1 Tuesday, 3 December 2013
2 [Appeals Hearing]
3 [Open session]
4 [The Appellants entered court]
5 [The Appellant Miletic not present]
6 --- Upon commencing at 10.01 a.m.
7 JUDGE ROBINSON: Mr. Ostojic, I'm going to call on counsel for
8 Mr. Miletic first to give us an update.
9 Private session.
10 MS. FAVEAU: [Interpretation] Good morning, Your Honours.
11 [Private session]
15 [Open session]
16 THE REGISTRAR: Your Honours, we're back in open session.
17 MR. OSTOJIC: Thank you.
18 Once again, good morning, Mr. President, Your Honours. Today we
19 would like to proceed with my assistant and co-counsel, Norm Sepenuk, to
20 present the first part of our oral argument and discussion. Thank you.
21 And of course, I'll proceed with the other parts that we discussed
22 yesterday afternoon. Thank you.
23 JUDGE ROBINSON: Thank you.
24 Yes, Mr. Sepenuk.
25 MR. SEPENUK: Thank you, Mr. President. And may it please the
1 Judges of this honourable Chamber. Unlike the prior submissions to
2 Your Honours, I'm not going to be speaking this morning about any factual
3 disputes at all. What I'm going to be making here is purely a legal
4 argument, and for the purpose of my legal argument, I'm going to assume
5 arguendo that all of the government witnesses in this case have told the
6 complete truth. And now I'd like to commence the legal argument I will
7 be making.
8 Mr. Beara was charged by the Prosecution and convicted by the
9 Trial Chamber of genocide. The genocide charge being that Mr. Beara was
10 a participant in a joint criminal enterprise to eliminate the Bosnian
11 Muslims of Srebrenica by killing the men and boys there and forcibly
12 removing from the area the women, young children, and elderly men. The
13 Trial Chamber found that Mr. Beara intended to destroy the Bosnian
14 Muslims of Eastern Bosnia, which included the Srebrenica and Zepa
15 enclaves as part of the Bosnian Muslim national ethnical group.
16 In finding Mr. Beara guilty of genocide, the Trial Chamber
17 acquitted him of the forcible transfer charge. In view of this
18 acquittal, our argument in a nutshell is that Mr. Beara must also be
19 acquitted on the genocide charge, since he did not have the genocidal
20 intent to destroy the Bosnian Muslims of Eastern Bosnia as a part of the
21 protected group. The balance of my argument is devoted to the
22 proposition that only a combination of the convictions for the mass
23 killings of the men and the forcible transfer of the women and children
24 that permits a finding of Mr. Beara's genocidal intent. Our argument is
25 strongly supported, we submit, by the case law of this Tribunal,
1 particularly by the holding of the Trial Chamber and the Appeals Chamber
2 in the Krstic case, to which I now would like to turn.
3 Some ten years ago, in November 2003, I stood before this Appeals
4 Chamber as co-counsel for General Radislav Krstic. General Krstic had
5 been convicted by the Trial Chamber of genocide, forcible transfer, and
6 other crimes arising out of the mass killings in the Srebrenica area of
7 the military-aged men and the forcible transfer from the area to Bosnian
8 Muslim-held territory of some 25.000 women, children, and elderly men.
9 Granted -- and in finding General Krstic guilty of genocide, the
10 Trial Chamber stated as follows, and I'm quoting from paragraph 595 of
11 the Trial Chamber's opinion.
12 "Granted, only the men" -- this is what the Trial Chamber said.
13 "Granted, only the men of military age were systematically
14 massacred, but it is significant that these massacres occurred at a time
15 when the forcible transfer of the rest of the Bosnian Muslim population
16 was well under way. The Bosnian Serb forces could not have failed to
17 know, by the time they decided to kill all the men, that this selective
18 destruction of the group would have a lasting impact upon the entire
19 group. The Bosnian Serb forces knew, by the time they decided to kill
20 all the military-aged men, that the combination of those killings with
21 the forcible transfer of the women, children, and elderly would
22 inevitably result in the physical disappearance of the Bosnian Muslim
23 population at Srebrenica."
24 On the appeal from this conviction, I argued at that time that
25 though General Krstic was clearly involved in organising the bussing
1 operation that effectuated the transfer of the women and children, that
2 this should not be considered as a factor in determining genocidal
3 intent, as the Trial Chamber had held. Our argument at that time,
4 largely based on an analysis of the legislative history of the
5 Genocide Convention of 1948, was that displacement of the population to
6 another area was not evidence of genocide and could not be legally
7 considered as such. To the contrary, we argued that the transfer of the
8 women, children, and elderly men to safe areas under Bosnian Muslim
9 control show that General Krstic's intent was not the indiscriminate
10 group killing of, say, the Nazi and the Rwanda genocides, but rather
11 indicated an intent to spare the group from any further harm.
12 Well, as this Trial Chamber knows, we lost that argument. And in
13 rejecting our argument, the Appeals Chamber stated - and I'd like to
14 quote from the Appeals Chamber's findings and this is in paragraphs 31 --
15 30 and 31 and 33, and this is what the Appeals Chamber said in rejecting
16 that -- our argument at the time:
17 "The Defence argues that the VRS decision to transfer, rather
18 than to kill, the women and children of Srebrenica in their custody
19 undermines the finding of genocidal intent. This conduct, the Defence
20 submits, is inconsistent with the indiscriminate approach that has
21 characterized all previously -- or previously recognized instances of
22 modern genocide.
23 "The decision of Bosnian Serb forces" -- continuing now with what
24 the Appeals Chamber said. "The decision by Bosnian Serb forces to
25 transfer the women, children, and elderly within their area -- within
1 their control to other areas of Muslim-controlled Bosnia could be
2 consistent with the Defence argument. This evidence, however, is also
3 susceptible of an alternative interpretation. As the Trial Chamber
4 explained, forcible transfer could be an additional means by which to
5 ensure the physical destruction of the Bosnian Muslim community in
6 Srebrenica. The transfer completed the removal of the Bosnian Muslims
7 from Srebrenica, thereby eliminating even the residual possibility that
8 the Muslim community in the area could reconstitute itself."
9 And then finally, this quotation from the Appeals Chamber,
10 paragraph 33:
11 "The Trial Chamber - as the best assessor of the evidence
12 presented at trial - was entitled to conclude that the evidence of the
13 transfer supported its finding that some members of the VRS Main Staff
14 intended to destroy the Bosnian Muslims in Srebrenica. The fact that the
15 forcible transfer does not constitute in and of itself a genocidal act
16 does not preclude a Trial Chamber from relying on it as evidence of the
17 intentions of members of the VRS Main Staff. The genocidal intent may be
18 inferred, among other facts, from evidence of 'other culpable acts
19 systematically directed against the same group.'"
20 JUDGE ROBINSON: Can you just tell us where in the appeal brief
21 this argument is found? What paragraph?
22 MR. SEPENUK: The -- it's found, Your Honours, in the part of the
23 appeal brief which talked about the Trial Chamber erred when it
24 misapplied the element of mens rea required for the crime of genocide in
25 finding that Beara had specific genocidal intent to destroy the targeted
1 group, the targeted group being the Bosnian Muslims. That's on page 7 --
2 71, I believe. I think it's 71, Your Honours, of the brief. And it's
3 ground 19. And also the fact that it was not the only -- what happened
4 was it was not the only reasonable inference on the evidence that
5 Mr. Beara had genocidal intent. More specifically, in paragraph 224 of
6 the trial brief where it said:
7 "It is respectfully submitted that the Defence in this case has
8 presented an abundance of evidence to support its claim that actions
9 taken in the enclave, particularly those against the male population,
10 were not taken with the intent to destroy the Bosnian Muslims of
11 Srebrenica and Zepa, though that Beara possessed at any moment such
13 JUDGE ROBINSON: Yes, please continue to develop your argument.
14 MR. SEPENUK: Thank you, Your Honour.
15 And I'd like to refer also to the partial dissenting opinion of
16 Judge Shahabuddeen, as this Chamber knows, a very distinguished former
17 member of this Chamber. And Judge Shahabuddeen in his partially
18 dissenting opinion agreed with all the notions of genocide intent that
19 the majority had mentioned. His partial dissent had to do with -- he
20 thought General Krstic was guilty of genocide, whereas the majority found
21 him guilty -- they reduced charge from being a principal perpetrator to
22 being an aider and abettor. But on the fundamental notion of genocidal
23 intent, both the majority and Judge Shahabuddeen were together on that.
24 And I think because his language is so precise and so accurate that --
25 bear with me, please, while I quote it.
1 On paragraph 35 of his opinion, and he said this:
2 "Thus, standing alone, forcible transfer is not genocide. But in
3 this case the transfer did not stand alone, and that indeed is the basis
4 on which the Appeals Chamber rejected the Defence argument that it showed
5 that there was no genocide. It was part - an integral part - of one
6 single scheme to commit genocide, involving killings, forcible transfer,
7 and destruction of homes. In particular, it showed that the intent with
8 which the killings were done was indeed to destroy the Srebrenica part of
9 the Bosnian Muslim group. In my view, the judgement of the Appeals
10 Chamber has to be understood as affirming that, by taking on the role of
11 chief executor of the policy of forcible transfer," and here
12 Judge Shahabuddeen was referring to General Krstic who sort of organised
13 the bussing operation, "by taking on the role as chief executor of the
14 policy of forcible transfer - an inseparable element of genocide - the
15 appellant shared the intent of the Main Staff to commit the crime of
17 And then again, just briefly, paragraph 57 of
18 Judge Shahabuddeen's opinion, where he said:
19 "No doubt, mere displacement does not amount to genocide. But,
20 in this case, there was more than mere displacement. The killings,
21 together with a determined effort to capture others for killing, the
22 forced transportation or exile of the remaining population, and the
23 destruction of homes and places of worship, constituted a single
24 operation which was executed with the intent to destroy a group in whole
25 or in part within the meaning of the chapeau to paragraph 2 of Article 4
1 of the Statute."
2 Continuing Judge Shahabuddeen, just one more -- two more
4 "It was this combination of factors to which the Trial Chamber
5 referred when it stated in paragraph 595 of its judgement that the
6 'Bosnian Serb forces knew, by the time they decided to kill all the
7 military-aged men, that the combination of these killings with the
8 forcible transfer of the women, children, and elderly would inevitably
9 result in the physical disappearance of the Bosnian Muslim population at
11 I believe it's fair to say that the Krstic appeals judgement has
12 become the leading and most authoritative case on the subject of
13 genocide, and particularly as to any alleged genocidal conduct that
14 occurred in the Srebrenica area at the times in question. Following the
15 Krstic appeals judgement, all of the Srebrenica cases have involved
16 indictments charging a combination of the killings and the forcible
17 transfer from Srebrenica. These include the Blagojevic and Jokic cases
18 and also they include the Tolimir, Karadzic, and Mladic cases. The
19 template for these latter cases was set by the Krstic appeal judgement.
20 In each of the subsequent cases, in each of these cases, the Prosecution
21 has followed the holding and rationale of the Krstic appeal judgement by
22 indictments which charge the commission of genocide by a combination of
23 the mass killings of the military-aged men and the forcible transfer of
24 the women and children, resulting in the destruction of the Bosnian
25 Muslims of Eastern Bosnia.
1 For example, in the Tolimir trial judgement, involving
2 essentially the same set of facts of mass murder and forcible transfer in
3 Srebrenica, the Trial Chamber held at paragraph 1157:
4 "... the protected group - the Bosnian Muslim population of
5 Eastern Bosnia - was murdered and suffered serious bodily and mental harm
6 by acts of murder and forced movement, and that the conditions resulting
7 from the acts of Bosnian Serb Forces as part of the combined effect of
8 the forcible removal and murder operations, were deliberately inflicted
9 and calculated to lead to the physical destruction of the Bosnian Muslim
10 population of Eastern Bosnia."
11 Which brings me now to a discussion of the present case involving
12 Mr. Beara. What I call the Krstic appeal judgement template was used in
13 this case, in the case involving Mr. Beara, involving, as it did, the
14 charging of genocide by the Prosecution which combined the mass murders
15 of the men with the forcible transfer of the women and children. And
16 before turning to the indictment itself, we first note that the
17 Prosecution successfully moved for the joinder of Mr. Beara's case with
18 the other co-defendants and alleged as follows, and I quote:
19 "All the indictments relate to the same transaction, a common
20 scheme whose purpose was to ethnically cleanse the Eastern Bosnian
21 enclaves. Specifically, the scheme consisted of two interrelated joint
22 criminal enterprises. One to 'force the Muslim population from the
23 Srebrenica and Zepa enclaves' and the second 'to murder all the
24 able-bodied men captured from the Srebrenica enclave.'"
25 That's in paragraph 9 of the motion.
1 And now, turning to the indictment itself in Mr. Beara's case,
2 the indictment alleges that Pandurevic, Beara, Popovic, Nikolic, and
3 Borovcanin committed genocide, and I'm looking at paragraph 26 now of the
5 "With the intent to destroy a part of the Bosnian Muslim people
6 as a national ethnical or religious group.
7 "(A) kill members of the group by summary execution, including
8 both planned and opportunistic summary executions, as described in this
10 "(B) cause serious bodily or mental harm to both female and male
11 members of the Bosnian Muslim populations of Srebrenica and Zepa,
12 including, but not limited to, the separation of able-bodied men from
13 their families and the forced movement of the population from their homes
14 to areas outside the RS."
15 And the indictment further alleged in paragraph 33 as follows:
16 "The forcible transfer of women and children from Srebrenica and
17 Zepa, as described in this indictment, created conditions known to the
18 accused that would contribute to the destruction of the entire Muslim
19 population of Eastern Bosnia, including, but not limited to, the failure
20 of the population to live and reproduce normally."
21 Based on this indictment alleging a combination of murder and
22 forcible transfer as acts of genocide, the Trial Chamber summarised the
23 theory of the Prosecution's case as follows, this is in paragraph 838 of
24 the Trial Chamber's opinion, and I quote:
25 "The Prosecution alleges that a decision was taken to destroy the
1 Bosnian Muslim population of Eastern Bosnia, which was implemented
2 primarily by separating, forcibly transferring, and ultimately killing
3 members of the group."
4 Thus, the Prosecution, based presumably on the Krstic appeal
5 judgement holding, determined that the genocide conviction of Mr. Beara
6 required genocidal intent with respect to both the execution of the men
7 and the forcible transfer of the women and children.
8 Now, the Trial Chamber acquitted Mr. Beara on the forcible
9 transfer charge, and here's what the Trial Chamber said in paragraph 1334
10 of the opinion:
11 "The Trial Chamber has found that while Beara knew of the common
12 plan to forcibly remove the Bosnian Muslim population, he did not make a
13 significant contribution to it. Similarly, the evidence is insufficient
14 to establish that he aided and abetted forcible transfer in either
15 Srebrenica or Zepa, nor does it demonstrate that he is responsible for
16 forcible transfer through another mode of liability. The Trial Chamber
17 therefore finds that Beara is not criminally responsible for forcible
18 transfer as a crime against humanity."
19 In view of Colonel Beara's acquittal on the forcible transfer
20 charge, our argument is that he must also be acquitted of genocide. This
21 is so because the Prosecution and the Trial Chamber, in following the
22 holding and rationale of the Krstic appeal judgement, determined that the
23 relevant group was the Bosnian Muslims, that is, some 1.400.000 people,
24 the relevant group was the Bosnian Muslims, and that the part of the
25 group targeted for destruction were the Bosnian Muslims of Eastern
1 Bosnia, including the Srebrenica and Zepa enclaves, approximately
2 40.000 people comprising some 2.9 per cent of the Bosnian Muslim
3 population. This was considered by both the Trial and Appeals Chambers
4 in the Krstic case to be a sufficiently substantial number to meet the
5 requirements of the law of genocide, particularly since the murders and
6 forcible transfer operation essentially resulted in the annihilation of
7 the Bosnian Muslim group in Eastern Bosnia, as both the Trial and
8 Appeals Chamber held.
9 By acquitting Colonel Beara on the forcible transfer charge, the
10 only genocidal conduct for which Mr. Beara could be held accountable is
11 the murder of an estimated 5300 men, which is the figure used by the
12 Trial Chamber in this case. Horrible as such killings, indeed any
13 killings, are, the Prosecution and the Trial Chamber have not claimed
14 that the killings of the men which comprise less than one half of
15 1 per cent of the Bosnian Muslim population, meets the substantiality
16 requirement of the law of genocide or constitutes a legally significant
17 part of the targeted group. This being so, how did the Trial Chamber
18 arrive at its finding that Colonel Beara -- that Mr. Beara was guilty of
19 genocide? Here's what the Trial Chamber held, paragraphs 861, 862, and
20 863 of the opinion:
21 "The Trial Chamber finds that the murder operation - from the
22 separations to detention to execution and burial - was a carefully
23 orchestrated strategy to destroy aimed at the Muslim population of
24 Eastern Bosnia. As found earlier, through this murderous enterprise, the
25 underlying acts of killing and the infliction of serious bodily and
1 mental harm were committed. The Trial Chamber is satisfied beyond all
2 reasonable doubt that these acts were perpetrated with genocidal intent.
3 The Trial Chamber" -- the Trial Chamber is going on, paragraph 862:
4 "The Trial Chamber draws further support for its conclusion from
5 'the other culpable acts systematically directed against the same group'
6 in the same time-period, notably the forcible transfer operation and its
7 accompanying circumstances aimed at the population in Potocari. The
8 frenzied efforts to forcibly remove the remainder of the population,
9 while the male members of the community were targeted for murder,
10 provides further evidence that the intent was to destroy."
11 Finally in paragraph 863, and I quote:
12 "Thus the Trial Chamber is satisfied that genocide was committed
13 by members of the Bosnian Serb Forces, including members of the
14 VRS Main Staff, the VRS Security Branch, such as Popovic and Beara,
15 against the Muslims of Eastern Bosnia, as part of the Bosnian Muslims."
16 So clearly, the Trial Chamber, by also mentioning the forcible
17 transfer along with the murders, recognised that this -- it was this
18 combination of factors that resulted in a finding that Mr. Beara had the
19 genocidal intent to destroy the Muslim population of Eastern Bosnia.
20 However, the Trial Chamber acquitted Colonel Beara of the forcible
21 transfer charge with respect to the removal of the Bosnian Muslim
22 population from both Srebrenica and Zepa, nor was the evidence found
23 sufficient by the Trial Chamber to even sustain an aiding and abetting
24 charge as to either enclave on the forcible transfer issue. What the
25 Trial Chamber did find was:
1 "... that while Beara knew of the common plan to forcibly remove
2 the Bosnian Muslim population, he did not make a significant contribution
3 to it."
4 And therefore acquitted him of the forcible transfer charge.
5 Our respectful submission is that it is not enough in finding
6 genocidal intent to justify Colonel Beara's genocide conviction because
7 he allegedly knew of the plan to forcibly remove the Bosnian Muslim
8 population. The special intent requirement of the law of genocide, the
9 dolus specialis, if you will, that we associate with genocide, the crime
10 of crimes, surely required the Prosecution to prove beyond a reasonable
11 doubt that Colonel Beara had the specific intent not only to murder the
12 men but to forcibly transfer the women, children, and elderly men from
14 JUDGE ROBINSON: Sorry, Mr. Sepenuk, but are you saying that the
15 genocidal intent can't be inferred from the killings on their own?
