnic conflicts.  I believed that the

18     war was avoidable, because this unnecessary and devastating war could not

19     bring any good to anyone.  It would only bring evil and victims.  And I

20     spoke and wrote about this publicly.  However, when the war in the former

21     B and H began, I found myself in that area.

22             Immediately upon the creation of the Army of Republika Srpska, I

23     prepared a paper, and it was distributed to all units, containing their

24     obligation to abide by the International Humanitarian Law and Geneva

25     Conventions.  I kept repeating this information throughout the war on

Page 34904

 1     numerous occasions, and this was not propaganda, as the OTP pleads.

 2             In June 1992, I already distributed this information to the

 3     units, and it has been omitted here into evidence.  In this document, we

 4     reiterated how important it is to prevent any revenge against innocent

 5     civilians, to prevent looting and burning, and I quote:

 6             "These kind of acts cannot and should not be something to be done

 7     by members of our army, because that tarnishes the reputation of a

 8     Serbian soldier.  We cannot tolerate any incorrect and abuses against

 9     other people simply because they are not Serbs."

10             I also insisted, in this same document, that they should employ

11     humane and friendly treatment of international organisations and the

12     media.

13             Your Honours, I believe that the Prosecution's allegation about

14     this being simply propaganda doesn't stand.  This was my belief.  I

15     didn't publicise this for the sake of propaganda.  I just wanted every

16     soldier in every unit to have that.  This was not a shallow propaganda

17     story for the media.  This proves my specific intent and intentions that

18     I never abandoned even in the most of difficult situations.

19             In June 1992, when the brigade of the VRS was formed, I said,

20     among other things, the Serbs want peace, the Serbian people are not

21     fighting against any other people, but rather against the ideology and

22     the practice of blind anti-Serbian attitude.  Anyone who knows what

23     horrors war can bring, it's the Serbs who know.  That is why their

24     primary wish is to have peace; nothing else.  But we are not going to

25     give up on what we have.  This was published in all the media.  The OTP

Page 34905

 1     must have this, but this was never used.

 2             Further on, in the book "Who's Who in Republika Srpska," an

 3     unidentified journalist cited my words as follows:

 4             "The Serbian Army is waging war, but we are not barbarians, we

 5     are not fighting women, children and the elderly.  Ours is a chivalrous

 6     war."

 7             Here is a copy of that document.  It was probably in 1994.

 8             In July 1995, I sent, for the umpteenth time, one document to the

 9     Drina Corps concerning the need to abide by International Humanitarian

10     Law and treat the members of the UNPROFOR fairly and decently.  I could

11     quote a hundred examples like this.

12             I recommended to the commander of the Eastern Bosnia Corps to

13     transfer prisoners safely to their territory, and that was done.  Nobody

14     was abused.  In another time, I helped the Muslim general go for medical

15     treatment in Belgrade.  I can prove that.  But there are many other

16     examples for which -- which I cannot document here.

17             There is a plethora of other evidence confirming my specific

18     intent.  Throughout the war, I tried to contribute to creating conditions

19     and a climate in which all the soldiers would understand and accept the

20     need to abide by International Humanitarian Law and International Law of

21     Warfare.  Many witnesses confirmed that this was done here, that they

22     were aware of it, that there had been training on this.

23             Your Honours, at one point in time the Army of Republika Srpska

24     had around 220.000 troops deployed in around 143 large units, thousands

25     of battalions, companies, and squads.  It's clear that I could not have

Page 34906

 1     been present with every unit at all times and control and inspect how

 2     regulations were honoured, but I am quite sure that I performed my duties

 3     properly.  Everybody knew how they were supposed to act.

 4             The duties of an officer for morale and religion were redefined

 5     and frequently mis-described in this courtroom.  It's difficult to

 6     understand them, for laymen especially.  Even many officers in the VRS

 7     did not quite understand what my job was, as you could hear from the

 8     testimonies of many high-ranking officers who testified here.

