1 Thursday, 5 December 2013
2 [Appeals Hearing]
3 [Open session]
4 [The appellants entered court]
5 [The Appellant Miletic not present]
6 --- Upon commencing at 10.00 a.m.
7 JUDGE ROBINSON: I understand some members of the bar have been
8 asking about the timetable because we have admittedly chopped and
9 changed, but all in the interest of a smooth and expeditious hearing. So
10 they have asked that I settle the timetable for today. This is how I see
11 it: From 10.00 to 10.20, we have the Prosecution's response continuing;
12 then Mr. Pandurevic's reply 10.20 to 10.50; then we move into
13 Mr. Miletic's submissions, 10.50 to 11.15; a break 11.15 to 11.35; and
14 11.35 to 12.20 we continue, 45 minutes, with Mr. Miletic's submission;
15 lunch 12.20 to 1.50; in the afternoon session we have 1.50 to 2.40, the
16 continuation for 50 minutes Mr. Miletic's submission; 2.40 to 3.10, the
17 Prosecution's response; 3.10 to 3.30 a break; and then 3.30 to 4.45,
18 75 minutes the Prosecution's response continuing.
19 We have in hand a waiver in respect of Mr. Miletic's submission
20 for today's hearing.
21 So, Mr. Prosecutor.
22 Before you begin, may I ask you to just clarify your
23 understanding of the culpable link. If I'm not mistaken, the Defence is
24 saying that the failure of the Trial Chamber to address specific
25 directions is -- am I speaking -- I'm speaking to the wrong person.
1 MR. WOOD: Well, perhaps, Your Honour. Good morning,
2 Mr. President. My colleague, Mr. Milaninia, is best placed to handle
3 this as he dealt with the submissions yesterday.
4 JUDGE ROBINSON: Certainly, yes.
5 MR. MILANINIA: Yes, Your Honour, if I understand your question,
6 and please correct me if I'm wrong --
7 JUDGE ROBINSON: No, I haven't finished it yet.
8 MR. MILANINIA: Oh, my apologies. My apologies.
9 [Appeals Chamber confers]
10 JUDGE ROBINSON: Yes, well, I'll complete the question and it may
11 be answered at any time. It's -- as I said, my understanding is that the
12 Defence is saying that the failure of the Trial Chamber to address
13 specific directions is fatal, and you respond to that by saying that the
14 essence of specific directions, as you understand it from the Perisic
15 judgement, is a culpable link. So it doesn't really matter whether they
16 addressed it eo nomine, whether they addressed it explicitly, they
17 addressed it in substance by pointing to several instances where there
18 was this proximate relationship; is that correct?
19 MR. MILANINIA: Thank you for your question, Your Honour. And I
20 do think you encapsulate the point very accurately, and that is correct
21 and we believe that is a faithful reading of the Perisic appeals
22 judgement itself. In Perisic it does indicate at paragraphs 37 to 38,
23 where it first defines what specific direction means for the purposes of
24 it serving as an actus reus of aiding and abetting, in that it only
25 constitutes a culpable link between the acts of the accused and the
1 crimes that were perpetrated. And then it proceeds to say that in the
2 circumstances where the acts of the accused are proximate to the crimes
3 that explicit consideration of specific direction does not need to be
4 enunciated by the Trial Chamber, but that rather specific direction can
5 be implied by the other normative elements of aiding and abetting,
6 namely, knowledge and substantial contribution.
7 And, Your Honours, it is our submission that in this case, in
8 light of Pandurevic's proximity to the crimes, that it was absolutely
9 appropriate for the Chamber to find that he was convicting of aiding and
10 abetting on the basis of the normative elements of aiding and abetting,
11 and, therefore, under the facts of this case there would be no specific
12 direction problem.