16 MR. SEPENUK: That's exactly what I'm saying, Your Honour, yes.
17 That it cannot. That you need a combination of the killings and the
18 forcible transfer, because if it was just the killings of the men, I
19 don't think that would show the intent to destroy the entire Bosnian
20 Muslim population of Eastern Bosnia. That's the requirement of the
21 Krstic appeal judgement, that the -- that the definition of genocide
22 under those circumstances is to annihilate, to eliminate, the whole
23 Srebrenica/Zepa enclave and the people therein. It doesn't have to do
24 with just the -- if it was just the men, that wouldn't destroy the
25 Bosnian Muslims of Eastern Bosnia, that would just be the military-aged
1 men. I don't think it's substantial either -- number one, it doesn't
2 meet the test of substantiality; and number two, it would violate the --
3 what the Krstic decision --
4 JUDGE ROBINSON: You're saying 5.300 would not meet the test
5 of substantiality?
6 MR. SEPENUK: I don't think so. I don't think so. And, you
7 know, Your Honour, it's a difficult argument to make in terms of --
8 speaking now flatly as a humanitarian or as a member of the human race,
9 but I am saying that, yes, one-half of 1 per cent I don't think meets the
10 substantiality requirement. But more specifically, it doesn't show the
11 intent to destroy the Bosnian Muslims of Eastern Bosnia, which was the --
12 what the Krstic appeal judgement required and presumably what the
13 Trial Chamber in this case required. It was -- you know, there was no
14 idea that it was just the men as opposed to the Srebrenica enclave. It
15 was destruction of the Srebrenica enclave, and I'm saying: Yes, it's not
16 enough just to show the murders of the men, horrific and horrible and
17 terrible as that is.
18 JUDGE ROBINSON: Please continue.
19 MR. SEPENUK: What's that, Your Honour?
20 JUDGE ROBINSON: Please continue.
21 MR. SEPENUK: Thank you.
22 The genocidal intent required by the Krstic Appeals Chamber
23 imposed on the Prosecution the duty to prove beyond a reasonable doubt
24 that Mr. Beara intended to destroy the Bosnian Muslims of Eastern Bosnia
25 by a combination of the mass killings of the men and the forcible
1 transfer of the women and children. By his acquittal on the forcible
2 transfer charge, the Prosecution has not proved the requisite genocidal
3 intent to destroy the Bosnian Muslims of Eastern Bosnia. Therefore,
4 Colonel Beara should be acquitted of the genocide, at the least. As
5 required by the well-established rule of this Appeals Chamber, a finding
6 of genocide is not the only reasonable conclusion to be derived from the
7 evidence in this case.
8 Unless there are any questions, that's the conclusion of my
9 argument, Your Honours.
10 JUDGE ROBINSON: An interesting argument. We'll, no doubt, hear
11 from Mr. Rogers on it.
12 MR. SEPENUK: Thank you.
13 JUDGE ROBINSON: Thank you very much.
14 MR. OSTOJIC: May I proceed, Your Honour?
15 JUDGE ROBINSON: Yes, yes, please.
16 MR. OSTOJIC: Thank you.
17 Yesterday in my overview, I shared with you the first part that
18 Mr. Sepenuk was going to proceed and argue. And also, I told you that we
19 were going to address the Trial Chamber's errors, both legally and
20 factually, as it relates to their findings with respect to Mr. Beara,
21 regarding the joint criminal enterprise to commit murder as well as their
22 finding with respect to the genocidal intent that purportedly he had. In
23 doing so, the Trial Chamber utilised certain evidence which, as we stated
24 yesterday, was unreliable, untrustworthy, and not corroborated. But
25 before we go into the detail, as I highlighted several individuals, the
1 Court and every court, I believe, has to look at these outside or
2 extraneous factors. They look principally for three things: To make a
3 determination if an individual was a participant in a JCE to commit
4 murder in this case, and whether he significantly contributed to it, and
5 then they also look at those same factors for genocidal intent. Those
6 three factors, I think, is somewhat highlighted by the Trial Chamber,
7 although erroneously applied, were the words, were the physical presence,
8 as well as the actions. It's incredibly and, most respectfully,
9 important, I believe, that we properly distinguish each of those three:
10 The words, physical presence, and actions.
11 The Prosecution, unfortunately, mixes those three, simply in an
12 attempt to cloud the issues. I think not only should we distinguish each
13 three, but we should also make a further distinction as to each day as it
14 relates to Mr. Beara. The Trial Chamber noted on paragraph 1299 that
15 there was no direct evidence before it of Mr. Beara's participation in
16 the murder operation prior to July 13th.
17 It's not appeal, it's a fact that we accept and are living with.
18 But the implicit is that there is indirect evidence of his participation
19 in the murder operation. Before we address that, we should examine when
20 on July 13th was Mr. Beara allegedly a participant in this joint criminal
21 enterprise. We suggest, based on the trial record and what the
22 Trial Chamber found, it couldn't have been before his purported
23 8.00 meeting with Mr. Deronjic. The Deronjic evidence is highly suspect
24 for numerous reasons, as I've tried to outline yesterday. That is the
25 only individual who claims that Mr. Beara spoke to him and used the words
1 "kill all." It is the basis of that conversation, those words, that the
2 Trial Chamber found that Mr. Beara was a participant in the joint
3 criminal enterprise. Unfortunately, the Trial Chamber seemingly relies
4 on other evidence to establish corroboration, but they mix the elements.
5 Who else was present with Mr. Beara when he allegedly used those words
6 "kill all" the Bosnian Muslims? No one. Dissecting the trial record as
7 often as you'd like, the only conclusion that a reasonable Trial Chamber
8 could have found was that that evidence was not corroborated.
9 In fact, the Trial Chamber in analysing whether they were going
10 to admit the evidence pursuant to 92 quater of Miroslav Deronjic on the
11 21st of April, 2008, stated as follows, and I quote:
12 "Deronjic's testimony includes evidence pertaining to proof of
13 acts and conduct of the Accused Pandurevic, Borovcanin, and Beara,
14 including the whereabouts of Pandurevic and Borovcanin in July 1995 and
15 Beara's alleged visit to and conversation with Deronjic in his office in
16 Bratunac in the evening of 13 July 1995."
17 And that was on paragraph 58.
18 It proceeds in determining whether it should admit this evidence
19 to state the following:
20 "The Trial Chamber acknowledges that Deronjic's evidence," one,
21 "contains a number of inconsistencies"; two, has "admissions of prior
22 false statements"; and three, "includes uncorroborated claims."
23 Interestingly, it makes the following observation:
24 "This is not disputed by the Prosecution."
25 The Trial Chamber at that point knew that the Prosecution
1 acknowledged and did not dispute the lack of credibility and reliability
2 of the Deronjic evidence; however, in that decision perhaps the most
3 gleaning thing we can see is found on paragraph 62, page 15, where the
4 Trial Chamber states:
5 "What is uncorroborated is his evidence as to the specifics of
6 the meeting and conversation between him and Beara on 13 July."
7 Again, it's paragraph 62, page 15 of their April 21st, 2008,
9 The Prosecution has generally stated, even yesterday, we have to
10 look at the quantity of the evidence. I suggest we look at both, the
11 quality and the quantity of the evidence. The quantity alone may
12 establish certain issues with respect to physical presence or certain
13 issues with respect to action, but there is no evidence to corroborate
14 Deronjic's claim that Beara was in his office and Deronjic's claim that
15 Beara used the words "kill all."
16 The Trial Chamber erred when it accepted that evidence. The
17 Trial Chamber below erred because it mixed the three fundamental elements
18 and confused the issues of words, physical presence, and actions.
19 These issues, as the Trial Chamber at paragraph 1215 of its
20 decision stated, and they claimed, respectfully, that they were going to
21 exercise caution in assessing and attributing any weight to the Deronjic
22 evidence. And they stated that they:
23 "Looked for corroboration with reference to those parts that
24 relates to critical issues ..."
25 At 1215, they tell us they're going to look to find corroborating
1 evidence to those parts that relates to critical issues. What more
2 critical issue can we have when a man is indicted and charged with
3 genocide and other crimes against humanity and the basis of that charge
4 and allegation is that he told someone purportedly, while they were
5 drunk, late at night, with no one else being present: Kill all?
6 Respectfully, the Trial Chamber grossly erred and should not at the first
7 instance admitted the evidence of Mr. Deronjic, but no reasonable
8 Trial Chamber would have given any weight to Deronjic's testimony as it
9 relates to Mr. Beara and that conversation.
10 Let me briefly highlight for you where the Trial Chamber used
11 that evidence of Deronjic, to show you that the impact it had poisoned
12 and infected the entire trial judgement as it related to Mr. Beara. With
13 respect to the JCE to murder, I invite you to look at the two paragraphs
14 of 1301 and 1302, where the Trial Chamber states, in connection with
15 Mr. Beara:
16 "... his contribution to the common purpose cannot be classified
17 as anything other than significant and by his actions," separate element,
18 "and words there can be no doubt that he," Beara, "shared the intent to
19 murder on a massive scale."
20 All three in my view - actions, words, and physical presence - in
21 some instances need to be present. The Trial Chamber found that the
22 actions and words -- what words? It goes on to say, and in order to
23 determine what words the Trial Chamber relied on when it stated this in
24 paragraphs 1301 and 1302, we simply have to look to the preceding
25 paragraph, 1300. At paragraph 1300, the Trial Chamber therein references
1 the only words and they state as follows:
2 "The first evidenced act on the part of Beara illustrates well
3 the pivotal and high level role he played in the murder operation. He
4 arrives on 13 July at the offices of the President of the Bratunac SDS
5 with an order 'from the top' to kill all the Bosnian Muslim males housed
6 in and around Bratunac."
7 If the Trial Chamber properly excluded the unreliable evidence of
8 Deronjic and if it properly excluded this uncorroborative evidence, it
9 would not have concluded that Beara was either a member of the joint
10 criminal enterprise to murder and most certainly it would not have
11 concluded that Ljubisa Beara significantly contributed to the joint
12 criminal enterprise to murder.
13 There certainly is and exists other evidence other than Deronjic
14 as it relates to Mr. Beara, but with respect to those words, the
15 Trial Chamber relied solely and exclusively, in our opinion, or at the
16 very least predominantly on the evidence of Deronjic. The Deronjic
17 evidence has previously found to be notoriously uncorroborated
18 statements, grave inconsistencies in his testimony, his status as a war
19 criminal, benefitting from a plea agreement, the sole nature of his
20 evidence against Beara relates to the acts and conduct of Beara.
21 Interestingly another Trial Chamber in this courthouse, namely,
22 the Karadzic case, had a similar issue, where the Deronjic evidence was
23 offered by the Prosecution, despite the fact - and this is a public
24 record - despite the fact that the Prosecution knew and knows that it's
25 grossly unreliable and should be given no weight. The Trial Chamber in
1 that case rejected the Prosecution's application to admit such evidence.
2 Curiously, the Trial Chamber in its decision, however, knowing of the
3 decision of the Trial Chamber in this case, they tried to distinguish the
4 case and merely distinguished it by stating that in the Karadzic case
5 Deronjic's testimony went to more inordinate acts.
6 There is no recognised standard that one act or more than one act
7 should or should not be the test or the degree to accept or exclude
8 evidence. The rule and jurisprudence is to look whether or not that
9 evidence is credible, whether it's reliable; and if reliable, not just
10 relevant, but if reliable, then you can determine to assess the weight to
11 be given. Given the law in this jurisprudence that there was no
12 corroboration of that very evidence, that Mr. Deronjic and the
13 Trial Chamber relied upon, we believe that it should be excluded and that
14 the case should be reviewed without the evidence of Mr. Deronjic. It
15 simply invalidates the Trial Chamber's convictions of Mr. Beara.
16 The Trial Chamber doesn't stop, though, to use the Beara
17 evidence -- I mean the Deronjic evidence against Mr. Beara just for joint
18 criminal enterprise, as I said. It relies on it extensively to establish
19 special intent in genocide. It even goes further and relies on it in its
20 sentencing of Mr. Beara. I invite you to look with respect to the
21 genocide issue at the Trial Chamber's decision paragraph 1314. This is
22 what they say and I'm highlighting some of it for you:
23 "... his grim determination to kill as many as possible as
24 quickly as possible. His encounters with Deronjic on the night of
25 13 July provide a chilling illustration of a mind set on destruction.
1 He," Beara, "announces an intent to 'kill all' the detained men, and
2 without pause to consider or comment upon the horrific nature of his
3 'orders' he launches into a series of heated exchanges about the best
4 location for this reprehensible undertaking."
5 The Trial Chamber also says, as I stated earlier, at
6 paragraph 1311:
7 "There is no direct ... evidence that Beara had the requisite
8 specific intent for genocide ..."
9 But what they're looking at are the words purportedly stated by
10 Mr. Beara and rely heavily, as I've just highlighted on paragraph 1314,
11 the words that only one individual who was convicted, who lied on
12 multiple occasions in court, who changed his story multiple times, the
13 Trial Chamber relied on that evidence. We continue to object and we
14 believe that that evidence should be given no weight in the consideration
15 and should be excluded.
16 When we -- the Trial Chamber then also goes on and talks about:
17 Well, other people saw Beara at Bratunac SDS. It's interesting that the
18 people the Trial Chamber suggests are reliable and credible to confirm
19 his physical presence were Mr. Borovcanin, Mr. Simic, PW-161, and PW-170.
20 Well, we know Mr. Borovcanin, he did not testify in this case. His
21 interview with the Prosecution was admitted, again subject to 92 quater.
22 Again, does Mr. Beara have any rights? Should he not be presumed
23 innocent? Should he at the least not have the right to cross-examine the
24 witnesses which make any allegations as it relates to him?
25 Nevertheless, the Trial Chamber, we believe, erred because it
1 used Borovcanin's statement to confirm what Deronjic stated. Borovcanin
2 was not present when the discussion between -- allegedly between Beara
3 and Deronjic occurred. Borovcanin does not say that he overheard Beara
4 ever using the word "kill all." The Trial Chamber just says that they
5 were present and Borovcanin allegedly saw them together arguing.
6 Similarly, the Trial Chamber relies heavily on another individual
7 with, I think, less credibility, if possible, than Deronjic, and that is
8 Momir Nikolic, another individual who is notorious for his inconsistent
9 statements, notorious for giving false statements, notorious for changing
10 his own plea agreements to benefit himself, and ultimately he claims,
11 without having any corroboration, that Beara at some point used words to
12 kill or destroy the Bosnian males in Bratunac. His evidence, likewise,
13 although admitted, should be given no weight whatsoever. Again, why? It
14 goes to critical issues of acts and conduct of Mr. Beara and it is not
16 We're not seeking, as the Prosecution, to say the quantitative
17 evidence corroborates it. We're dissecting it and saying: At that
18 instance, was that conversation corroborated by any individual who has at
19 least some trustworthiness, some credibility, some reliability? I submit
20 to you that the Trial Chamber erred when it utilised the evidence of
21 Borovcanin, Momir Nikolic, and Deronjic in assessing Beara's words and
22 his physical presence on July 13th, 1995.
23 No other evidence exists with respect to Mr. Beara about
24 July 13th, 1995. He comes to the scene late, he comes to the scene at
25 night supposedly, and he walks around aimlessly throughout the town of
1 Bratunac by himself.
2 One witness the Court purportedly relies upon is a gentleman by
3 the name of Simic, Ljubisa or Ljubomir Simic. And you can see in
4 footnote 4118 of the trial transcript [sic], he states that someone told
5 him that Ljubisa Beara was in the offices of the SDS. And he goes on to
6 say he was told later that it was probably Beara. Deronjic's testimony,
7 as unreliable as it is, he suggests that Simic was asleep so he wouldn't
9 We can't allow this purported corroborating testimony even for
10 the presence, the physical presence, of an accused or an individual when
11 it's solely given by unreliable and untrustworthy witnesses.
12 The Court also relies on PW-170, and that's on paragraph 1268.
13 It's glaring what the Court says about that Witness PW-170. In fact, it
14 concedes that PW-170 does not indicate Beara was at the meeting, but it's
15 using it as corroborating evidence. The logic utilised by the
16 Trial Chamber failed in many respects. It failed because I think the end
17 result was looked at respectfully and I think that they adopted,
18 unfortunately, the theory and themes of the Prosecution that quantity is
19 more important than quality.
20 We discussed briefly yesterday physical presence, we're turning
21 to 14th July, the evidence as to where Mr. Beara and his whereabouts on
22 the 14th July.
23 Egbers, one of the witnesses that was called and testified, and I
24 invited my colleague to give him the cites on it. Mr. Egbers, I stated,
25 was supposedly at a meeting where he was introduced to Mr. Beara and in
1 that meeting was an individual by the name of Zoran Malinic. And the
2 Chamber invited me to give you some cites in the record. If we look at
3 just the Trial Chamber's judgement, paragraph 1220, as well as
4 paragraph 1260 specifically states that Zoran Malinic and an interpreter
5 were present during this encounter purportedly with Mr. Beara and Egbers.
6 Likewise, the opening statement of the OTP on the 21st of August, 2006,
7 they clearly start on page 41 -- or 411, lines 24 through 25, and
8 continuing on the next page, 415 -- 412, I'm sorry, 412, lines 1
9 through 5, that the OTP suggests that on or about July 13/14, although
10 it's confirmed now it was the 14th, DutchBat Lieutenant-Colonel or
11 soldier Vincent Egbers was in Nova Kasaba and the commander Malinic -
12 although they misspelled it in the transcript, they have it Malonic, but
13 I don't believe we have a dispute on that - introduce Beara: Here is my
15 Further to the evidence that this conversation was not simply
16 one-on-one was the transcript of the testimony of Vincent Egbers on the
17 19th of October, 2006, where he clearly states that he was with
18 Zoran Malinic at Nova Kasaba for two days, like -- and that was on
19 page 2818 and also on page 2855, the following day, October 20th. This
20 is what Egbers says:
21 "... I'd never ever heard of Colonel Beara, his existence" --
22 THE APPELLANT POPOVIC: [Interpretation] Your Honours.
23 JUDGE ROBINSON: Yes.
24 THE APPELLANT POPOVIC: [Interpretation] I must use the toilet, if
25 I may.
1 JUDGE ROBINSON: Yes. Well, it's five past. We'll take the
2 break now for 20 minutes.
3 --- Recess taken at 11.05 a.m.
4 --- On resuming at 11.28 a.m.
5 JUDGE ROBINSON: Yes, Mr. Ostojic.
6 MR. OSTOJIC: Thank you, Your Honour.
7 Before the immediate break I was just going to conclude the
8 evidence with respect to Mr. Egbers and my comments yesterday. Egbers,
9 on October 20th, 2006, in his testimony on page 2855, lines 17 through
10 22, he states he's never heard of Beara. He's never heard of his
11 existence. And he was there with the interpreter and Zoran Malinic and
12 they told him about Colonel Beara.