 9             I have 40 years of experience.  I'll give you an example.  One

10     priest has a small parish under him, whereas an archbishop has a much

11     larger parish, figuratively speaking, thousands and thousands, and he

12     gives them guidance, how they should act in everyday life.  The

13     archbishop cannot answer -- cannot be held responsible for individual

14     crimes unless he, the archbishop, instigated it.  In history, there are

15     no examples indicating otherwise.

16             In the army, the assistant command for religion and morale is not

17     within the chain of command.  He does not issue any orders to anyone.  He

18     just sends out moral, ethical messages, what kind of conduct is

19     desirable, what rules troops should abide by, et cetera.  If a crime

20     happens somewhere, he cannot be held responsible, personally.  He can

21     only express regret and learn a lesson, just as not a single cardinal or

22     archbishop who was held criminally liable for any of the parishioners'

23     acts.  My job is more alike to what the priests do than what officers

24     within the chain of command do.

25             There were five Orthodox bishops in the area where I worked, and

Page 34907

 1     I frequently cooperated.  Now some of them have taken part of my job.

 2             Your Honours, I'm not saying at all that there have not been

 3     cases of violations of international rules of warfare, but I am claiming

 4     that this was not done with my knowledge, and I was never informed of it.

 5     I want to be quite clear.  I quite accept and support the standards of

 6     international law, including those governing criminal liability.  I have

 7     always abided by them in war, and I think I've never made a mistake.

 8     I've always said, and I still say it today, that I am -- that I cannot

 9     express how sorry I am for every human life that was lost, for every

10     person who was mistreated or who suffered unnecessarily in the past war

11     in Bosnia and Herzegovina, both people in the Drina Valley and in the

12     Krajina, those in Bratunac and Srebrenica, as well as those in my own

13     town of Mrkonjic, where the largest mass grave is located, for those in

14     Sarajevo or in Zepa, regardless of their ethnicity, religion, the colour

15     of their skin, the place where they lived.  All of them are my

16     compatriots, my fellow citizens, and my neighbours.  I am deeply sorry

17     for all of them.  Victims are victims, and criminals are criminals.

18     However, the greatest crime was committed by the war, itself; the

19     merciless war, the ruthless war, and those who started it.

20             Your Honours, throughout the trial you have seen various

21     documents in which political party and military leaders sling mud at me

22     and try to tarnish my honour.  I don't answer all these accusations.  I

23     could speak for hours, explaining why I never answered any of this, but I

24     won't.  I'll just say a few words.

25             Throughout the war, there was disharmony and discord between the

Page 34908

 1     eastern and western parts of Republika Srpska, and this was frequently a

 2     topic of discussion at the Assembly of Republika Srpska.  It was

 3     considered that the west of Republika Srpska is bearing all the burden of

 4     war without gaining anything.  Even in the end of 1994 and in 1995, it

 5     became clear that the western part is about to surrender, without combat,

 6     and that our resources are spent elsewhere.  This destroyed the morale of

 7     our army, and our troops often told me about it.  And I witnessed all of

 8     these under-hand games and plans.  That's why they wanted to put stokes

 9     in my wheels and disable my work.  They put in motion a powerful

10     propaganda machine against me, and they wanted to replace me by an

11     obedient "yes" man.  I was eventually replaced by Miroslav Deronjic, an

12     activist of the leading party.

13             In 1995, I was strongly against the engagement of the VRS in

14     Podrinje, or anywhere else in Eastern Republika Srpska, for that matter.

15     The leading people in Republika Srpska and in the army knew that.  The

16     only people who agreed with me were assistant commanders, Djukic, Maric,

17     and many other officers, as well as the vice-president, Koljevic.

18             It is quite symptomatic that General Maric was in the car with me

19     when we suffered a car crash in March 1995, so we spent a long time

20     convalescing outside the territory of Republika Srpska.  Shortly

21     afterwards, General Maric had another car accident, and he succumbed to

22     his injuries.  These incidents were never properly investigated.