13 The point of all this is the Prosecution makes a lot of claims
14 with respect to Mr. Beara's presence in or around the area of Bratunac
15 and Zvornik. So his presence is important. But present or not, you can
16 still have culpability in a crime. Obviously we understand just
17 peripherally that Karadzic wasn't in Bratunac or Zvornik and he's charged
18 with similar crimes. So presence is important but not as important as
19 the Prosecution would like us to believe. Nevertheless, when they allege
20 and assert that that presence is an indicator or a great factor that
21 should be applied, they're required under the law, under the
22 jurisprudence in this court, to corroborate that evidence.
23 I suggested yesterday that the burden of proof clearly falls on
24 them with respect to Mr. Egbers and whether or not Beara was at
25 Nova Kasaba on the 14th of July, 1995. They had access to and were
1 responsible and were duty-bound to present corroborating evidence. If
2 Mr. Beara was there, why didn't the Prosecution call Zoran Malinic? If
3 Beara was at Nova Kasaba on the 14th of July, why didn't they call
4 Egbers' own interpreter? If Ljubisa Beara was really there on the
5 14th of July, 1995, why didn't they call any other DutchBat who was with
6 Mr. Egbers? There were at least six or eight of them. Each one of those
7 individuals surely would have remembered Mr. Beara or could have given
8 testimony. The inference, I believe, that the Trial Chamber erred in
9 making is that Mr. Beara was not there. The Trial Chamber should have
10 inferred with uncorroborated testimony that Mr. Beara was not present at
11 Nova Kasaba on the 14th of July, 1995.
12 Interestingly, I think if we look at a dissenting opinion in
13 Tolimir case, which is a public record, Mr. Egbers' credibility is
14 questioned, rightfully so. His demeanour was questioned at that trial,
15 his recollection was questioned. One honourable Judge in another case
16 suggested that Mr. Egbers' testimony should also be given no weight and
17 gave it no weight just like she gave no weight to Momir Nikolic and/or
18 other individuals and accused who gave testimony in that case. I suggest
19 the same be done here. Accepting Egbers' view, accepting Egbers'
20 testimony was erroneous. It invalidates the judgement as it relates to
21 Mr. Beara so far as physical presence, of him being present, is
22 considered as being a significant factor.
23 I'm only highlighting some of the evidence. Certainly other
24 people -- and we've questioned their identification of Beara, but to move
25 on to the next day, the 15th of July, 1995, the Trial Chamber again
1 uniquely, unseen, in my view, respectfully, in other cases, it utilises
2 and examines the testimony of a Witness PW-165. That can be found in the
3 trial judgement at 1227 and 1228. The claim with respect to PW-165 was
4 Beara's presence with Popovic at the Standard barracks purportedly at
5 6.30 p.m. on July 15th. I don't know if you've read it and just indulge
6 me so I can just share it. The trial record in analysing that evidence
7 found that this PW-165 did indeed identify another accused in this case,
8 but it states as it relates to Mr. Beara at 1228:
9 "The Trial Chamber has previously found that PW-165's subsequent
10 identification of Popovic as one of the men that he saw, combined with
11 the evidence of what he was told, was sufficient to satisfy the
12 Trial Chamber that Popovic was present ..."
13 It goes on to say:
14 "This is not the same in the case of Beara, as PW-165 did not see
15 him at the time other than from the back and he was not able to
16 subsequently identify him, thus PW-165 does not directly identify Beara
17 as having been present ..."
18 So far we're probably all respectfully in agreement with that.
19 The Trial Chamber unfortunately and regrettably went further and erred as
20 it found on that same paragraph.
21 "However, the fact remains that PW-165 was told that this was
22 Beara and Popovic, and that information was confirmed in part by the
23 subsequent identification of Popovic ..."
24 We're talking about in this paragraph Beara's identification, but
25 the Trial Chamber's convinced that Popovic is there, right or wrong. But
1 they're utilising the identification of Popovic to try to suggest that
2 that means that Beara was there even though this gentleman did not see
3 Beara at all and the Trial Chamber recognises that.
4 They go on further and their reasoning is what we're questioning
5 and what we've appealed here:
6 "When considered in combination with other evidence, especially
7 as to Beara's presence in the area at the time, the Trial Chamber is
8 satisfied that Beara was present with Popovic at the Standard Barracks in
9 the early evening of 15 July 1995."
10 They're satisfied? Did they meet what's required, that there was
11 no reasonable doubt that Beara was there? If it's as critical as the
12 Prosecution has stated it was and has indicated as it is, his physical
13 presence at all these sites, the Trial Chamber says it's true, he didn't
14 identify Beara; but because he identified Popovic, it's good enough for
15 now. No corroboration, no explanation that I respectfully believe is
16 reasoned with respect to this and other witnesses.
17 All this goes to the Court's -- Trial Chamber's finding of
18 special intent. At paragraph 1318 of its trial judgement, it highlights
19 certain factors that it considered and considered to be decisive in
20 finding that Ljubisa Beara had special intent. 1318, they rely on his
21 words, words that he create -- or words that Mr. Beara purportedly made
22 to whom, the Deronjic evidence, the unreliable, uncorroborated evidence,
23 his demonstrated determination to kill as many as possible. That's the
24 same quote they used when they cited and relied on solely the Deronjic
25 evidence, pursuant to his instructions, as if Mr. Beara was giving
1 instructions to Deronjic, again relying on the Deronjic evidence.
2 It does list other acts, it does state that you look at the scale
3 and scope of the killing operation that was carried out with his
4 knowledge, but I suggest to you that if he was not present and he did not
5 utilise those words, what evidence would there be as it relates to
6 Ljubisa Beara? Scant at best.
7 The Trial Chamber erred and failed to distinguish between words,
8 physical presence, and actions, and instead they took the approach of
9 quantitative instead of qualitative evidence. I suggest, respectfully,
10 that in analysing Mr. Ljubisa Beara, that we carefully scrutinise each
11 and every instance when his conduct or his actions may lead to a
12 conviction. That is the only way that Mr. Beara can be afforded a
13 guarantee of a fair trial. I respectfully submit that the Trial Chamber
14 erred and the judgement should be invalidated.
15 If I may now turn in the interest of time to the question this
16 Chamber has asked me with respect to Jadar River and Trnovo. In our
17 view, respectfully, the Trial Chamber did not properly assess and
18 identify whether the physical perpetrators of the crimes committed were
19 members of the JCE. There is jurisprudence that suggests that there must
20 be a link, and I believe the link is necessary in order to convict an
21 individual for crimes that were committed by others outside of the JCE.
22 The Brdjanin Appeals Chamber suggests at pages -- at paragraphs 412 and
24 "The existence of this link is a matter to be assessed on a
25 case-by-case basis."
1 This was not done by the Trial Chamber below. However, it seems
2 that this may be co-perpetration -- strike that.
3 Nevertheless, the Court also looked at the Appellate Chamber's
4 decision in Martic and held that the Trial Chamber failed to make an
5 explicit finding in how members of the JCE used physical perpetrators,
6 paragraph 181. Perpetrators in those cases were identified as having
7 been used as tools, tools implying a high degree of control over those
8 perpetrators who committed those crimes. I believe the dissenting
9 opinion by Judge Kwon addresses the Trnovo issue, but likewise, I think
10 the issue with respect to Jadar River as well as other instances applied
11 to Mr. Beara but it should not be -- a conviction should not be held on
13 Finally another appeals judgement addresses the issue of linking
14 and the necessary link and that is the Krajisnik appellate judgement. In
15 Krajisnik, the Trial Chamber held that the establishment of a link
16 between the crime and member of the JCE is a matter to be assessed on a
17 case-by-case basis, at paragraph 235, and it reviewed the Trial Chamber's
18 finding to determine whether this link was established and whether the
19 perpetrators were used by the JCE members --
20 THE INTERPRETER: Could counsel please slow down.
21 MR. OSTOJIC: Thank you. I was hoping not to hear that. I've
22 heard it. Thank you. I apologise.
23 The Krajisnik Appeals Chamber did the right thing when they found
24 that they lacked the necessary link and they quashed Krajisnik's
25 convictions in relation to a number of crime scenes and crime sites. In
1 the instant case with respect to the Appellate Chamber's question on
2 Jadar River and Trnovo, we would like to expand it and suggest to the
3 Trial Chamber, if we accept that Ljubisa Beara was present at 8.00 p.m.
4 on July 13th in Bratunac, he joined purportedly the JCE that evening.
5 There's no evidence, as the Court stated in its trial decision, of his
6 direct participation prior to that. When did the Kravica murders happen?
7 That day earlier. The conviction with respect to the Kravica murders
8 should be quashed as well in our respectful submission.
9 I hope I've answered the question raised by the Trial Chamber
10 adequately enough. I'd like to turn, if I may, to just the next couple
11 of sections of our oral submissions, and we yesterday mentioned it's a
12 category that I've coined: Seeking the truth and exculpatory evidence.
13 We lump it together because we believe that if we get to the truth,
14 perhaps that truth will also be exculpatory to Mr. Beara. Indeed, I
15 believe that it is.
16 We'd like first to discuss, as we did orally yesterday, Exhibit
17 P886, and I've given it, I think -- if we could put it on the ELMO so
18 that everyone can see it. So we -- I'll just proceed and I think we can
19 catch up.
20 I invite this honourable Chamber to examine the evidence of the
21 trial record P886. It's important to note the date of this exhibit,
22 13th July, when the purported murder or the murder operation indeed
23 started and the killings started in Bratunac. Curiously, the drafter of
24 this memo or note was the chief of the centre of Zvornik public
25 security - it's up now - Dragomir Vasic.
1 The contents are chilling, indeed. He states, Mr. Vasic, who's
2 part of the Zvornik public sector security centre, totally different from
3 Ljubisa Beara and others, he states that he had a meeting with Mladic
4 that same day, 13th July 1995, and they were informed that the VRS was
5 continuing operations towards Zepa, leaving all other work to the MUP as
7 1, the evacuation process. 2 is the part that I believe is
8 chilling. He states:
9 "Killing of about 8.000 Muslim soldiers whom we blocked in the
10 woods near Konjevic Polje. Fighting is going on. This job is being done
11 solely by the MUP units ..." solely by the MUP units.
12 The Prosecution knows this witness. The Prosecution has
13 identified him in their case, and this witness, I believe without any
14 dispute, sat here for two and a half weeks and ultimately was withdrawn
15 as a witness in the underlying trial. What consideration did the
16 Trial Chamber give, if any, to Dragomir Vasic's report? Scant, if at
17 all. It was not interested to see if this was credible, reliable. It
18 did not look at this as exculpatory or truthful for some reason. Why
19 not? It's an admission. The Trial Chamber desperately reached on many
20 occasions to suggest that Ljubisa Beara's words in intercepts meant
21 something other than their plain text, but here we have a document that
22 plainly states, a document that this gentleman probably -- or this
23 person, I should say, never would have imagined would be found or
24 published. He clearly states: "MUP was solely responsible." And the
25 MUP units were doing this job solely. He identifies what job; no need to
2 The next document I would like to just share briefly with the
3 Chamber is 1D374, and 1D374 is a document we discussed briefly yesterday
4 and it's a report from the United Nations Sector Civil Affairs unit by a
5 gentleman by the name of Edward Joseph who drafted it. He testified in
6 our case here. I would just like to direct the Appellate Chamber's focus
7 on the second page of that document. I'm not sure if it's up yet.
8 Oh, thank you. I don't have it on mine. That's why I was
9 waiting. Thank you.
10 If the Court looks at the second page of that document, it states
11 under paragraph number 1, subsection 3 there with the dash, it states:
12 "Up to three thousand were killed on the way, mostly by mines and
13 BSA engagements ..."
14 It would seem at first blush to be distasteful to discuss the
15 killings, but if we're discussing the truth, we're by no way minimising
16 the heroic efforts of the Bosnian Muslims in trying to reach freedom or
17 trying to get to their homeland or trying to save their lives. But this
18 Trial Chamber is required to look at all the evidence. The Trial Court
19 and the Prosecution don't consider this evidence at all. We questioned
20 their military expert, Richard Butler, on this issue. His responses were
21 rather unique. He identified a term called "legitimate combat
22 engagements," and he said it's legal, it's justified, and it's
23 acceptable. We asked him if he reviewed or considered this document in
24 his analysis, he stated he did not. He didn't think there was a need to.
25 When we talk about numbers in this case, if it's significant
1 whether it's a thousand, which is a horrific number, much less 5.000 or
2 greater, one is unacceptable. But if we're going to create history and
3 if we're going to establish historically what had occurred, this document
4 should at the very least be given some consideration. Dismiss it. That
5 would be acceptable as long as it's a reasoned opinion. If this Court
6 finds that there was no legitimate combat engagements and that no one had
7 died during the attack on Srebrenica and that all the dead were a result
8 of a murderous operation, so be it. But I suggest to this Appellate
9 Chamber, that's not the case, that the evidence is clear, it's reliable,
10 it's corroborated, and it shows that 3.000 were killed as a result of
11 mines and legitimate combat engagements, as Butler suggested.
12 I have Butler's page number, if necessary, to look at his
13 testimony. I invite the Appellate Chamber to look at pages 20.244,
14 that's 20244, as well as 20245, among other references.
15 We discussed this exhibit specifically with him on page 20290 and
16 20291, where Butler acknowledges that this document was not considered at
17 all by him or any other member of his investigative team.
18 The Trial Chamber had spent some time in analysing the intercepts
19 and what Mr. Beara had said. They also discussed the intercept that we
20 thought was plain, should be accepted as reliable, and that is the
21 Exhibit 7D2D64 [sic].
22 The Trial Chamber -- and I'm trying to just get -- we get that up
23 for you.
24 The Trial Chamber addresses that exhibit in its judgement, and
25 surprisingly it finds that it's not reliable because they claim that
1 Mr. Beara knew he was being listened to. So Mr. Beara would have
2 supposedly - and I know it seems speculative and I suggest that it is
3 nothing but speculation - would have put out this type of intercept in
4 order to somehow minimise his involvement. However, they don't use that
5 same logic when they use intercept evidence against Mr. Beara and when
6 they read-in what certain words mean in an intercept.
7 This Exhibit 7D2D64 clearly states and establishes what the
8 intent and mind-set of Mr. Ljubisa Beara was on 13 July 1995. He had at
9 all times and was at all times only interested in the prisoners getting
10 safe passage to the Batkovici camp, where they at that time would have
11 interviewed, as all POWs are. This exhibit, I believe, is credible, it
12 was not, again, created. It was an intercept that the Prosecution, in
13 their quantitative amount of evidence they provide, and it was a Croat
14 intercept, a third party provided this intercept. This intercept was not
15 considered at all by the Trial Chamber as to Mr. Beara's participation in
16 a joint criminal enterprise or as to his specific intent for the crime of
17 genocide. I suggest that the Trial Chamber erred when it failed to give
18 the proper weight to this evidence, and therefore its judgement is simply
19 wrong and should be invalidated.
20 I would like to address now just briefly the issues with --
21 relating to sentencing. We suggest that the Trial Chamber failed as a
22 matter of law to apply and reduce the sentence, after recognising and
23 accepting certain mitigating factors as being established and being
24 reasonable. We brought evidence in the Defence case of Mr. Beara's good
25 character, decent family, his actions of how he helped people prior and
1 during the war of 1992 through 1995. We brought people of different
2 ethnic backgrounds, which established that he assisted not only
3 Bosnian Muslims, not only Croats, but also the Jewish community in
4 Croatia while he was there. The Court found that he did have good
5 character; however, it also found that they should give only limited
6 weight to that. I suggest the Trial Chamber was wrong in giving limited
7 weight to his good character.
8 Ljubisa Beara surrendered to this Tribunal, one of the first to
9 surrender. During the time when he pled, he urged others who were
10 indicted to come forward and they slowly did. In fact, within six months
11 four other individuals came forward. The Trial Chamber recognised that
12 his surrender was a mitigating factor, rightfully so, but again it gave
13 it limited weight.
14 I say the next mitigating factor with respect to Mr. Beara, it's
15 his age. We suggest that he's an advanced age and again we say it most
16 respectfully. The Court said that they'll give some minimal weight to
18 We also suggested as a mitigating factor that the Trial Chamber
19 should examine the OTP's inconsistent theories of culpability and modes
20 of liability as it related to Mr. Beara. At the opening of the
21 underlying trial in this case, we played a tape of the OTP's -- not just
22 suggestion, but their comment that Ljubisa Beara was "an empty vessel."
23 The Trial Chamber addresses that and it believes that it has no
24 importance. We believe that it has great importance, not just in
25 sentencing but in the underlying aspects of culpability for Mr. Beara.
1 If this Prosecution and the same gentleman in one case claims that
2 Mr. Beara was an empty vessel and was not directly involved in any of the
3 crimes by virtue of implication of using those words, how could this
4 Prosecution in another case claim that he has direct and whole
5 responsibility for those heinous crimes that occurred? It is our
6 respectful submission that if mitigating evidence exists and if it's
7 recognised and accepted by the Trial Chamber, then the sentence should
8 be, indeed must be, reduced. Mr. Beara received the harshest sentence
9 available: Life. No amount was reduced because of mitigating
11 The Trial Chamber further abused its discretion and erred when it
12 failed to grant proper weight to the mitigating evidence. It failed to
13 give the adequate amount of weight necessary for all those and other
14 factors. The Trial Chamber further erred in its aggravation analysis.
15 Respectfully, it should have looked at conduct for aggravation prior to,
16 ancillary, or subsequent to the crimes that were charged to determine if
17 a person has aggravating factors that should require or result in a
18 greater punishment. There was no evidence other than good, decent
19 character of Mr. Beara prior to or afterwards.
20 I could understand an aggravating factor of a person's conduct to
21 be utilised in aggravation to increase a sentence if his prior or
22 subsequent conduct was considered immoral, perhaps illegal, perhaps even
23 criminal. In this case, the Trial Chamber utilised the same underlying
24 conviction, the same underlying purported crimes committed by Mr. Beara,
25 and said: That's the reason we're going to sentence him and we found
1 that there's aggravation. I suggest that that should not and is not the
2 law of this jurisprudence.
3 Utilising the same crimes for aggravation is cumulative, it's
4 unnecessary, and it's a violation of the decision authority of this
6 We'd overall suggest, Your Honours, that Mr. Beara was not
7 present during the times alleged, but more importantly, we assert that
8 the evidence when scrutinised carefully is not corroborated that he used
9 words which would justify him being a member and/or significantly
10 contributing to the joint enterprise of murder, and most definitely his
11 words did not constitute a finding that he had special intent for the
12 crime of genocide. The Trial Chamber, in essence, merely utilises the
13 evidence that they found erroneously of discriminatory intent and
14 essentially just utilises that evidence in the other counts that were
15 alleged against Mr. Beara for discriminatory intent, for crimes against
16 humanity, et cetera.
17 We believe that if we scrutinise the record carefully and examine
18 and find that there was no corroborating evidence, that a just verdict
19 can be entered in favour of Mr. Beara, whatever that may be. But as it
20 stands now with these errors, we believe that there has been a
21 miscarriage of justice.
22 Thank you very much.
23 JUDGE ROBINSON: Thank you very much.
24 [Appeals Chamber confers]
25 JUDGE ROBINSON: We'll hear from the Prosecutor.
1 MR. ROGERS: Your Honours, yes. Mr. Gillett will be making the
2 majority of the submissions in this case, my colleague who sits behind
3 me. So we'll swap over and he can continue and begin those submissions.