23             It was quite clear that I could not participate in the

24     elaboration of Directives 4 and 7, because I was simply not there.  I saw

25     these documents for the first time in The Hague.  The Prosecutor never

Page 34909

 1     proved otherwise.  Therefore, I believe that all the attention should be

 2     given to the western part of the RS, where the army was exhausted, rather

 3     than the eastern part, which was not crucial for the outcome of the war.

 4     That's why many plans were hidden from me.

 5             Since I was unable to properly perform my duties as assistant for

 6     morale and religion, I tried to resign a couple of times, and the

 7     commander tore up my resignation, saying that this was a very hard time

 8     and I was needed.  Why did I do that?  Certainly not for personal

 9     material interests.  I believed that it was immoral to do such things in

10     war.  I did not need promotion or position or wealth.  Simply, I acted in

11     the only way in which I could save my honour, help the army and the

12     people, and alleviate the suffering that was impending, and that's what,

13     in fact, happened eventually.  And only thanks to Vice-President

14     Koljevic, a great intellectual and a great human being, the

15     Dayton Accords were achieved, and my hometown of Mrkonjic survived.

16             After many testimonies and evidence about the discord among the

17     leading people in Republika Srpska, especially in the eastern part of the

18     territory and in Podrinje, there is no reasonable grounds for thinking

19     that I could be in any joint criminal enterprise precisely with those

20     people, who are advocating everything that was contrary to my beliefs and

21     who were orchestrating my personal liquidation.

22             Mr. President, Your Honours, I always believed, and I still

23     believe, that this Court is an institution of all the member countries of

24     the United Nations.  That's why everything it does, all its

25     documentation, is a treasure for all the countries of the world, for now

Page 34910

 1     and in the future.  I am sure that with the increasing integration in the

 2     world, the contents of this Court's work will be a subject of interest

 3     for historians, scientists, and researchers in the entire world.  They

 4     will be engaging in seeking unbiased solutions and learning.

 5             Your Honours, when, in March 2005, I was departing for The Hague,

 6     the prime minister of Serbia and Vladika Grigorije [phoen] told me, with

 7     tears in their eyes, that they were aware that they were sending to

 8     The Hague an innocent man, but it was in the interests of the state.

 9     They also said there was a promise by Ms. Del Ponte that I would be in

10     The Hague only in the days of the trial and that I would be provisionally

11     released whenever possible.  However, the prime minister changed, and

12     there is no more Ms. Del Ponte, and the Prosecutor wants me to die in

13     prison.  He opposes my treatment in Serbia, in spite of numerous

14     professional opinions both here in The Hague and from Belgrade, some of

15     them internationally-renowned medics.  They are expecting me to submit a

16     plea for clemency when I'm 105.

17             With all these unsubstantiated charges, accusations, against me,

18     innuendos, speculation, in the conviction that lies many times repeated

19     would stick to a man who does not have the backing of any state or

20     institution, and who has no resources for defence, I can only put my

21     faith in justice and in God's justice.  But I also believe in your

22     professional, unbiased skills, and that is why I expect an acquittal.

23     Anything else would be the beginning of the twilight, not only for me,

24     who doesn't have much life ahead of me, but also for the civilisational

25     values of humanity.

Page 34911

 1             Your Honours, I could say much more, but I will stop here.  Thank

 2     you for allowing me to say this much.  I'm sorry if my speech was not

 3     legally polished.  I hope you'll understand that in the past four and

 4     five years, I have not had much opportunity for public speaking.

 5             Thank you very much.

 6             JUDGE AGIUS:  Thank you, Mr. Gvero.

 7             It's time for the break.  However, we are practically finished.

 8     Could I ask for your indulgence, everyone, interpreters, technicians,

 9     staff, to over-stay by about five to six minutes.  We have something to

10     say, ourselves, now, and then we can all go home.

11             Okay, I thank you.

12             For three whole years, we have travelled together, sometimes in

13     calm, sometimes in rough waters.  Today, we come to the end of this long

14     journey before we embark, as from tomorrow, on another one, which

15     hopefully in a few months' time will see us hand down the final judgement

16     in this case.

17             Surely, you will agree with me that this has been a long,

18     labourious, complex, and, in some respects, a very difficult case,

19     difficult to conduct and not easy to bring to an end.  There are many

20     things that could go wrong in a simple case, let alone in one of this

21     magnitude.  But I am glad to note, and I hope, again, that you will agree

22     with me, that things went fine in this case.  In my opinion, completing

23     this case in just over three years, considering the number of accused,

24     the largest ever so far, the number of witnesses, and the voluminous and

25     complicated evidence, is, indeed, a remarkable achievement.  This is

Page 34912

 1     besides considering that together, we succeeded in achieving this in a

 2     spirit of cooperation and in a smooth and constructive manner.

 3             Having said so, let me, first and foremost, say something on a

 4     very personal note.

 5             My first duty today is to thank my three colleagues, Judges Kwon,

 6     Prost, and Stole.  Your contribution throughout the case has been

 7     formidable, and it is only owing to your constant help and support, your

 8     experience, your patience, your advice and wisdom, and effective

 9     participation, that I have managed to survive this trial.  I, therefore,

10     publicly thank you from the bottom of my heart.  It has been an honour

11     and a pleasure working with you, and I look forward to concluding,

12     together, the mammoth task of arriving to the final judgement with

13     encouragement and a great sense of optimism.

14             In this case, we have had no significant disruptions from either

15     the officers in charge of the Prosecution, or from any of Defence

16     counsel, or, for that matter, from any of the accused.  This has made it

17     possible for this case to proceed and come to this final stage without

18     major stress, friction, or tension.  On behalf of the Trial Chamber, I

19     wish to register our appreciation of this.

20             You will recall that one vital decision we took at the very

21     beginning of the case was to impose as little limitations as possible on

22     any of you.  It was a risk that we agreed to take, putting our trust in

23     you.  We allowed you full freedom to present your respective cases,

24     without undue interference or restrictions.  Today, three years later, I

25     feel confident that this experiment proved successful.

Page 34913

 1             So we thank you all, Prosecution and Defence, without

 2     distinction.  You have all excelled.

 3             The Trial Chamber is also thankful to those counsel who have,

 4     since the start of this case, either left, like Mr. Meek, Mr. Stojanovic,

 5     Ms. Condon, and Mr. Sarapa, or passed away, like Mr. Nebojsa Mrkic, who

 6     we remember with sympathy.

 7             We have a list of persons the Trial Chamber wishes to thank.  I

 8     start with the Registrar.  That means Mr. Hans Holthuis and his

 9     successor, Mr. John Hocking.  The case was a challenge to them as well,

10     and they came out of it with flying colours.  I also wish to thank

11     Mr. Ken Roberts, now Deputy Registrar, who over the past years looked

12     after our staffing needs with great efficiency and in a timely fashion.

13     A word of thanks also goes to Ms. Catherine Marchi Uhel for coordinating

14     several matters for us.  Thank you.

15             We thank our women at the Registry, starting with Ms. Pauline

16     Thomas, Registry Officer in charge of our case.  She was always there

17     when we needed her, and she was always ready with a solution.  We thank

18     Ms. Yaiza Alvarez Reyes, who is gracing us with her presence today.  She

19     lived with us most of the case, and we thank, of course, her successor,

20     Mr. Srdjan Mujanovic.  Both of you, you've been very helpful.

21             Our thanks also to Eva Trevisan, our Usher.  Eva, your

22     performance has been impeccable.

23             Our thanks to Ms. Carline Ameerali, the deputy head of CLSS.

24     Sometimes we gave you headaches, but you came through it fine.  Thank

25     you.