4 JUDGE ROBINSON: Certainly. I know you will want to address
5 Mr. Sepenuk's point.
6 MR. ROGERS: Sorry, Your Honour, I didn't hear -- yes. Yes,
7 Mr. Gillett will deal with all those issues raised by Mr. Sepenuk and
8 also by my learned friend Mr. Ostojic, and I will deal with the question
9 at the conclusion, but he is prepared to deal with all of those matters.
10 JUDGE ROBINSON: Thank you.
11 MR. GILLETT: Mr. President, Your Honours, may it please the
12 Court. As mentioned, my name is Matthew Gillett, and I'll present the
13 arguments in response to the bulk of Mr. Beara's submissions in his brief
14 and that you've heard yesterday and today.
15 Your Honours, in July 1995, the Bosnian Serb forces
16 systematically murdered thousands of Bosnian Muslim men and boys from the
17 Srebrenica enclave. The Chamber held that Ljubisa Beara was instrumental
18 in the planning and implementation of this mass murder. He was rightly
19 convicted for his crimes, including extermination and genocide, and he
20 was sentenced to the only appropriate sentence: Life imprisonment. In
21 his appeal, Beara challenges almost every finding against him. He claims
22 he was not in the Bratunac and Zvornik areas on 13 and 14 July 1995, and
23 you've just heard that from his counsel at transcript page 40, he's
24 maintained that Beara was not present.
25 As you'll hear, that is incorrect, and that's incorrect on the
1 basis of a variety of sources of evidence, independent sources,
2 intercepted conversations, documents, and witnesses from various
3 backgrounds --
4 THE INTERPRETER: The counsel is kindly asked to slow down for
5 the purposes of interpretation into B/C/S. Thank you very much.
6 MR. GILLETT: Apologies.
7 Your Honours, Mr. Beara claims that even if his alibi is false
8 and he was in these areas, he did not participate in the murder
9 operation. And then, failing that, he argues that even if he was
10 involved, heavily implicated in the murder of thousands of men and boys,
11 he should not have received a life sentence. Each and every one of his
12 arguments is flawed and his appeal should be rejected in its entirety.
13 Now, in my submissions, I'll first set out Beara's key
14 activities, his involvement in the murder operation. In the second part,
15 I'll address some of my learned friends' challenges to the reliability of
16 the evidence that the Chamber considered in reaching its findings. And
17 then in the third part, I'll address the arguments concerning the JCE
18 liability, joint criminal enterprise liability, and his conviction for
19 genocide. And I will address specifically the arguments you've heard
20 this morning.
21 Given the time constraints, we will not be able to address every
22 single one of his arguments, but we maintain our position in the
23 Prosecution response brief.
24 At the outset, I have to clear up some misstatements and
25 misconceptions that I've heard during the Defence arguments and that are
1 present in its brief and in its reply. For example, at paragraph 341 of
2 his brief, Beara argues:
3 "The Chamber erred when it found that willing participation of
4 the accused constitutes an aggravating factor ..." and he refers to
5 paragraph 2154 of the judgement. He's repeated more or less the same
6 argument today.
7 If you actually look at paragraph 2154 of the judgement, you'll
8 see the Chamber found the exact opposite. It said that his willing
9 participation was not an aggravating factor because it had already been
10 taken into account. So it's simply not a fair reading of the trial
11 judgement that is being presented to you.
12 Secondly, there is a clear misunderstanding of the law that has
13 been presented to you, the law that applies at this Tribunal. You've
14 heard the Defence claim that the witness Vincent Egbers, who is a Dutch
15 Battalion officer, should not have been received without corroboration,
16 and that's at transcript page 28. They've said that the Office of the
17 Prosecutor had a duty to present corroboration for this witness. This is
18 fundamentally incorrect. It's well-established jurisprudence that the
19 testimony of a single witness - and Egbers did testify - on a material
20 fact does not require corroboration. That's in the Tadic appeal
21 judgement, paragraph 65; Aleksovski, paragraph 62; and the Kayishema
22 appeal judgement, paragraph 154.
23 Beara's arguments about Egbers simply repeat his trial
24 submissions. The Chamber took these into account and addressed them in
25 detail. This is an area for the Trial Chamber's discretion to assess.
1 Egbers was introduced to Beara by name, and in fact the day after the
2 meeting, 15 July, he noted down that he had indeed met Colonel Beara the
3 previous day. This is an entirely reasonable basis for the Chamber to
4 rely on his evidence and the Defence fails to show any error therein.
5 Third, the Defence has completely ignored the Rules of Procedure
6 and Evidence that apply at this Tribunal. They've attempted to sneak the
7 evidence of the driver, Milos Tomovic, in through the back door and
8 they've attempted to get that on the record in yesterday's transcript at
9 page 101. If the Defence wanted this evidence, they should have called
10 him as a witness and let him be subjected to cross-examination, and then
11 we could have evaluated the weight of his evidence. They chose not to do
12 so. And he was on the Defence list, you can see that at transcript
13 page 31967.
14 The Defence is highly misleading in yesterday's transcript when
15 it said that an OTP investigator said Beara was in Belgrade on 13 to
16 15 July. This is untrue and they know it. What you've got is a
17 misstatement of a document that is not even in evidence being presented
18 to you. It is simply not worth your time to consider this argument. It
19 can be summarily dismissed - I'm not sure which category, it would
20 probably fit every category for summary dismissal.
21 Similarly, the Defence arguments referring to Malinic are a red
22 herring. He didn't testify; that's the end of the story. It's not
23 evidence. You've heard the Defence refer to document 1D374 just
24 previously, this is a report, they said the Chamber did not consider
25 this. Again, incorrect. Footnote 2256 clearly shows that the Chamber
1 did consider this. The report is vague, has very general numbers, and if
2 you actually look in detail, it's notable that it leaves, if you do the
3 maths, 6.000 Bosnian Muslims unaccounted for. That's quite close to the
4 number that were, in fact, murdered during this killing operation. So
5 there's nothing inconsistent about this document with the findings and
6 it's certainly not a document that would have any impact on the findings.
7 Now, Your Honours, these are just simply some examples to
8 emphasise that you are going to have to take the Defence arguments with a
9 grain of salt.
10 You're also going to have to address the fact that the Defence
11 arguments concerning genocide that have been raised this morning are a
12 radical departure from its written brief. They are simply not contained
13 in there. In fact, the Defence brief argues the opposite. Today they've
14 said the Trial Chamber diverged from the Krstic Appeals Chamber's
15 findings. In their brief, if you look at paragraph 221, you'll see that
16 they say the Trial Chamber erred because it simply followed the Krstic
17 appeal judgement. Which way is it? These two arguments are not
19 Now, Your Honours, I will address the arguments that have been
20 made, but they are an ambush and we may need to request extra time later
21 in this hearing, upon reviewing the transcript, to see whether all the
22 arguments have been covered.
23 With these caveats in mind, I'll now turn to address Mr. Beara's
24 activities --
25 JUDGE ROBINSON: I'm sorry, what do you mean by reviewing the
1 transcript to see whether all the arguments have been covered?
2 MR. GILLETT: Well, we've heard these arguments for the first
3 time this morning; they're not contained in the brief. So we would
4 respectfully reserve the right to read the transcript at the end of
5 today's hearing and check whether everything has been covered
6 sufficiently because I am taken off guard and I am going to have to
7 address these on the fly --
8 JUDGE ROBINSON: Okay. And if you find that they have not been
9 covered, what would be your next step?
10 MR. GILLETT: We would make an application, and it would be for
11 Your Honours to determine whether or not there was a sufficient basis.
12 But we will cross that bridge when we come to it.
13 Your Honours, with these caveats in mind, I will now set out some
14 of Beara's key movements and activities in the killing operation, and
15 I'll use some slides to do so.
16 On the monitor we see a map of this area, of Bratunac and
17 Zvornik, and I'll just check that Your Honours can all see that map.
18 I see the time, Mr. President and Your Honours, and if you'd like
19 to break before I enter this next section of my submissions -- otherwise,
20 I can continue on.
21 JUDGE ROBINSON: Yes, we'll take the break. The break is for
22 one hour and 30 minutes.
23 --- Luncheon recess taken at 12.12 p.m.
24 --- On resuming at 1.46 p.m.
25 JUDGE ROBINSON: Yes, Mr. Gillett.
1 MR. GILLETT: Thank you very much, Mr. President, Your Honours.
2 Before I resume my submissions, I'll just say that during the
3 lunch hour we've reviewed the transcripts and extra time will not be
4 necessary. I'm confident you'll be glad to hear.
5 I'll now presume -- I'll now resume with where I left off.
6 Your Honours, on the monitors in front of you, you should see a
7 map, this is Exhibit P2110, and this is a map of the areas where the
8 murder operation was carried out. This can be found at the end of
9 volume 2 of the judgement.
10 In the lower right corner you see Srebrenica. I've highlighted
11 it with a box. Above that you can see Bratunac, which I've also
12 highlighted with a box. If you continue up the road beside the river
13 Drina, about halfway up the screen you'll see Zvornik, which is also
14 surrounded by a box. And these are the key areas where Beara was active
15 during the murder operation. Your Honours, Beara has claimed an alibi
16 during this period. This could not be further from the truth. In
17 reality, he was ubiquitous during the formation and implementation of the
18 murder operation, and that's found -- that's noted at paragraphs 1300 and
19 1318 of the judgement.
20 The following are a very small range of examples of his relevant
21 activities and locations during these times.
22 Firstly, on 11 July, Beara was at the Drina Corps forward command
23 post - this is on the next slide - in Pribicevac, just south of
24 Srebrenica. He was there with fellow JCE member Vujadin Popovic and they
25 reported to Radislav Krstic. If we move to the next slide, you'll see
1 that on 12th July he was seen in the centre of Bratunac with
2 Miroslav Deronjic. On the morning of that same day, 12th July, Popovic
3 and Momir Nikolic had been in the centre of Bratunac, the same town,
4 discussing the murder operation, as set out at paragraph 280 of the
5 judgement. On 13 July, on the next slide, as the prisoners poured into
6 Bratunac and as the larger killings began to occur, Beara's activities
8 For example, that evening he met Momir Nikolic in the centre of
9 Bratunac and he sent him up to Zvornik to tell Drago Nikolic that the
10 prisoners would be sent there to be killed. That same evening he met at
11 the SDS offices in Bratunac with people, including Miroslav Deronjic, to
12 discuss the murder operation. Beara and Deronjic argued, as found by the
13 Chamber, the issue was not whether to kill the prisoners; the issue was
14 where to kill the prisoners. And that's noted at paragraph 1060.
15 Beara has claimed that the Chamber's findings in this regard are
16 based solely on the evidence of Deronjic. This is incorrect. At the
17 outset, in response to his challenges to the credibility and reliability
18 of Deronjic's evidence, I should note that that has been confirmed at the
19 appellate level, as you'll be aware, the admission of Deronjic's
21 Furthermore, in disputing this finding by the Trial Chamber,
22 Beara ignores that there are multiple witnesses and other materials
23 corroborating the Chamber's findings. These include Momir Nikolic,
24 PW-161, PW-170, the accused Borovcanin, and others. And these are set
25 out in paragraphs 1264 to 1270 of the judgement.
1 For example, Momir Nikolic testified that, on this evening, he
2 observed Beara and Deronjic at the SDS office in Bratunac. He noted that
3 they were arguing and they were arguing about where to carry out the
4 murder operation. That's in the judgement at paragraphs 1266 to 1270.
5 PW-161 also testified about meetings at these same SDS offices,
6 where the killing of prisoners and the burial was discussed. The subject
7 of the meetings that PW-161 was involved in was the burial of the
8 prisoners murdered at Kravica. And that's set out at paragraphs 438 and
9 1267 to 1268 of the judgement. And PW-161 confirmed that Beara was
10 present at these meetings. PW-161 knew Beara prior to this occasion so
11 he could recognise him at this time.
12 At today's hearing, Beara has argued and focused on the
13 discrepancies in the "specifics" of the witnesses' accounts of these
14 meetings on the evening of 13 July in Bratunac. However, the Chamber
15 expressly took these into account at footnote 4167. It's unsurprising
16 that the different witnesses have differences as to what they
17 specifically observed. As Deronjic himself stated, people were coming
18 and going at the time during these discussions on the evening of 13 July.
19 And that's in P3139 at transcript page 6448.
20 In making in his arguments, Beara also misunderstands the concept
21 of corroboration. It's well established that testimonies do not need to
22 be exactly identical in order to corroborate each other. The key is that
23 they lend probative weight to the other piece of evidence, and that can
24 be found, for example, in Munyakazi appeal judgement, paragraph 103, and
25 in the Mrksic appeal judgement at paragraph 125. And the assessment of
1 corroboration is a factor falling squarely within the discretion of the
2 Trial Chamber, and that's in the Limaj appeal judgement, paragraph 203.
3 Beara's focus on the specific details of these meetings ignores the
4 common thread running through these witnesses' evidence, which is that
5 there was a series of meetings at the SDS offices that Beara was present
6 at and involved in to discuss the murder operation.
7 Moreover, Beara's activities that evening fit with his following
8 movements the next day. For example, on 14 July, as you see in the next
9 slide, he met with Popovic and Drago Nikolic at the Standard barracks,
10 and as found by the Chamber, they met to discuss the murder operation.
11 That same day, Beara went to Grbavci school in Orahovac which is also
12 near Zvornik. At the time, many hundreds of prisoners had been brought
13 to the school on the night before and on 14 July and were detained in
14 horrific conditions. The prisoners were then murdered a short distance
15 from the school.
16 Again on 14 July, Beara was at Petkovci, another location near
17 Zvornik. He was there overseeing the detention, transport, execution,
18 and burial of over 800 prisoners. That's paragraph 1279 of the
20 On 15 July, Beara continued to drive forward the murder
21 operation. At 10.00 a.m. he was recorded calling Radislav Krstic, who
22 was the commander of the Drina Corps, and asking for more soldiers to
23 assist with the murder operation. He used a euphemistic code, referring
24 to parcels that had to be distributed. The Chamber found that this
25 conversation concerned troops to assist with the killing operation.
1 This next slide contains an excerpt from the intercepted
2 conversation; this is P1179. The speaker designated with a B is Beara.
3 He explains his exasperation at not receiving the additional troops that
4 he needed. He then made a telling statement which I've highlighted with
5 a box. He says:
6 "I don't know what to do. I mean it, Krle. There are still some
7 3.500 'parcels' that I have to distribute and I have no solution."
8 Now, Beara disputes the authenticity of this intercept; however,
9 it was authenticated by three separate intercept operators who all
10 identified Beara and Krstic as the participants, as set out at
11 paragraph 1236.
12 On the next slide you can see that the same day as this
13 conversation was intercepted and he was recorded talking about
14 distributing over 3.000 prisoners, there were indeed somewhere between
15 2- and 3.000 prisoners detained at nearby locations, at the Rocevic and
16 Kula and the Pilica cultural centre. As the Chamber noted in
17 paragraphs 504 to 550, these prisoners were indeed executed that day and
18 in the following days.
19 On 16 July, the day after he had called for more troops to assist
20 with the killing operation, he personally went to Kula school where
21 hundreds of prisoners were detained. They were taken to nearby Branjevo
22 Farm and executed.
23 Now, there are a few points that become immediately apparent from
24 this slide show. The first is that Beara's alibi is untrue. This
25 evidence supporting these findings, as I've mentioned, comes from a
1 variety of sources and was validly assessed by the Trial Chamber.
2 The second point, which is quite important, is the slides show
3 how his movements shadow the killings as they begin down in Bratunac and
4 as they move north up to Zvornik. This reflects his central role in
5 organising and implementing the killing operation.
6 Third, it's significant that he's present at these detention
7 locations because the conditions there were appalling. The heat was
8 stifling for the prisoners, the rooms were overcrowded, and frequent
9 beatings occurred. In many instances, prisoners were killed right there
10 at these various detention locations. Beara's callous disregard for the
11 suffering of these Bosnian Muslim prisoners in these conditions and his
12 relentless focus on killing as many of them as possible as quickly as
13 possible are confirmation of his murderous and genocidal intent.
14 I'll now turn to address some of his challenges to the
15 reliability of the evidence against him. Very briefly, it's necessary to
16 note a couple of words about the appellate standards at this stage.
17 When you review his submissions, you'll see that almost all of
18 them were raised at trial. This ignores the relevant jurisprudence,
19 which holds that an appeal is not an opportunity for a trial de novo.
20 Your Honours, in relation to the numerous witnesses that
21 identified Beara during this period, he argues, firstly, that the
22 witnesses' identifications are flawed; and secondly, that many of the
23 witnesses colluded together to falsely implicate him in these events.
24 Turning first to his identification arguments, and these are
25 contained in ground 10 of his brief. The Trial Chamber set out the
1 appropriate standards in the judgement for assessing identification
2 evidence at paragraph 55, and it analysed the identification evidence and
3 his arguments in detail at paragraphs 1219 to 1229. His arguments amount
4 to mere disagreements of the Trial Chamber's assessments. His arguments
5 are erroneous. Many of the witnesses knew Beara and were able to
6 recognise him, these include PW-161, Milorad Bircakovic,
7 Miroslav Deronjic, and Momir Nikolic, for example. Other witnesses were
8 introduced to him by name, such as Egbers who I've mentioned, PW-162,
9 PW-104, and PW-165.
10 Beara was an extremely high-level figure in the VRS. He was the
11 head of the security administration, he had the rank of colonel. He's a
12 distinctive-looking individual. The idea that somebody was walking
13 around masquerading as Colonel Beara at meetings with local officials in
14 various places is simply untenable.
15 Moving to his second argument concerning witness collusion. In
16 ground 5 he names a group of local officials that he claims conspired
17 against him, these include Deronjic, PW-161, PW-162, Ljubisav Simic, and
18 Zlatan Celanovic. These arguments are a direct repeat of his trial
19 arguments, as you'll see, for example, at para 164 of his brief, and the
20 Chamber addressed these in detail. As the Chamber found, there was no
21 basis for his claims and the testimony of these witnesses does not
22 suggest falsification.
23 Fundamentally, he conflates two things. He conflates the fact
24 that some of these witnesses knew each other and talked to each other
25 with the contention that they actually falsely created their evidence to
1 implicate him. Moreover, his arguments are self-contradictory. He
2 includes Zlatan Celanovic as one of the members of this supposed
3 conspiracy against him; however, later in his brief, he argues that
4 Celanovic's evidence is, in fact, exculpatory. You can see that, for
5 instance, at paragraph 111. This is inconsistent.
6 He also argues that there was a separate conspiracy against him
7 amongst VRS witnesses, Ostoja Stanisic and Marko Milosevic, who both gave
8 evidence concerning his presence at the Petkovci school on 14 July. The
9 Chamber addressed these arguments in detail and found that these
10 witnesses were straightforward in their answers. He shows no reason to
11 interfere with the Trial Chamber's reasonable exercise of its discretion.
12 And as a final point and a very important one in relation to his
13 identification arguments and his witness collusion arguments which are at
14 the core of his appeal, it's important to note that the corroborating
15 evidence comes from a variety of sources. For example, there's the
16 Zvornik Brigade duty officer notebook. As set out at paragraph 1276 of
17 the judgement, it records on 14 July:
18 "Colonel Beara is coming in (the following) order to Orovoc,"
19 namely, Orahovac, "Petkovci, Rocevic, Pilica."
20 The Defence haven't mentioned that today or yesterday, but this
21 is a telling entry in a separate document. 14 July is right during the
22 midst of the large-scale killings, and these are four of the locations
23 where those killings occurred.
24 Your Honours, there's also the intercepts and I've mentioned one
25 of them already. They were recorded contemporaneously but they continue
1 to speak loud and clear as to his murderous and genocidal intent. The
2 Chamber took these into account and validly assessed their weight.
3 Your Honours, the trial -- Beara fails to show any error in the
4 Trial Chamber's assessment of the reliability of the evidence against
6 With those statements in mind, I'll now turn to his arguments
7 concerning the joint criminal enterprise findings and the genocide
9 Looking first to the joint criminal enterprise findings, the
10 Chamber found that Beara was a driving force behind the murder operation
11 to kill the Bosnian Muslim men and boys from Srebrenica. It held that
12 the murder operation implicated personnel and units from the Main Staff
13 of the VRS through to the corps and the brigade level, and that the
14 security branch, of which Beara was the head of the security
15 administration, played a heavy hand throughout.
16 The evidence shows that he made multiple contributions to the
17 joint criminal enterprise. As I've already outlined, he identified
18 locations to implement the murder plan, he secured personnel and
19 equipment for the killings and burials, he oversaw the execution at
20 individual killing sites, and he co-ordinated with other participants in
21 the killing operation, including Popovic and Drago Nikolic. He was
22 omnipresent, in the words of the Chamber, throughout the scenes of the
23 mass killings; that's paragraph 1300.
24 Beara disputes these joint criminal enterprise findings by
25 essentially repeating his trial arguments and seeking to re-interpret the
1 Chamber's findings on the evidence. Rather than addressing all of his
2 arguments, I'll focus on three that arise repeatedly throughout his brief
3 and he's touched on in his oral arguments.
4 First, he argues that the Chamber erred in concluding that he was
5 involved in the murder operation from 12th July. He contends that this
6 was an inference and that the Chamber failed to provide reasons for it.
7 For instance, you can find that at paragraph 178 of his brief. In this
8 respect, his arguments are misconceived.
9 First, it's well-established that a Trial Chamber can reach an
10 inferential finding as long as it is the only reasonable possibility on
11 the basis of the evidence; and second, the Trial Chamber provided its
12 reasons for exactly why this was the case.
13 It explained that on the morning of 12th of July, Popovic, who
14 was subordinate to Beara in the security branch, was discussing the
15 murder operation in Bratunac. And as I mentioned, Beara was in Bratunac
16 that same day. By this stage, the order for the murder operation had
17 emanated from Mladic, the commander of the VRS, as set out in
18 paragraph 1071. The fact that Mladic, who was superior to Beara, and
19 Popovic, who was his immediate subordinate, were both aware of the murder
20 operation, in conjunction with the role played by the security branch of
21 the murder operation from its beginning, is strong evidence that he was
22 aware of the murder operation as well. And as the Chamber explained,
23 it's consistent with his behaviour over the following days. Again, he
24 fails to show that this was an unreasonable finding.
25 Moving to his second argument concerning the joint criminal
1 enterprise findings, this is his claim that the logistical assistance he
2 provided in relation to burials and personnel related to Muslims killed
3 during combat. And you can see this, for instance, in grounds 6, 15, and
4 19. This combat-related assistance claim is incorrect. In fact, the
5 evidence shows that his assistance related directly to the murder and
6 burial of detained Bosnian Muslims. The execution of detained people
7 cannot be classified as combat activity. For example, I've mentioned
8 that on 13 July Beara met with PW-161 at the SDS offices and sent him --
9 and PW-161 participated in the burying of the Kravica warehouse victims
10 at Glogova. Subsequently, Popovic ordered the reburial of these same
11 victims buried at Glogova as found at paragraphs 603 and 1158 to 1161.
12 If these were combat-related victims, why was Beara's fellow JCE member
13 ordering their reburial?
14 Further support for the Chamber's findings that his assistance
15 did not relate to combat-related victims comes from Witness PW-104. He
16 testified that on 14 July he was called for a briefing with Beara at the
17 Standard barracks at Zvornik. Beara said to PW-104:
18 "We have a lot of prisoners and it is very hard for us to control
19 them. They're at various locations in the Zvornik municipality. We have
20 to get rid of them. I expect assistance from the municipality."
21 THE INTERPRETER: Could counsel please slow down.
22 MR. GILLETT: PW-104 testified that by getting rid of them, Beara
23 meant burying the bodies of prisoners --
24 JUDGE ROBINSON: You're being asked to slow down.
25 MR. GILLETT: Apologies. Thank you for the reminder.
1 Again, there is nothing combat-related about executing prisoners.
2 Moving to Beara's third argument concerning the joint criminal
3 enterprise findings, this is his claim that he only intended the exchange
4 of the detained Bosnian Muslims and not their execution. And this is
5 raised, for example, in grounds 6 and 7 of his brief.
6 This is contradicted by numerous sources of evidence, showing his
7 willing participation in the murder operation, as set out in the
8 judgement at paragraphs 1255 to 1288, and I won't go back through those
9 again. These specific pieces of evidence that he relies on to support
10 his exchange argument do not bear the weight that he seeks to place on
12 He's talked about document 7D2D642. I believe earlier on the
13 transcript this came out as 7D2D64, but it should be 7D2D642, just for
14 references purposes. Now, this is the summary of an intercept at
15 11.25 a.m. on 13 July 1995. It refers to Beara being involved with the
16 transport of some Muslim prisoners from Kasaba to the Batkovic detention
17 camp. Now, the Chamber addressed this in detail and found it does not
18 vitiate the evidence showing his involvement in the murder operation.
19 This is a two-sentence summary. It doesn't contain the actual
20 conversation and we don't have the actual conversation in any other form.
21 We don't know who the other participant in the conversation was and we
22 don't know the specific terms that were used. What we do know is that
23 the murder operation was supposed to be carried out in secret, as set out
24 in 1057 to 1058 of the judgement. And we know that Beara was aware of
25 the vulnerability of phones to interception. We also know that rather
1 than exchanging prisoners, Beara sent thousands of them to their deaths,
2 as set out at paragraph 1283, for example.
3 The next piece of evidence that he repeatedly cites in support of
4 his exchange argument is the testimony of Zlatan Celanovic. Celanovic
5 recounted Beara saying on 13 July that if the Bosnian Muslims detained at
6 Bratunac made it through the night, they would be sent to Kladanj the
7 next day.
8 Beara claims this shows he thought they would be exchanged.
9 However, he ignores the relevant circumstances.
10 First, Beara was at the SDS offices that same evening, 13 July,
11 advocating the murder of the Bosnian Muslim prisoners, not their
12 exchange. Second, as I've mentioned, the VRS was required to carry out
13 the murder operation in secrecy. The Chamber noted these considerations
14 in the judgement. In these circumstances, it's unsurprising that he
15 refrained from openly discussing the murder operation with
16 Zlatan Celanovic, who was a lawyer with no rank attached to the
17 Bratunac Brigade.
18 Additionally, Momir Nikolic said that this supposed sending of
19 some Muslim men to Kladanj was "a propaganda exercise." That's in his
20 statement C00001, page 3. Momir Nikolic explained that some Muslim men
21 were even put onto buses with the women and children on Potocari and sent
22 towards Kladanj for the benefit of the Dutch troops and for Serb TV, but
23 then removed from the buses before they reached Kladanj. And this
24 information was acknowledged in the judgement at paragraphs 334, 336,
25 and 338.
1 In light of the circumstances, his exchange argument is
2 unconvincing. What these two pieces of evidence do confirm is, again,
3 that his alibi was untrue. They show he was in the area and that his
4 activities did relate to the Bosnian Muslim prisoners.
5 Your Honours, I've only touched on a small fraction of the
6 evidence showing his involvement and contributions to the joint criminal
7 enterprise, and it's set out in detail in the judgement. The Chamber
8 reached entirely reasonable findings in convicting him for his
9 participation in these crimes.
10 Having addressed these arguments, I'll now turn to his challenges
11 to the genocide convictions.
12 In ground 19 he argues that he did not have genocidal intent, and
13 you've heard again a development on these arguments this morning.
14 However, Beara fails to show any error, legal or factual, with the trial
15 judgement, and I should note that in his brief his arguments are
16 substantially primarily factual arguments on this ground.
17 The Trial Chamber found at paragraph 856 that:
18 "The scale and nature of the murder operation, the targeting of
19 the victims, the systematic and organized manner in which it was carried
20 out, and the plain intention to eliminate every Bosnian Muslim male who
21 was captured or surrendered proves beyond reasonable doubt that members
22 of the Bosnian Serb forces, including members of the VRS Main Staff and
23 Security Branch, intended to destroy the Muslims of Eastern Bosnia as a
25 Beara was involved in the murder operation in all its key aspects
1 and he had a clear overall picture of its massive scale and scope. As
2 the Chamber succinctly summarised - this is paragraph 1314:
3 "His vigorous efforts to organise locations and sites, recruit
4 personnel, secure equipment and oversee executions all evidence his grim
5 determination to kill as many as possible as quickly as possible."
6 Addressing the arguments you've heard this morning, the Chamber
7 found that the killing operation of many thousand Bosnian Muslim men and
8 boys targeted exclusively on the basis of their ethnicity, was sufficient
9 in and of itself to infer genocidal intent on the part of certain
10 perpetrators. That's important. It was enough in and of itself. It
11 then also referred to the forcible transfer operation being consistent
12 with that finding but not necessary, consistent. On the totality of the
13 evidence, it concluded that Beara was one of the individuals who
14 possessed genocidal intent.
15 The Defence have claimed that this is inconsistent with the
16 findings in the Krstic appeal judgement, and that is incorrect. The
17 Defence ignored that the Krstic appeal judgement confirmed that the
18 killing of many thousand men and boys from the Srebrenica enclave was
19 sufficient to infer genocidal intent. And I'll read some of the
20 paragraphs where it sets this out.
21 We can start with paragraph 21 of the Krstic appeal judgement.
22 "The Trial Chamber determined that Radislav Krstic had the intent
23 to kill the Srebrenica Bosnian Muslim men of military age. This finding
24 is one of intent to commit the requisite genocidal act - in this case,
25 the killing of the members of the protected group, prohibited by
1 Article 4(2)(a) of the Statute. From this intent to kill, the
2 Trial Chamber also drew the further inference that Krstic shared the
3 genocidal intent of some members of the VRS Main Staff to destroy a
4 substantial part of the targeted group, the Bosnian Muslims of
6 They continue at para 26:
7 "The main evidence underlying the Trial Chamber's conclusion that
8 the VRS forces intended to eliminate all the Bosnian Muslims of
9 Srebrenica was the massacre by the VRS of all men of military age from
10 that community."
11 Paragraph 27:
12 "The killing of the military-aged men was, assuredly, a physical
13 destruction, and given the scope of the killings the Trial Chamber could
14 legitimately draw the inference that their extermination was motivated by
15 a genocidal intent."
16 Your Honours, the Defence has said that the victims were a very
17 small percentage of the overall Muslim population of Eastern Bosnia and
18 even of the overall Bosnian Muslim population. The Krstic Appeals
19 Chamber addressed this consideration, and they noted that the
20 Trial Chamber was entitled to consider the long-term impact of the
21 elimination of 7- to 8.000 men from Srebrenica on the survival of that
22 community. This is paragraph 28 of the Krstic appeal judgement.
23 They noted that:
24 "... given the patriarchal character of the Bosnian Muslim
25 society in Srebrenica, the destruction of such a sizeable number of men
1 would 'inevitably result in the physical disappearance of the Bosnian
2 Muslim population at Srebrenica.'"
3 They continued:
4 "The physical destruction of the men therefore had severe
5 procreative implications for the Srebrenica Muslim community, potentially
6 consigning the community to extinction ..."
7 It's simply not a fair reading of the Krstic appeal judgement to
8 say that the Appeals Chamber required participation in forcible transfer
9 to infer genocidal intent. It doesn't say that.
10 Your Honours, Judge Shahabuddeen's dissent has been cited. That
11 doesn't reflect the majority's reasoning. That's why it's called a
12 dissent. It cannot be taken for that proposition.
13 In any event, the Chamber found that Beara was, in fact, aware of
14 the forcible transfer operation, he knew that these killings did not
15 occur in a vacuum, and you can see that in paragraph 1307. You can also
16 see it in the Chamber's findings concerning the chapeau elements for
17 crimes against humanity. Beara knew these killings were part of a
18 widespread and systematic attack.
19 Importantly, the Defence arguments also ignore a significant part
20 of Beara's conviction, the basis for his conviction. And this is the
21 serious bodily and mental harm he caused to the survivors of these
22 massacres. The Chamber found that the underlying acts of genocide
23 included killing and serious bodily and mental harm, not only to the
24 victims of the killings, but also to the male survivors and also to the
25 surviving family members and loved ones of the killed. That's the women,
1 the children, the other people separated from the victims. These are set
2 out at paragraphs 842 to 847.
3 The Chamber found that Beara "committed the underlying act of
4 killing members of the group, and through this killing, inflicted serious
5 bodily and mental harm on the families of the victims and the survivors
6 of the executions ..." That's paragraph 1310. So his actions had
7 implications far broader than the immediate murder victims.
8 Your Honours, you should reject the Defence arguments based on
9 the Krstic appeal judgement. They're inconsistent with their written
10 arguments and they simply do not reflect the state of the jurisprudence
11 at this Tribunal.
12 An additional argument that Beara makes in his brief is that:
13 "Any actions taken by Beara with regard to the military-aged men
14 in the enclave were lawful, combat-related activities against a perceived
15 military threat."
16 This claim turns the law on its head. The suggestion there was
17 anything lawful about systematically murdering thousands of men and boys
18 who were detained and murdering them on an ethnic basis cannot be
19 countenanced. Moreover, the Trial Chamber was well aware of this
20 argument. It found at paragraphs 860 to 861 of the judgement that the
21 murder operation went well beyond any response to a legitimate threat.
22 It noted that no serious effort was made to distinguish between civilians
23 and soldiers. It found that any screening efforts were so sporadic and
24 void of superior direction or supervision that one cannot derive a
25 sincere intention on the part of the Bosnian Serb forces to carry out a
1 legitimate screening operation. That's footnote 3453.
2 Moreover, it noted that the Bosnian Serb forces killed young
3 boys, old men with walking sticks, some women, and even a mentally
4 handicapped man. Many of the victims had their hands tied behind their
5 backs when they were killed and were blindfolded. What kind of military
6 threat did they present? Many of the victims had nothing to do with the
7 military. But what all the victims did have is one thing in common:
8 They were Bosnian Muslims. And that's who was really being targeted
10 The Chamber's finding that the purpose went beyond any military
11 motivation is indeed consistent with the findings upheld by the
12 Appeals Chamber in Krstic as set out at paragraphs 26 to 27 of the appeal
13 judgement. Beara's challenge to these findings is simply an attempt at
14 revisionism to try and avoid facing full justice for his actions.
15 He intended to kill the Bosnian Muslims of Eastern Bosnia and
16 that's the finding entered in the judgement on the basis of the evidence.
17 Your Honours, in his reply he refers to the judgement of
18 Niyitigeka from the ICTR. Now, if you look at Niyitigeka, it doesn't say
19 that military motivations preclude a finding of genocidal intent. In
20 fact, it stands for the opposite proposition. The Appeals Chamber held
21 at paragraphs 49 to 53 that additional motivations, such as personal or
22 military motives, do not preclude a finding of genocide. At the ICTY the
23 jurisprudence has taken a similar line. In the Jelisic appeal judgement,
24 the Appeals Chamber held that the existence of a personal motive, such as
25 economic gain, political advantage, or some other form of power, does not
1 preclude a finding of genocidal intent. That's at paragraph 49.
2 The evidence shows that, in reality, Beara engaged in the mass
3 killing of defenceless Bosnian Muslims with ruthless calculation. He
4 organised the systematic killing of every Bosnian Muslim his forces could
5 get their hands on.
6 His own words provide further evidence of his genocidal intent.
7 For example, in P1130, you'll see that on 13 July, when he was informed
8 that Bosnian Muslims were killing themselves, he said:
9 "You mean they are doing it amongst themselves? Well, excellent.
10 Just let them continue. Fuck it."
11 There are other examples I've referred to, examples where he said
12 he was getting rid of prisoners and he needed the assistance of the
13 municipality, and where he said he had 3.500 parcels to distribute, which
14 the Chamber found meant Bosnian Muslim prisoners to execute.
15 As the Trial Chamber observed at paragraph 1316, these words
16 capture clearly and succinctly the state of mind of a man bent on
17 destroying a group by killing all the members of it within his reach. On
18 the basis of the totality of the evidence, the Chamber's findings are
19 entirely reasonable.
20 The second ground I'll address in relation to the genocide
21 conviction is Beara's argument that the Trial Chamber erred by finding
22 that the Bosnian Muslims of Eastern Bosnia constituted a substantial part
23 of the Bosnian Muslims as a whole. And he challenges this in ground 21
24 of his brief. He argues that the Trial Chamber ignored the size of this
25 part of the group, and under the law, as you're well aware, the targeted
1 part of the group must constitute a substantial part of the whole group.
2 When Beara says that the Chamber ignored the size of the group,
3 that's not correct. The Chamber looked first to the size of the targeted
4 group and it noted that it was a relatively small percentage of the
5 overall Bosnian Muslim population. At this stage, mid-1995, there were
6 over 40.000 Bosnian Muslims crowded, herded, into the enclave, which is
7 actually not an insignificant number of people in and of itself.
8 THE INTERPRETER: Counsel, please slow down.
9 MR. GILLETT: Apologies.
10 Nonetheless, as the Appeals Chamber has held in Krstic, the
11 importance of the Muslim community of Srebrenica is not captured solely
12 by its size. Other relevant considerations can be taken into account,
13 and the Trial Chamber indeed did so at paragraph 865. It looked at the
14 concentration of the Muslim inhabitants of the region into the enclave.
15 The elimination of this population would eradicate the entire region of
16 its Muslim population. It looked at the strategic importance of the
17 enclave. The capture and ethnic purification of Srebrenica would
18 seriously jeopardise the efforts of the Bosnian Muslim state to ensure
19 its viability. And it looked at the emblematic significance of
20 eliminating the Srebrenica Bosnian Muslims in the face of the
21 international assurances of safety. This would serve as a potent example
22 to all Bosnian Muslims of their vulnerability and defencelessness in the
23 face of the Bosnian Serb military forces.
24 During these events, thousands were murdered, tens of thousands
25 were expelled, and the Bosnian Muslim collective consciousness was
1 indelibly harmed. Those who survived suffered profound physical and
2 psychological harm as a result of the murder operation. The Chamber
3 appropriately found that this mass killing, the largest in Europe since
4 World War II, constituted genocide. The Chamber's approach adheres to
5 the Appeals Chamber's findings in Krstic and adheres to the findings of
6 the International Court of Justice in the Bosnia genocide case at
7 paragraphs 290 to 297.