Page 34914

 1             We thank CLSS for their unstinting efforts and support.

 2             As I said on previous occasions, the interpreters have one of the

 3     most difficult jobs in this Tribunal, and I think you will all agree with

 4     me that within this case they have been extremely patient, forthcoming,

 5     and efficient.  Ms. Maja Ruzic, your deputy, Ms. Marijana Nikolic, and

 6     the rest of you have been simply super.  Thank you.

 7             The same goes to the stenographers and recorders.  You, too, have

 8     succeeded in keeping pace with the proceedings, and I thank you all, as

 9     your work has not always been easy.

10             You will surely recall that several times we overstayed our

11     sitting time, like today.  We acknowledge once more that on each and

12     every occasion, all those supporting the courtroom agreed to stay with

13     us, making it possible to go ahead.  Thank you all.

14             The Trial Chamber also wishes to thank Mr. Rob Barsony, on behalf

15     of the Audio and Visual Unit, and his team, as well as Mr. Michel

16     Lagerweij and his staff in the Technicians Unit.  The E-Court Section

17     also deserves special mention, and I'm sure Mr. Bassem Malaeb will convey

18     our thanks to his staff.  Together these three teams made it possible for

19     the case to proceed more smoothly, without significant hitches.  Thank

20     you.

21             I cannot forget, of course, the VWS section, and so more than a

22     word of thanks goes to them, and also to the persons responsible for our

23     transcripts.  I understand our transcript contact was

24     Ms. Rosalind Matias.  And as far as the VWS Section, apart from the head,

25     of course, we owe a lot to Ms. Isabel Skukan.  Thank you.

Page 34915

 1             A word of thanks also goes to OLAD, chief of that section, and

 2     Officers Susan Stuart, Alma Delic, Sandra Grubic and Mirna Zurzulovic.

 3             The security section of the Tribunal, we thank you all, and I am

 4     sure that your chief, Ms. Bonnie Adkins, will convey this message to you,

 5     all that have helped things proceed smoothly and without major problems

 6     in the course of this trial.

 7             I next wish to thank our respective secretaries, Ms. Renee Seu,

 8     Ms. Barbara Queguiner, Ms. Arlette Borgdorff, and up to a year ago

 9     Mr. Rudi Hubeau.  They all have worked hard, indeed, staying here long

10     hours to help us be prepared for every sitting in a most efficient

11     manner.  You've been precious, all of you.

12             Last but not least, our staff.  Our Senior Legal Officer, John

13     Cubbon, Suzanne Malmstron, Claudia Hoefer, Audrey Fino, Nakako Onishi,

14     Ofra Natif, who leaves the Tribunal and the Trial Chamber this week,

15     Nolwenn Guibert, who will be moving to another case, Ruben Karemaker, who

16     joined us in the course of the trial, Leah Campbell, Giulia Chiara,

17     Petra Dijkstra, Naka-Hee Hyun, a fellow, and interns Amitis Khojasteh,

18     Maria-Elena Vignoli, Rosa Aloisi, Gregory Shannon, Mark Hosking.  I also

19     must mention legal officers who have since left; namely, Lucia Catani,

20     Mr. Young Seung Song, a fellow, Tilman Blumenstock, who has since left,

21     Mary Fan, Bacle Don Taylor, and James Bischoff.  I also thank the

22     Trial Chamber's secretary, Leigh-Anne Lemstra, and her predecessor,

23     Dupravka Polic, for their assistance.

24             A word of thanks goes to all those interns, some 30 of them, who

25     came and left in these three years.  Their contribution, too, has been

Page 34916

 1     very helpful.

 2             Finally, I would like to thank the Government of South Korea for

 3     providing us with a fellow for two years running.  First, Mr. Song, who

 4     left recently, and now Ms. Hyun, who will be here with us until the end

 5     of this case and who will then move to another case after that.

 6             So, my dear colleagues, we leave you here with what we believe is

 7     a positive note.  We shall meet again in a few months' time for the final

 8     judgement.

 9             Thank you.

10                           --- Whereupon the hearing concluded at 5.57 p.m.