8 Beara was one of those most responsible for the genocide
9 perpetrated against the Muslims of Eastern Bosnia. The Chamber properly
10 convicted him, after giving a full hearing to his arguments, on the basis
11 of the evidence. His conviction and the sentence of life imprisonment
12 provide at least a small measure of justice for the victims, both living
13 and deceased, in the face of the massive crimes for which he is
15 Your Honours, the Defence have said a few words about sentencing.
16 Our arguments are set out in our brief in this respect. Suffice to say,
17 the Trial Chamber noted that these mitigating circumstances were of
18 limited weight, and in the face of his high level of culpability for such
19 grave crimes, a sentence of life imprisonment was entirely appropriate.
20 Anything less would be manifestly inadequate, in our submission.
21 In summary, Beara has challenged every finding against him. At
22 the core of his arguments is the claim there was a vast conspiracy to
23 falsely implicate him in these events. This claim is thoroughly
24 discredited by the evidence. It's discredited by a variety of witnesses,
25 by documents, and by his own words in intercepted conversations. This
1 powerful evidence points in one direction and that's Beara's
2 responsibility for the mass killings and genocide of the Muslims of
3 Eastern Bosnia.
4 Your Honours should dismiss his arguments and uphold his
5 convictions and sentence.
6 If you have no further questions, that concludes my submissions,
7 and I would pass over to Mr. Rogers.
8 JUDGE ROBINSON: Yes, thank you, Mr. Gillett.
9 MR. ROGERS: Good afternoon, Your Honours. I shall deal with
10 Your Honours' question posed to the parties, and my apologies to the
11 interpreters for my speed yesterday. I will make every effort to be slow
12 today. I hope it doesn't become too slow.
13 The question that Your Honours asked is discussed whether the
14 trial record supports a finding that the necessary link existed between
15 the principal perpetrators of the killings in Jadar River and in Trnovo
16 and Beara; and then secondly, more generally, whether this link existed
17 between the principal perpetrators of crimes who were not necessarily
18 members of the VRS and members of the JCE to murder. And we note in
19 particular the footnote to item 10, where Your Honours list specific
20 aspects of the trial judgement at paragraphs 794.1, .2, .7, and .9, and
21 we will address those.
22 Your Honours, of course, in terms of the law, it's well
23 established that crimes committed by persons who are not necessarily JCE
24 members themselves can be attributed to JCE members if the necessary link
25 between the perpetrators and one or more of the JCE members is
1 demonstrated. That's obviously referring to Brdjanin at 413, and Martic
2 at 168, Krajisnik at 225, all appeals judgements.
3 And non-JCE members in these scenarios frequently referred to as
4 tools. Past cases at the Tribunal here have recognised a non-exhaustive
5 list of ways in which the link can be made between the principal
6 perpetrators and the JCE members. And those are referred to again in
7 Brdjanin at 365 and 411; Martic at 168; and Stakic at 65, again all
8 appeals judgements. But in broad terms, one of the ways is where a
9 member of the JCE is in a hierarchical relationship with the principal
10 perpetrators or where the principal perpetrators are working in close
11 co-operation with forces that are under the authority of a JCE member.
12 And Your Honours will recall from the Martic appeals judgement and
13 Krajisnik appeals judgement, Your Honours looked carefully at how those
14 links were established because the Appeals Chamber considered the
15 Trial Chamber in parts in those cases had some difficulty articulating
16 that link. We understand that is where Your Honours are driving with the
17 question today.
18 Of course, it's important to remember that the question of
19 whether a link exists in the particular circumstances of the case is a
20 factual question, and consequently, deference will apply to that factual
21 determination where it has been made unless it's so unreasonable that no
22 Trial Chamber could reach that conclusion. Again, the relevant
23 jurisprudence set out in Brdjanin, Martic, and Krajisnik. I'm not going
24 to repeat it again.
25 Popovic Trial Chamber understood that because it referred to this
1 governing law at paragraphs 1029 to 1030 in its judgement. So it was
2 well aware of what was required.
3 In relation to the Jadar River, turning first to that, the
4 Chamber found that on the 13th of July, 1995, 15 Bosnian Muslims were
5 killed at the Jadar River. Perpetrators were found to be Bosnian Serb
6 forces which it defines in the judgement, in fact, and it included at
7 least one member of the MUP, Nenad Deronjic. That's found at judgement
8 paragraph 408. Paragraph 199 of the appeal brief, Beara accepts that the
9 perpetrators of the killing incident included members of the police in
10 his brief at paragraph 199. Your Honours, in relation to the Jadar River
11 killing and the other killings in and around Bratunac, the Trial Chamber
12 held that:
13 "Common elements, including the units involved,"
14 Bratunac Brigade, "the method and means by which the killings were
15 carried out, and the time-frame within which they occurred bring these
16 events within the scope of the common purpose."
17 That's at judgement 1074.
18 So, in other words, they understood the totality of what was
19 happening on the ground at the time in making their determination. And
20 the trial record provides ample support for the finding and demonstrates,
21 for example, that the Bratunac Brigade was closely co-operating with the
22 MUP units involved in the killings. Of course, the Bratunac Brigade and
23 the other VRS forces sitting underneath the command of Ratko Mladic, one
24 of the named JCE members.
25 PW-112, the one survivor of the Jadar River killings and a key
1 witness for the incident, was together with other members of the column
2 on the 13th of July, when he was arrested by MUP members along the
3 Bratunac to Konjevic Polje road. That's referred to in the judgement at
4 paragraph 390.
5 The Trial Chamber found that there was a single operation by
6 Bosnian Serb forces on the 13th of July along that road, the
7 Bratunac-Konjevic Polje road, resulting in the surrender or capture of
8 many hundreds of Bosnian Muslims from the column. Bosnian Serb forces
9 involved in the operation included the Bratunac Brigade and various MUP
10 units, referred to in the judgement at 1458, 365, and 376 to 389. MUP
11 members involved in the operation were under either the authority of the
12 VRS or closely co-operating with them. For example, Your Honours can
13 find reference in the testimony of Mirko Trivic at trial
14 transcript 11844, who was the commander of the Romanija Brigade,
15 testifying that the Bratunac and Milici Brigades, in co-operation with
16 MUP forces, were ordered to secure the Bratunac to Konjevic Polje road
17 and the Konjevic Polje to Milici road. It's in the judgement at
18 paragraph 376.
19 Similarly, P00148, a Drina Corps intelligence service report of
20 the 12th of July, signed by Tolimir, notes that the commands of the
21 Bratunac, Zvornik, and Milici Brigades were to act in co-operation with
22 the police in securing the roads, including the Bratunac-Konjevic Polje
24 Consistent with this, Momir Nikolic confirmed that on the
25 12th of July and the early morning of the 13th, through intelligence
1 reports and other information, he was made aware that VRS and MUP forces
2 were capturing Muslim men in the area of Konjevic Polje. That's in his
3 statement of facts exhibited at C1. Bosnian Muslims captured during this
4 operation were killed in and around Bratunac or transported out of the --
5 to the Zvornik area and killed in locations there, referred to in the
6 judgement at 1449 to 53.
7 Your Honours, the way in which PW-112 and other victims of the
8 Jadar River incident were apprehended, interrogated, and then
9 significantly taken by bus to be killed by the Bosnian Serb forces,
10 including MUP units, fits with the operation and the other killing
11 incidents that were carried out that day, such as the Kravica warehouse
12 murders, also involving VRS and MUP forces, killing men from the detained
13 column. I refer Your Honours to the judgement at 408 and also 390.
14 Your Honours, PW-112 was captured by MUP members, he was
15 interrogated at a facility used by the VRS 5th Engineer Battalion, as
16 shown in Exhibit P00686, and was taken together with other victims later
17 to the execution site at the Jadar River on a bus. The perpetrators, at
18 least one of whom was identified as a MUP member, wearing military
19 camouflage uniforms.
20 Your Honours, in our submission, it was clear that the
21 Trial Chamber accepted that this incident was part of the operations by
22 Bosnian Serb forces, and in the totality of the circumstances, it was
23 appropriate to link it to one of the JCE members, in this case
24 Ratko Mladic as commander of the VRS forces, either directly or through
25 the mode of close co-operation, indicating that attribution thereby to a
1 JCE member is made and thereby liability established across to Beara for
2 his part as a JCE member.
3 Of course, such close co-operation between units and VRS forces
4 is sufficient, as I've already said, in -- established in Martic.
5 Your Honours, then moving on to the Trnovo incident, Your Honour,
6 this is a slightly different set of circumstances. The Chamber found
7 that in July 1995, some six Bosnian men and boys were killed near Trnovo
8 town, approximately 150 kilometres from Zvornik, by a Serbian MUP unit
9 called the Skorpions. That's in the judgement at 597 to 599 and also
10 referred at 794.18.
11 The victims were all Bosnian Muslim men from Srebrenica,
12 judgement 1080, and they were last seen by their families in the
13 Srebrenica enclave in July 1995. That's in Exhibit P03248 and there's a
14 stipulation. At least one of the victims was at one point part of the
15 column. That's referred to in footnote 2166. The Chamber held that the
16 killings at Trnovo fell within the scope of the JCE to murder, stating
17 that it would be "an unreasonable inference that within the same relative
18 time-period in an adjoining area there was a separate, distinct murder
19 operation targeting precisely the same victims." That's at trial
20 judgement paragraph 1080.
21 Your Honours, in light of the circumstances of the victims, the
22 Chamber's finding was reasonable. The Trial Chamber correctly observed
23 that the victims were from the same group as the other victims of the
24 JCE 1 murder incidents in and around Bratunac and Zvornik.
25 Moreover, there is some evidence on the record showing that the
1 Bosnian -- that the Skorpions were part of Bosnian Serb MUP forces
2 working together with the VRS in Trnovo in July 1995, and we refer you to
3 Exhibit P03794 and also to transcript reference 26860, together with
4 other references relating to the brigade structures at trial
5 judgement 185 and 244.
6 Your Honour, the combination of victims coming from Srebrenica
7 and the Skorpions operating with MUP forces in concert with the VRS is
8 powerful support for the incident falling within the JCE's common
9 purpose, and such co-operation between the Skorpions and the MUP units
10 together with VRS forces in the context is sufficient for JCE
11 attribution, as set out previously.
12 I turn to the next part of the question. I'm sorry it takes a
13 little while to get through these incidents.
14 Opportunistic killings are the second part of Your Honours'
15 question referring to 794.1 and.7 at the Vuk Karadzic school.
16 Your Honours, in paragraph 794.1, the Chamber found that on the 12th and
17 the 13th of July, between 40 and 80 Bosnian Muslim prisoners were taken
18 from a hangar behind the Vuk Karadzic school and killed. This is in the
19 judgement at 452 to 55. And in paragraph 794.7, the Chamber found that
20 between the 13th and the 15th of July, an unknown number of Bosnian
21 Muslim men were killed inside and outside the same school, again in the
22 judgement 460 to 63, and of course the paragraph referred.
23 Your Honours, VRS members were directly involved in both the
24 guarding and the execution of the prisoners. There's reference in the
25 trial judgement 406. At 406, the Bosnian Muslim prisoners in Bratunac
1 town on the 12th to the 13th of July were guarded by members of the
2 Bosnian Serb forces, including military policemen of the
3 Bratunac Brigade. They were working together with members of the MUP in
4 those activities, and evidence underlying this finding includes that of
5 military police Mile Janjic, referred to at footnote 1424 of the
6 judgement; and Momir Nikolic explained in Exhibit C1 at page 6 that it
7 was decided at a meeting on the evening of 13 July at the
8 Bratunac Brigade headquarters that the prisoners in Bratunac should
9 continue to be guarded by elements of the Bratunac Brigade military
10 police, various civilian MUP forces, and armed volunteers from the
11 Bratunac town. That's at judgement paragraph 406.
12 Your Honours, it's inconceivable that those activities were not
13 being carried out together and as part of the whole operation. The
14 perpetrators of the killings of the prisoners from the hangar behind the
15 school were Bosnian Serb forces, including soldiers in camouflage
16 uniform, as set out in the evidence at PW-169, an example at
17 transcript 17324 to 17326. Indeed, Mladic himself came to the hangar on
18 the morning of the 13th of July and gave instructions to ten members of
19 Bosnian Serb forces who were guarding prisoners there, as set out in
20 paragraph 402 of the judgement.
21 Your Honours, the perpetrators of the killings of prisoners held
22 inside the Vuk Karadzic school and outside on buses were a mix of
23 soldiers and policemen, as testified to by Ahmo Hasic, one of the
24 survivors, at transcript 1180 to 1181, and 1188. And we refer
25 Your Honours also to trial judgement 461. Beara himself walked past the
1 buses parked outside the Vuk Karadzic school on the 13th of July and saw
2 prisoners detained in and around the school, referenced in the judgement
3 at paragraph 1262.
4 Your Honours, based on the evidence, the killings in and around
5 the Vuk Karadzic school are linked to the JCE in several ways. The
6 killings were part of a joint operation by the VRS and MUP forces in
7 Bratunac. VRS members specifically being involved in them. And JCE
8 members such as Mladic and Beara on hand guiding and monitoring the work
9 of Bosnian Serb forces. Consequently, these killings are not separate
10 and distinct from the VRS/MUP operation to detain the Muslim prisoners.
11 And the findings that the killings were foreseeable consequences of the
12 implementation of the JCE to murder are thus entirely reasonable.
13 At 794.2, moving on to the next incident, this is another
14 opportunistic killing, this time in Potocari. On the 13th July 1995,
15 nine Bosnian Muslim men were killed in a field near a stream about
16 500 metres distant from the DutchBat compound in Potocari, judgement 354
17 to 59. And one Bosnian Muslim --
18 THE INTERPRETER: You are kindly asked to slow down for the
19 purposes of interpretation.
20 MR. ROGERS: I failed. I'm very sorry. I was doing my best.
21 Your Honours, just dealing with one Bosnian Muslim man was taken
22 behind a building near the White House at Potocari at killed, judgement
23 354 to 359. The Chamber reasonably found that it was the Bosnian Serb
24 forces who killed the nine men found near the DutchBat compound.
25 Potocari was taken over on the 12th July by VRS and MUP units operating
1 together, as found at trial judgement paragraph 302. The MUP units who
2 participated in the take-over of Potocari included the Jahorina recruits
3 and the 1st PJP Company from Zvornik, both units under the command of
4 Borovcanin. That's found in the judgement at paragraph 185.
5 Indeed, Borovcanin was present in Potocari on the 12th July as
6 was Mladic, moving constantly through the area, referred to again in the
7 judgement, and seen personally handing out food. By the morning of the
8 13th of July, Bosnian Serb forces fully controlled Potocari and not even
9 DutchBat could walk freely, as set out in the judgement at paragraph 302
10 to 305 and 357. In those circumstances, it was entirely reasonable for
11 the Trial Chamber to find that the killings in Potocari were committed by
12 Bosnian Serb forces and were foreseeable consequences of the JCE to
13 murder. Indeed, when looking at the killings of the nine men, DutchBat
14 officers found that they were still warm when they examined them. They
15 were fired on by Bosnian Serb forces, that's DutchBat themselves were
16 fired upon, as noted in the judgement at 355 and 356. And again, the
17 perpetrators who killed the Muslim men behind the White House were
18 observed by DutchBat forces to be Serb soldiers wearing typical
19 camouflage uniforms, matching those of other Bosnian Serb forces who
20 controlled Potocari at the time. Suggesting they observed the killing
21 itself, they saw the men being taken behind by uniformed soldiers.
22 Given the involvement of forces under the authority of JCE
23 members such as Mladic in joint operation with the MUP and given his --
24 Mladic's personal involvement in directing Bosnian Serb forces in
25 relation to those detentions in Potocari, the Chamber properly found that
1 the killings were linked to the implementation of the JCE.
2 Your Honours, I've just got one more to deal with. I'm conscious
3 we're coming up to a break. It will take me just a couple of minutes,
4 and then probably it's a good time, if it's suitable to Your Honours, to
5 break there.
6 JUDGE ROBINSON: Yes, go ahead.
7 MR. ROGERS: Thank you.
8 Final incident, 794.9, the Petkovci school. Your Honours, there
9 the Chamber held that on the 14th of July, 1995, several Bosnian Muslim
10 men detained at the Petkovci school were killed. This is in the
11 judgement at 498. This was also charged as an opportunistic killing
12 because the main killing of the Bosnian Muslim prisoners detained at the
13 Petkovci school was carried out at the Petkovci dam. Although there was
14 no specific finding as to the precise identity of the perpetrators for
15 the killings at the Petkovci school, the Chamber found that the killings
16 at the dam and other places were:
17 "... well organised and followed the same pattern: men were
18 detained, transported to an appropriate site, and summarily executed.
19 The Zvornik Brigade Military Police guarded the prisoners prior to their
20 execution, various Zvornik Brigade Battalions were involved, and the
21 Zvornik Brigade Engineering Company buried the bodies."
22 That's in the judgement at 1075.
23 Your Honours, there's abundant evidence showing that the
24 detention and killing of Bosnian Muslims at the Petkovci school was
25 connected with the implementation of the murder operation.
1 Your Honours, in those circumstances it's our submission that the
2 Chamber was perfectly proper to associate this incident with the JCE and
3 attribute it in that way to members of the JCE, including Mladic and
5 Your Honours, that completes my submission in relation to the
6 question and the Prosecution's submissions in response to Mr. Beara
7 before I completely lose my voice.
8 JUDGE ROBINSON: Thank you.
9 Did you say that's the end of the Prosecution's response?
10 MR. ROGERS: Yes.
11 JUDGE ROBINSON: Okay.
12 Well, we'll take the break and resume at 3.23.
13 --- Recess taken at 3.02 p.m.
14 --- On resuming at 3.25 p.m.
15 JUDGE ROBINSON: Yes, we'll hear the response for - how many
16 minutes? - 30 minutes, 30 minutes. And when that is over, in accordance
17 with the plan announced yesterday, we move on to the next counsel, so,
18 Mr. Bourgon, don't be caught off guard.
19 Okay. But I see you're ready. You're a good scout.
20 MR. OSTOJIC: Good afternoon, Your Honours. Thank you.
21 My initial observation, if I may respectfully submit, that I'm
22 not surprised that the OTP has ignored the crux of our argument submitted
23 orally and in written form. I would have expected at least, instead of a
24 regurgitation of the Trial Chamber's conclusions and factual findings,
25 that they would have addressed why any weight should have been given to
1 the Deronjic evidence. The Trial Chamber's decisions with respect to
2 that evidence is consistent throughout all the findings against Beara.
3 They've criticised me for not understanding the aggravating
4 circumstances, but if you look specifically at the sentence at
5 paragraph 2166, the Trial Chamber utilised that same evidence from
6 Deronjic to find that Beara was cold and calculating. They used the same
7 underlying crimes to now find that he was -- it's an aggravating
9 I'm disappointed that they didn't even mention the Deronjic
10 evidence, more so than simply to say that the Appellate Chamber had
11 allowed that evidence to be introduced. We know that the first step is
12 to determine whether it's reliable, the next it provides extraordinary
13 caution to the Trial Chamber to give any weight to it. I believe in our
14 submissions, both orally and in writing, we've at least tried and
15 hopefully established that the Deronjic testimony is infected with
16 numerous defects, inconsistencies, and statements that were only
17 self-serving to Deronjic himself to implicate others.
18 My learned friend talked about our main claim being that there
19 was a collusion. He said there's no evidence of that, none whatsoever.
20 We suggest that the joint criminal enterprise members, if you will, at
21 that time included Deronjic, Momir Nikolic, Mr. Borovcanin, and
22 Dragomir Vasic. We saw in the exhibit that was tendered to the Court or
23 shown to the Court, I should say, 2D -- I mean 7 -- sorry, P886, where
24 MUP expressly states that they're taking the sole responsibility. I
25 tried in the brief minutes that we had to scan through the oral
1 submissions to see if they've even addressed it. They don't. They
2 can't. They refuse to. Whenever - and I totally mean this - whenever
3 there is evidence that falls squarely against a Defence argument, the
4 Prosecution either ridicules it or sweeps it under the rug and gives no
5 adequate consideration. Unfortunately, the Trial Chamber below also
6 erred in failing to give a reasoned opinion as to why that evidence
7 should have been given its due weight as other evidence.
8 Collusion. Deronjic, Momir Nikolic, Borovcanin, and Vasic. Do
9 we know what Deronjic was convicted of? Yes, it's in the trial record.
10 We know he was convicted for crimes that he and other members of the
11 Bratunac area, political and MUP, were involved in killings in Bratunac
12 merely two to three years prior to the Srebrenica massacre. We know
13 specifically from his sentencing and his plea agreement that he was
14 convicted for the murders in Glogova. The Prosecution will have you
15 believe that Mr. Beara came to Bratunac and he's the one who searched out
16 and was looking for places to bury prisoners. All he had to do, if
17 that's true, is ask Deronjic: Where did you bury them a couple of years
18 ago? The truth of the matter is that there was collusion because they
19 all worked together, they conspired together, and together they committed
20 crimes merely two to three years ago in that same area.
21 They claim there's nothing to link Deronjic with Momir Nikolic.
22 Sure there is. They don't tell the Trial Chamber that Deronjic and
23 Nikolic are related by marriage. Is that not a relevant fact? It's
24 found at the footnote of the Trial Chamber's decision at 4134.
25 Collusion, indeed.
1 Also in a footnote of the Trial Chamber's decision, it talks
2 about how Deronjic and Nikolic confronted each other and that there was a
3 denial or an argument with respect to whether or not Momir Nikolic was
4 even present at the SDS meetings, the same Momir Nikolic who testified
5 not only inconsistently but changed his testimony, admitted to crimes so
6 that he could get a lesser sentence and then retracted them when they
7 found that there was little or no evidence. So the Prosecution in good
8 faith couldn't even accepted his lies that he committed crimes. He was
9 ready to take responsibility for other crimes just so that he could get a
10 lower sentence.
11 Yes, I believe there was collusion. I believe the evidence
12 suggests that there indeed was collusion; however, that's not the thrust
13 of our argument. Our argument remains that if you strip down the trial
14 judgement's decision and its reasoning by giving no weight or,
15 respectfully, very, very limited weight to the Deronjic testimony and
16 evidence, you'll find that the Trial Chamber had insufficient evidence to
17 establish that Ljubisa Beara was a member of the joint criminal
18 enterprise to murder and that Ljubisa Beara did not significantly
19 contribute to that JCE to murder.
20 Likewise, if we strip down -- and I would have expected them to
21 say: We concede; or in the alternative, if you take away Deronjic's
22 testimony, there's enough there, but they know without Deronjic's
23 testimony there is not just scant evidence. There is some evidence, we
24 believe it's not credible, that's our opinion. There's some evidence
25 that he was present. They mock us indirectly and say: Well, in one part
1 they accept Celanovic, but we do in part alternatively state that if it's
2 true and if this Chamber finds that Celanovic is a credible witness, what
3 did Beara say to him? Nothing criminal? Nothing illegal? Nothing
4 offensive? Nothing that would constitute him or this Trial Chamber to
5 conclude that he was a member who substantially contributed to the JCE.
6 We cannot make alternative arguments, but the Prosecution can. That
7 double standard should not exist and I believe that it does not exist --
8 THE INTERPRETER: Could counsel please slow down.
9 MR. OSTOJIC: Thank you, and I apologise.
10 My learned friend said in his oral statements that Beara was
11 advocating murder. Based on what? The Deronjic evidence. He doesn't
12 tell you that's what he bases it on. I would have hoped that they would
13 have argued that either it should give -- the Trial Chamber should have
14 given it all due weight, as it did, or that it shouldn't have given him
15 any weight or limited weight. They simply ignore it.
16 They state that some certain dissenting opinions don't carry much
17 weight. I cited one from the Tolimir case. But it's not a dissenting
18 opinion, it's a dissenting and separate concurring opinion on what
19 justice and the honourable justice -- Judge Nyambe said. She addressed
20 collusion among witnesses. She addressed witnesses who point the finger
21 at others because they want a reduction in their sentence. She cited to
22 Matthew Hale and she states as follows:
23 "This course of admitting of approver's hath been long disused,
24 and the truth is, that more mischief hath come to good men by these kinds
25 of approvements by false accusations of desperate villains, than benefit
1 to the public by the discovery and convicting of real offenders."
2 She cites to Matthew Hale: "History of the Pleas of the Crown."
3 JUDGE ROBINSON: What year was that?
4 MR. OSTOJIC: What year was the cite --
5 JUDGE ROBINSON: [Microphone not activated]
6 MR. OSTOJIC: -- or the opinion? Pardon me?
7 JUDGE ROBINSON: Matthew Hale.
8 MR. OSTOJIC: Specifically, yes, it's 1800. She goes on to say
9 that centuries' old -- for centuries, Trial Chambers have taken with
10 extreme caution and scrutiny the testimony of people who have been
11 convicted, people who have shown to have an inconsistency, and people who
12 have shown to lie only to cover their own actions. There is, I believe,
13 no greater evidence than the evidence from Dragomir Vasic who plainly on
14 that date states MUP was solely responsible and they took over with the
15 goal of liquidating or killing 8.000 Bosnian men and boys.
16 Just briefly, I want to state that they quoted from an -- two
17 appellate records that said: If someone has a personal motive or even a
18 military motive, it does not preclude genocidal intent. However,
19 however, it indeed raises in the right case, in certain circumstances, in
20 the proper context, it raises reasonable doubt as to genocidal intent.
21 We're not suggesting it precludes it, but it certainly provides an
22 opportunity in the proper context to raise sufficient reasonable doubt.
23 The Prosecution has time and time again said we have failed, that
24 we haven't established things fully and completely. It's not our burden
25 at the trial level. That's why we're suggesting that the Trial Court
1 erred, both factually and legally, and failed in its reasoning when it
2 included the evidence of Borovcanin, of Momir Nikolic, and of
3 Miroslav Deronjic. And we ask that this Court, if you consider the
4 Trial Chamber by looking at their legal and factual findings, you'll find
5 that without the Deronjic testimony that should be thrown out, that there
6 is very little, if any, evidence to implicate Mr. Beara.
7 Thank you very much.
8 JUDGE ROBINSON: Thank you.
9 MR. SEPENUK: Thank you, Your Honours. I'll be quite brief.
10 The Prosecution's burden in this case was to prove that Mr. Beara
11 had the genocidal intent to destroy the Bosnian Muslim community in
12 Srebrenica, which was the relevant part of the group. Mr. Beara's
13 acquittal on the forcible transfer charge negated that general intent, we
14 submit. This is clearly shown by paragraphs 31 and 33 of the Krstic
15 Appeals Chamber opinion which I cited at length this morning and won't
16 repeat here.
17 What I would like to repeat here, though, with Your Honours'
18 permission, very briefly, is that part of Judge Shahabuddeen's partially
19 dissenting opinion -- I want to make one thing clear. The Prosecution
20 said in effect - I don't want to be unfair to them - but in effect they
21 said in effect: Don't pay any attention to that opinion, it's a
22 dissenting opinion. That is a gross oversimplification and it's simply
23 not true. Because the only thing that Judge Shahabuddeen dissented on
24 was his opinion was and he found that General Krstic should have been
25 convicted of genocide. The majority reversed the finding of genocide by
1 the Trial Chamber and found him guilty of aiding and assisting genocide.
2 But on all the relevant considerations of genocidal intent, including the
3 acquittal on the forcible transfer, Judge Shahabuddeen was on all fours
4 with the majority opinion, and I don't think the Prosecution wants us to
5 cite it again and I'll do it very briefly because it's so powerful and
6 it's so convincing and it's so logical and that is this, when he said in
7 paragraph 35:
8 "Thus, standing alone, forcible transfer is not genocide, but in
9 this case the transfer did not stand alone and that indeed is the basis
10 on which the Appeals Chamber rejected the Defence argument that it showed
11 that there was no genocide. It was part - an integral part - of one
12 single scheme to commit genocide, involving killings, forcible transfer,
13 and destruction of homes. In particular, it showed that the intent with
14 which the killings were done was indeed to destroy the Srebrenica part of
15 the Bosnian Muslim group."
16 Colonel Beara was -- Mr. Beara was acquitted on the forcible
17 transfer charge under the rationale of both majority in the Appeals
18 Chamber and Judge Shahabuddeen's opinion, I think it's quite clear that
19 the genocide conviction in this case must fall.
20 Thank you, Your Honours.
21 JUDGE ROBINSON: The Prosecutor also cited I think portions of
22 the Krstic judgement in which the Chamber said that the genocidal intent
23 could be inferred from the killings themselves.
24 MR. SEPENUK: [Microphone not activated].
25 Excuse me. It went on again in paragraphs 31 and 33 of the
1 opinion, Your Honour, to clarify and amplify that, saying that you had to
2 consider also the forcible transfers because the destruction of the
3 relevant group was the entire Bosnian Muslim community of Eastern Bosnia.
4 That's the 40.000 people. A subpart of that 40.000 was the 5300,
5 whatever figure you want to accept, of the military-aged men. But it was
6 certainly not enough to just consider the military-aged men in that
7 equation. It had to be in connection with the destruction -- but that
8 was the only relevant group or relevant part of the group that was
9 accepted by the Trial Chamber, properly so, and charged by the
10 Prosecution as the relevant part of the group. It embraced the entire
11 community, some of which were killed, military-aged men, and many of
12 which, 25.000 or so, were deported. That was the destruction of the
13 Srebrenica and Zepa enclaves that the Court was talking about.
14 JUDGE POCAR: Counsel, is that -- just to try to understand
15 exactly which is your submission, it's your point that the targeted
16 group, the part of the group, must include the men targeted for killing
17 and the men targeted for transfer at the same time? And you don't have a
18 group targeting only the men that are targeted to be killed? Is that
19 your position?
20 MR. SEPENUK: Yeah, our position, Your Honour --
21 JUDGE POCAR: That when the rule says, the norm says, targeting
22 in -- destruction in whole or in part, that part must comprise both the
23 men in the military age have to be killed and the other part of the
24 population, women and children and elderly people, or that part may
25 include only the men that were targeted to be killed?
1 MR. SEPENUK: Yes -- no, Your Honour, it's your first
3 JUDGE POCAR: I'm trying to understand --
4 MR. SEPENUK: It's your first supposition, that the Bosnian
5 Muslims of Eastern Bosnia comprised the men and the transferred --
6 forcibly transferred population, the women, children, elderly. And that
7 was the charge of the -- this was nothing that was created by Mr. Beara.
8 That was the charge of the government in this case, that was their
9 indictment, that was the theory of their indictment, and we quoted that
10 one paragraph in the Trial Court's opinion, in which it summarised what
11 the Prosecution's theory was. And that was, indeed, the Prosecution's
12 theory and that was accepted - and we think rightly so - by the
13 Trial Chamber as being the Bosnian Muslims of Eastern Bosnia, comprising
14 the group that I just mentioned. That was the theory of the Prosecution
15 in this case. And by the acquittal again on the forcible transfer
16 charge, that negated genocidal intent because the intent was not to
17 destroy and annihilate the entire Bosnian Muslim group. The intent, if
18 anything, was -- assuming, conceding for a moment arguendo, the intent
19 was to kill the men and that's it. When I say "that's it," I don't say
20 that summarily, I say that with proper seriousness of purpose. But
21 that's the most the intent would show in this case, the most.
22 Murder, extermination, I don't -- my colleague Mr. Ostojic has
23 talked to those issues. But I'm assuming arguendo that if there's going
24 to be any conviction in this case, assuming arguendo that you reject,
25 let's say, Mr. Ostojic's argument, it would be for murder and for
1 extermination but not genocide.
2 JUDGE POCAR: Can you perhaps elaborate on how you reconcile this
3 holistic notion of the group with the position that genocide must imply
4 the physical destruction of the group?
5 MR. SEPENUK: Well, you know, when I argued the Krstic case ten
6 years ago, Your Honours -- as a matter of fact, I believe you were on
7 that panel ten years ago. I could be wrong, but I think that's true.
8 JUDGE POCAR: [Microphone not activated].
9 MR. SEPENUK: And we did argue that it was necessary -- physical
10 destruction was absolutely required and that displacement of the
11 population could not be considered at all by the Trial Chamber and we
12 lost on that. The court of appeal -- this Appeals Chamber said: No,
13 that's just not so. Forcible transfer is an element, and that's where
14 they talked about it in paragraphs 31 and 33 of the opinion, and then
15 also obviously Judge Shahabuddeen. So that -- that notion has been
16 rejected. So under current law, and obviously we accept that, you can
17 have physical destruction even if -- on the theory, for example, that the
18 community could not reconstitute itself.
19 You know this -- the finding of the Krstic Appeals Chamber has
20 been strongly criticised by commentators including Mr. Schabas in his
21 article on genocide in the Florida Law Review, but we don't live in that
22 academic world. So I'm accepting, I'm accepting fully the rationale and
23 the holding, which we must, of course, as officers of this court,
24 accepting the Krstic Appeals Chamber judgement as absolutely binding
25 precedent for this case.
1 JUDGE POCAR: Thank you.
2 JUDGE NIANG: Counsel, I just wanted to have some further
3 clarification on this point. So if I understand correctly, there are
4 three set of actions entailing genocide in this particular instance,
5 meaning the killings, the forcible transfer, and destruction of homes, if
6 I understand correctly --
7 MR. SEPENUK: I don't think and I'll have check with my lead
8 counsel here who has a superior knowledge of the facts -- yeah, no, we
9 don't have the destruction of homes. That was in the Krstic case.
10 JUDGE NIANG: In the Krstic --
11 MR. SEPENUK: Right. Now, here we have the murders of the men
12 and the forcible transfer, right.
13 JUDGE NIANG: I just want to understand your submission. Do you
14 mean to say that if we have proof of someone being involved in killings
15 and if that same person has not been involved in another set of
16 transactions that is part of the genocide, that person should be
17 acquitted; is that what you're saying?
18 MR. SEPENUK: Yes, Your Honour, that is. Because we read Krstic
19 as requiring the combination of the killings and the forcible transfer
20 because that's the only way you reach the conclusion that the genocidal
21 intent was to destroy a part, the relevant part being the Bosnian Muslims
22 of Eastern Bosnia. Killing of the men, again, it could be extermination,
23 it could be murder; it's not genocide.
24 JUDGE NIANG: Let me put it another way, then. Let's just assume
25 we are in a situation where the genocide only involved the killings, but
1 there are many sets of killings, and here you have an accused being
2 involved in specific sets of killings and not in some other sets of
3 killings, would you say that still that person should be acquitted?
4 MR. SEPENUK: Well, it would depend, Your Honour, on the targeted
5 group. We have to define what is the part. The Bosnian Muslims in this
6 case, that was the ultimate group.
7 JUDGE NIANG: Yes.
8 MR. SEPENUK: The part of the group, as held by the Trial Chamber
9 and as advanced by the Prosecution, was the Bosnian Muslims of Eastern
10 Bosnia. So I'd have to know more in your hypothetical example of what
11 was going on.
12 JUDGE NIANG: Yeah, so -- because that I put it -- I just base it
13 on the facts that it seems here that the Trial Chamber did not say that
14 forcible transfer did not exist, but maybe -- it was a fact of
15 [indiscernible] --
16 MR. SEPENUK: A fact of -- I'm sorry. A fact --
17 JUDGE NIANG: The forcible transfer -- the Trial Chamber did not
18 say that it did not exist in this case. What the Trial Chamber says,
19 based on what you are saying now, is that he was acquitted, he was not
20 part of it.
21 MR. SEPENUK: Exactly.
22 JUDGE NIANG: But he was part of the killings, but still he
23 should be acquitted?
24 MR. SEPENUK: That's our submission, Your Honour.
25 JUDGE NIANG: Okay.
1 [Appeals Chamber confers]
2 JUDGE ROBINSON: Yes, I think I'm going to ask Mr. Gillett to
3 comment on that particular point, your point that the targeted group from
4 your understanding of Krstic must be the whole community, the Bosnian men
5 and those who were forcibly transferred.
6 MR. SEPENUK: Yes, Your Honour.
7 JUDGE ROBINSON: I don't think you addressed that point. You did
8 point to parts of the judgement which substantiated the view that the
9 killings themselves can provide genocidal intent. But would you like to
10 comment on that point?
11 MR. GILLETT: Thank you, Mr. President, Your Honours, for the
12 opportunity to address this question and my learned friend's submissions.
13 As we read the Krstic appeal judgement - and I submit there is
14 only one way to read it - at no point does it insert a requirement of
15 proving forcible transfer or involvement therein in order to infer
16 genocidal intent. At paragraph 27 it says very clearly, the last
17 sentence of paragraph 27:
18 "The killing of the military-aged men was, assuredly, a physical
19 destruction, and given the scope of the killings the Trial Chamber could
20 legitimately draw the inference that their extermination was motivated by
21 genocidal intent."
22 The fact of the forcible transfer was an additional consideration
23 but not a necessary consideration. The targeted victims in this case
24 were the Bosnian Muslims of Eastern Bosnia, and the Trial Chamber's
25 finding that genocidal intent could be inferred from the killing of
1 several thousand men and boys and the effects of those killings, the
2 serious bodily and mental harm caused to the survivors and the families
3 who have to live on in the shadow of these events, these are a basis from
4 which you can infer genocidal intent and they're entirely in keeping with
5 the Krstic appeal judgement. There is no requirement of proving forcible
6 transfer in order to prove genocide.
7 That's our submission, unless you have further questions on that.
8 JUDGE ROBINSON: Thank you. That concludes the submissions and
9 the responses in respect of Mr. Beara. So we now move to the appeal of
10 Drago Nikolic, and I call on counsel to present submissions.
11 MS. NIKOLIC: [Interpretation] Good afternoon, Mr. President.
12 Good afternoon, Your Honours, and good afternoon to everybody in the
14 Mr. President, Your Honours, I have the honour to address this
15 honourable Appeals Chamber today and to begin the presentation of the
16 oral arguments on behalf of Drago Nikolic.
17 It is our submission that the Trial Chamber in this particular
18 case committed both errors of law and factual errors which affected the
19 judgement which entailed a conviction and strict sentences. We appeal to
20 this Chamber to remedy the errors committed and we -- in our submission,
21 the only appropriate outcome should be the acquittal of the appellant
22 under some counts of the indictment and in a reduction of his sentence.
23 Our oral arguments will be divided in six parts. The first part
24 consists in our position that the sentence pronounced by the
25 Trial Chamber is manifestly unlawful.
1 Part two consists, in our submission, that the Trial Chamber
2 erred by finding that Drago Nikolic -- finding that Drago Nikolic offered
3 new uniforms to members of the 4th Battalion to persuade them to take
4 part in the executions at Orahovac. I'm referring to grounds 13, 14, 20,
5 and 26.
6 Part three, the Trial Chamber erred by finding that Drago Nikolic
7 ordered Slavko Peric, a member of the 1st Battalion of the Zvornik
8 Brigade to guard the prisoners at Kula school, knowing that they would be
9 executed; these are grounds 23 and 24.
10 Part four, the Trial Chamber erred by finding that Drago Nikolic
11 called Sreten Acimovic, the commander of the 2nd Battalion, to pressurise
12 him into executing the order that had come from above; these are
13 grounds 15, 16, and 18 of Mr. Nikolic's appeal.
14 Part five, the Trial Chamber erred by finding that Drago Nikolic
15 was present at the execution site at Orahovac on the evening of the
16 14th of July, 1995; these are grounds 19, 22, and 25.
17 And finally, part six, the Trial Chamber erred by finding that
18 Drago Nikolic had knowledge that there was a massive killing operation
19 being carried out with genocidal intent and that through his interaction
20 with Beara and Popovic he was in a position to know of the genocidal
21 intent. This covers grounds 4, 6, and 23 of Mr. Nikolic's appeal.
22 Regarding the grounds of appeal 2, 3, 4, 5, 7, 8, 9, 11, and 12,
23 Mr. Nikolic stands by the arguments presented in his appeal brief and
24 other submissions and will -- these will not be expanded upon today.
25 Without any further delay, I will now give the floor to my colleague,
1 Mr. Stephane Bourgon to continue the introduction. Thank you for your
3 MR. BOURGON: Good afternoon, Mr. President. Good afternoon,
4 honourable Judges of the Appeals Chamber and good afternoon to everyone
5 in and around the courtroom.
6 Before I begin my submissions this afternoon, Mr. President, I
7 would like to say as a preliminary matter that yesterday I listened with
8 great care to the arguments of my colleague from the Prosecution in
9 response to Mr. Popovic's appeal. No doubt, Mr. President, the
10 Prosecution was impressive in repeating the judgement in a narrative
11 meant, of course, to impress the Appeals Chamber. But that's not my
12 point. My point, Mr. President, this afternoon is that in its
13 submissions yesterday, the Prosecution mentioned the name Drago Nikolic
14 no less than 20 times in conjunction, of course, with the gentlemen
15 called Beara and Popovic.
16 Well, Mr. President, this is one of the most important issues in
17 this case. Drago Nikolic was in no way close to Beara and Popovic during
18 the events in July of 1995, nor was he close to them before that period,
19 and he did not plan and co-ordinate the murder operation with them. At
20 best, Drago Nikolic did meet with Beara and Popovic, from whom he
21 received some instructions of a limited nature.
22 This, Mr. President, is one of the main errors that was made by
23 the Trial Chamber, as Drago Nikolic was tried, found guilty, and
24 sentenced by association with the security branch, and this is definitely
25 something that we wish to convince you otherwise during our arguments.
1 Moving on to my introduction, Mr. President. Last week I
2 attended the ADC Legacy Conference, during which Judge Moloto spoke, and
3 he said one of the most important duties of the Defence counsel is to
4 make the work of the Judges difficult. And I fully agree with him and I
5 do intend to make your work difficult today by highlighting issues that
6 go beneath the surface, that will force you to go and look deep into the
7 evidence, and that will force you, Mr. President, to assess the manner in
8 which the Trial Chamber committed numerous mistakes in this case.
9 Well, it's tempting to say did the Trial Chamber get anything
10 right? Well, it did. It did, Mr. President. The Trial Chamber did, on
11 a macro level, get many things right. Today, as a result of the
12 judgement, the victims know that men and combatants from the
13 12th Division of the ABiH, that is, the Army of Bosnia and Herzegovina,
14 who were in Srebrenica - I'm talking about those men and combatants who
15 did not make it to the area of the 2nd Corps where they were all
16 going - the victims know today that they were either killed in ambushes
17 or they were made prisoners only to be executed in five different areas.
18 That we know from the judgement.
19 As a result of the judgement, the victims know the locations,
20 they know where these people were executed, they know today about
21 Orahovac and Lazete, the killing site. They know about Petkovci and
22 Petkovci dam. They know about Kozluk and Rocevic. They also know about
23 the cultural -- Pilica cultural centre as well as the Branjevo Farm.
24 They know about these things. They even know about the reburial
25 operation and the secondary mass graves, an absolute horror story. Well,
1 in this regard, Mr. President, the Trial Chamber got many things right.
2 However, and as we say in French: "C'est là que le bât blesse."
3 Regarding the individual criminal responsibility of
4 Drago Nikolic, with all due respect for the Trial Chamber, it was mistake
5 after mistake after mistake. And this is the object of my arguments
6 today because, Mr. President, the victims and their families in this case
7 deserve better than the erroneous conclusions that were drawn on the
8 basis of some witnesses who lied before this Court.
9 If there's one thing that the Trial Chamber got right - and I'll
10 come back to this - it is the fact that Drago Nikolic did not harbour
11 genocidal intent. That's one of the findings I will also come back to.
12 But immediately thereafter, the Trial Chamber erred by saying that he was
13 aware of the genocidal intent of others and that he knew that this
14 massive execution operation was conducted with genocidal intent. This is
15 one of our grounds of appeal that we'll address at the end of my
17 For the rest, Mr. President, it is important to look at how the
18 Trial Chamber came to make such mistakes, such errors of law and errors
19 of fact, but mostly errors of fact grounded on a wrong interpretation and
20 assessment of the testimony of key witnesses.
21 At this point I would like to move into closed session,
22 Mr. President, with your leave.
23 JUDGE ROBINSON: Yes.
24 [Private session]
11 Pages 269-273 redacted. Private session.
6 [Open session]
7 THE REGISTRAR: We're back in open session for the record.
8 MR. BOURGON: I'm sorry. Mr. President, you've seen before you
9 the old lady, she's been looking at the Appeals Chamber and looking at
10 us. In 2005, I started this case with this slide and I'm going to finish
11 this case with the same slide.
12 We invited the Trial Chamber then to look behind the obvious and
13 obviously they did not. Now, I implore you, Mr. President, through our
14 arguments as they will be presented today, we hope that you will see that
15 the eye of the old is actually the ear, and that the nose is actually the
16 chin, and that you will see the young lady, and you will see the truth
17 and the merit to our arguments.
18 I move to the first part of my argument, the manifestly excessive
19 sentence imposed by the Trial Chamber.
20 Why do we begin with the sentence? It's quite unusual. You
21 don't see that very often, do you? Well, we do so simply because, first
22 of all, in our brief we did it this way; but secondly and more
23 importantly, because we wished to strongly emphasise the Trial Chamber's
24 errors when imposing a sentence of 35 years' imprisonment on
25 Drago Nikolic. This is a stand-alone ground, Mr. President, such that
1 even if every other finding made by the Trial Chamber were to stand at
2 the end of this appeal, we submit respectfully that the sentence must be
3 lowered significantly. Our detailed arguments to that effect can be
4 found in paragraphs 1 to 45 of our appellant's brief at ground number 1.
5 Today I will focus on three issues. First of all, the errors in
6 assessing the gravity of the crimes for which Mr. Nikolic was found
7 guilty. Secondly, the impact of Drago Nikolic's personal character on
8 the sentence, which led to other mistakes by the Trial Chamber. And the
9 fact that the sentence imposed is a marked departure from sentences
10 imposed on other accused in -- for the same crimes in similar
12 Moving on to the gravity, this will be addressed into three
13 parts: The time-period, the Trial Chamber erred in identifying the
14 time-period of Drago Nikolic's involvement; the Trial Chamber erred in
15 the importance of the contribution of Drago Nikolic during the murder
16 operation as well as his overall involvement in the Srebrenica events all
17 together; and the Trial Chamber, lastly, the third point, in assessing
18 the contribution of Drago Nikolic in comparison to others involved in the
19 same events.
20 First of all, in terms of the time-period, well, the
21 Trial Chamber committed a mistake when it found that Drago Nikolic was
22 involved in the JCE to murder from 13 July on the evening until 16 July
23 in the afternoon. From a plain reading of the Trial Chamber's findings,
24 the contribution of Drago Nikolic and his involvement in the murder
25 operation ended on 15 July in the morning. It ended -- the last event
1 was the alleged conversation he would have had with Acimovic, the
2 commander of the 2nd Battalion, whom he would have called to put pressure
3 on. We'll come back to this conversation which is actually one of our
4 arguments during this appeal. But for now let's assume that the
5 conversation took place. After this conversation, there is no longer any
6 involvement of Drago Nikolic in the murder operation. Early in the
7 morning he is on duty and he ends his shift or -- sorry, he doesn't end
8 his shift, he begins his shift early in the morning on 15 July. For sure
9 he begins his shift at 11.45, but according to the Trial Chamber he could
10 have begun his shift as early as 0440.
11 There is no finding from the Trial Chamber that he had any
12 involvement in Rocevic during the period from the 15th of July until the
13 16th. This is at judgement 1372. The Trial Chamber found that Nikolic
14 was not at Rocevic, 1370; and the Trial Chamber found that the last entry
15 in the log written by Drago Nikolic on the 16th of July was not linked to
16 the JCE. The Prosecution tried to say that this entry in the log-book -
17 and that is P377 at pages 148-149 - the Prosecution argued that this
18 entry meant that he was sending ammunition for the killings probably in
19 Branjevo Farm or Pilica cultural centre, and the Trial Chamber found that
20 this was not the case.
21 In the morning of 16 July he ended his shift. He is at Standard
22 barracks, the headquarters, the command of the brigade, but we don't know
23 what he's doing. What we know is that a little later he will go and have
24 lunch with his wife because it's her birthday. By the way, the
25 Trial Chamber missed that all together and this is in the statement of
1 Vida Vasic, 3D474, and also in the transcript at 25935. And thereafter
2 Drago Nikolic took part in the preparations for the funeral of his
3 cousin, and he took part in the funeral ceremonies the next day, thereby
4 completely extracting himself from the murder operation.
5 But right in the morning, in the morning of 16 July, when he
6 finishes his shift and he is replaced, and the evidence shows that he was
7 replaced that morning by another duty officer, he's at the brigade and he
8 is not involved. We all know what's happening during this time-frame at
9 the Kula school, the Branjevo Farm, and later in the afternoon at the
10 Pilica cultural centre. He's just not there. And these are based on the
11 findings of the Trial Chamber.
12 Second point is what about the overall contribution of
13 Drago Nikolic in the Srebrenica events and during the murder operation?
14 What did he do exactly? We'll begin with the Srebrenica events.
15 The Srebrenica events, I mean this case is not just about what
16 happened in Zvornik, it started before that. It started as a minimum
17 with the launching of the Krivaja 95, an operation that was planned
18 months before, 2 July a preparation order. Then brigades send troops as
19 part of the battle that is about to take place to capture Srebrenica.
20 Then we capture Srebrenica. And then we separate the men from their
21 families. And then we do the forcible transfer of the women, the
22 children, and the elderly. And then we make the members of the column
23 prisoners. And then the executions begin at Cerska Valley. And then
24 more executions at the Kravica warehouse, thousands of people. And then
25 the transport of the prisoners are taken to Bratunac.
1 My colleague in his last argument went out of his way to explain
2 how a security risk the presence of the prisoners in Bratunac was and how
3 at some point it was decided to take some of them to the Zvornik area.
4 And then we have the executions, five places: Orahovac, Petkovci,
5 Kozluk, Branjevo Military Farm, Pilica cultural centre. And then we
6 sweep the area to ensure that any Muslims left behind will be killed.
7 And then we got the Branjevo Farm survivors who disappear. And then we
8 got the Milici hospital prisoners who disappear. And then we do this
9 reburial operation.
10 This, at a minimum, and I cut short here is Srebrenica. Where is
11 Drago Nikolic in all of that? Well, here is where Drago Nikolic is:
12 He's there when he receives a phone call on the 13th of July, a phone
13 call that we are challenging. He's present at the school in Orahovac,
14 there's no point in denying this. Drago Nikolic said it himself when he
15 spoke to the Trial Chamber at the end of the trial. He was present at
16 some point in the day at Orahovac school. And then of course he was
17 involved - I put a circle around Kozluk and Rocevic because of those
18 conversations that we are challenging. Other than that, this is
19 Drago Nikolic.
20 We say the Trial Chamber erred in failing to see this. What
21 about his contribution during those -- that period? We already said that
22 it's limited from the 13th to the 15th. Well, during the 13th to the
23 15th, what he did during the 13th to the 15th, a junior officer, drawn
24 into specific aspects of an ongoing overwhelming operation that he
25 possessed limited knowledge of, that of a junior officer having no
1 influence whatsoever executing the orders issued by the chain of command
2 through his superiors and sometimes to those who are not even his
3 superiors, that of a junior officer who succeeded in extracting himself
4 from this nightmare. We say that the Trial Chamber erred in not seeing
5 the real contribution of Drago Nikolic to this operation.
6 For the rest, of course, we know that we are challenging his
7 presence at Orahovac at the killing site. We are challenging the thing
8 about the uniform. And we are challenging the conversations with
10 In terms of the gravity, of course, there is also the relative
11 contribution of Drago Nikolic in comparison with others. I will just use
12 two examples, the first one is Borovcanin and the second one is
14 Borovcanin, deputy commander of the special police brigade of the
15 MUP, involved and present in the separation of men from their families,
16 connected to the executions at the Kravica warehouse. According to the
17 Trial Chamber, he saw at least one busload of dead bodies on the site.
18 His acts in ordering his men to participate, according to the
19 Trial Chamber, constituted a substantial contribution to the crime of
20 forcible transfer. He's involved in the operations to block the column
21 and he had the authority and ability to influence these events. And as
22 we know, on the 15th of July, at midday, he meets with Dragan Obrenovic,
23 the Chief of Staff of the Zvornik Brigade, and Pandurevic, the commander
24 of the Zvornik Brigade, to talk about the upcoming operations to try and
25 block the column. He is much more involved than Drago Nikolic, and that
1 the Trial Chamber did not take into account, Mr. President.
2 Pandurevic, the brigade commander, involved in the attack and
3 capture of Srebrenica, involved in the situation in Zepa. He has direct
4 access to Mladic. He has direct access to Krstic. He's involved in
5 fighting the column and in preventing the Bosnian Muslims from reaching
6 the 2nd Corps of the ABiH territory. Now, as of 15 July in the morning,
7 the Trial Chamber found that this man learned what was going on in his
8 territory. He knows that thousands of people are located in the Zvornik
9 area to be killed. And then the story goes on, and I'm not going to get
10 involved in Pandurevic's story, that's not my case. Then of course he's
11 involved in the killing of the patients on the Milici hospital, the same
12 people who while they were in the custody of Drago Nikolic were kept
13 safe, that's a finding from the Trial Chamber. And most of all is the
14 fact that the brigade commander, if someone had the authority, the
15 capability, the ability, and the guts to do this and to stop this from
16 taking place, it was the brigade commander. When we look at the
17 contribution of Drago Nikolic and the contribution of others, this must
18 be assessed, Mr. President, and the Trial Chamber, in our view, failed to
19 do so.
20 I see I have five minutes, I go on to my next point in terms of
21 the impact of Drago Nikolic's personal character. I'll try to speed up a
22 bit so I can finish this ground tonight.
23 In terms of his character, well, we know that Drago Nikolic is a
24 second lieutenant, again I started with this in this case in 2005 and
25 I'll say it again, the lowest possible rank in the military scale as
1 compared to all those generals that have been charged and found guilty.
2 In terms of the character of Drago Nikolic, we have especially the fact
3 that he was not a graduate from the military academy, the fact that
4 nobody liked him or trusted him because he was not a real "officer." The
5 fact that because he was the chief of security and had to investigate on
6 his buddies that nobody liked him because nobody likes the security,
7 that's just part of the game when you have to investigate your
8 colleagues. The fact that the commander of the brigade, Pandurevic,
9 described Drago Nikolic as wearing a coat too big for him. He said the
10 security coat was much too big for him. And then Drago Nikolic, lastly,
11 was perturbed, to say the least, about what he was asked to do, even if
12 it was less than what the Trial Chamber thinks he was asked to do.
13 When he comes out of that meeting with Beara and Popovic on the
14 14th of July in the morning, he speaks to his driver, Bircakovic, and he
15 tells Bircakovic -- Bircakovic testifies, he says he was mad, he couldn't
16 believe what he was being asked to do for all those people coming in for
17 an exchange. Why not believe Bircakovic that this is what Drago Nikolic
18 said? Bircakovic was used, his testimony was used, in many other areas
19 where the Trial Chamber relied on Bircakovic's testimony. But for this,
20 no, he didn't say that because that would not be too convenient. Of
21 course, there's a link with the conversation the night before which we
22 will come back to.
23 Mr. President, I will stop here for today because I see the time
24 is running by. I just have one small argument to do tomorrow morning to
25 finish with this ground and that is simply the fact that this sentence,
1 35 years' imprisonment, even if everything else is true and stands after
2 this appeal, is a marked departure from sentences imposed on others. And
3 the two examples I will use tomorrow is Krstic, the big general at the
4 top of the operation, convicted of aiding and abetting for 35 -- and
5 sentenced to 35 years, and Jokic, someone who's still higher than
6 Drago Nikolic but lower in the food chain and who also involved in
7 sending engineering equipment to the killing sites and he's also a duty
8 officer at the brigade, and I will also come back on this, and he got
9 nine years. So 35 years is a marked departure which is motived by only
10 one thing and it's simply because he was a security officer.
11 That ends my submissions for today, Mr. President. Thank you.
12 JUDGE ROBINSON: Thank you. We adjourn and we'll resume tomorrow
13 at 10.00.
14 MR. ROGERS: Your Honours, before we do, may I just raise a
15 housekeeping question?
16 JUDGE ROBINSON: Yes.
17 MR. ROGERS: Just conscious of the order of things tomorrow, I
18 anticipate that we will conclude Mr. Bourgon's client's case tomorrow
19 morning, which will take us to Pandurevic. And it is possible, I think,
20 having spoken with Mr. Haynes, that we may get through that tomorrow
21 afternoon. My question for Your Honours is whether you would intend to
22 start the Prosecution's appeal before you had completed the Defence
23 appeals from Mr. Miletic. I would presume Your Honours would not intend
24 doing that, but I wondered if I might just clarify that with you now. It
25 will assist us greatly if Your Honours could confirm.
1 JUDGE ROBINSON: No, we wouldn't do that. We will finish --
2 MR. ROGERS: No, I didn't think you would. I just wanted to
3 check. Thank you.
4 JUDGE ROBINSON: Yes, so we're adjourned.
5 --- Whereupon the hearing adjourned at 4.45 p.m.,
6 to be reconvened on Wednesday, the 4th day of
7 December, 2013, at 10.00 a.m.