13 JUDGE ROBINSON: Thank you.
14 MR. MILANINIA: Thank you, Your Honour.
15 JUDGE ROBINSON: You may continue.
16 MR. WOOD: Thank you, Mr. President.
17 Your Honours, we heard from General Pandurevic yesterday a litany
18 of excuses for his failures to exercise responsible command, none of
19 which show the Chamber's findings were unreasonable. He says at
20 transcript page 371 the Zvornik Brigade was a unit of uncommon size. One
21 wonders what size of unit would be small enough to fit this cramped view
22 of 7(3). In any event, that's good news for any commander who has
23 command of two brigades or an entire army. Pandurevic says, also at
24 transcript page 371, there was a very limited period of time between
25 Pandurevic's return to Zvornik and the conclusion of the killings.
1 Well, as the Chamber found, Your Honour, in regard to 7(3), all
2 Pandurevic needed to have done is issue a single, simple order. How much
3 time does it take to issue an order? How much time does it take to make
4 an inquiry regarding the sufficiently alarming information he had been
5 told? He also says given the paucity of information available to him,
6 also at paragraph [sic] 371. I'll point out, Your Honours, that
7 General Pandurevic never challenged the knowledge question in his appeal,
8 only whether he had command and effective control. And anyway, this only
9 illustrates a further example of his failure to exercise responsible
10 command. He had in front of him his Chief of Staff Pandurevic -- or
11 Obrenovic, who told him this information. He could have contacted
12 Nikolic to get further information. He could have contacted Jokic, the
13 man whom he knew was the source of the information. He did neither of
14 these things. Again, an illustration of his failure to exercise
15 responsible command.
16 He says:
17 "Very few Zvornik Brigade soldiers were actually involved in
18 assisting the operation," also at transcript page 371. Quite apart from
19 being irrelevant, Your Honours, it's also inaccurate. The murder
20 operation involved Zvornik Brigade assets from Pandurevic's communication
21 organ, his engineering service organ, his engineering company, his
22 logistics organ, including transport services. It involved his
23 Chief of Staff. It involved his security chief and his military police.
24 And it even involved his front-line soldiers from the very brigades that
25 the column was headed straight for. The Zvornik Brigade was central and
1 instrumental to the murder operation that was happening between the
2 13th and the 17th of July, 1995. I'd refer Your Honours to paragraph 119
3 of our brief for further details about that.
4 At transcript page 372, Pandurevic says he was completely engaged
5 in a military situation. This is another way of saying, Your Honours,
6 that he was too busy to issue even that single order that the
7 Trial Chamber said he could have done. When a commander can say he was
8 too busy to command, that's the end of IHL, Your Honours. But
9 Pandurevic's biggest excuse is his failed argument from trial that he'd
10 been robbed of his ability to issue a single order to his criminal
11 subordinates because they'd been taken over by the security
12 administration. The Chamber, quite properly, rejected this argument
13 based on its careful consideration of the evidence, Your Honours. This
14 evidence showed that the involvement of the security administration never
15 deprived Pandurevic of his exclusive right to command all of his units.
16 The Zvornik Brigade assets at schools and killing sites were there on
17 orders of their Zvornik Brigade superiors. The Chamber found that
18 Popovic and Beara were not able to issue them orders, and Pandurevic
19 mis-characterises the evidence in this regard.
20 Now, I'll remind Your Honours from the very start of the
21 Zvornik Brigade involvement in this murder operation, you had Nikolic on
22 a request from Popovic not acceding immediately but going to Obrenovic
23 who is the Zvornik Brigade command. He says: I have this request and I
24 seek leave to not participate as the duty officer but to take part in
25 this. And I seek an order that I be able to take military police platoon
1 to help me. This is clear evidence that the chain of command was working
2 properly, despite the presence of Beara and Popovic in the area,
3 Your Honours. And it is from this order, Obrenovic's order on the 13th,
4 that sets in motion the Zvornik Brigade's full involvement in the murder
6 Other evidence shows that any time, as I said, Zvornik Brigade
7 assets were at a place relevant to the killings or the detentions or the
8 transport, it was because they were ordered to go there by the
9 Zvornik Brigade command. The 1st and 2nd Battalion soldiers were sent to
10 Rocevic and Kula schools on orders sent from the Zvornik Brigade command,
11 that's at trial judgement paragraphs 509 and 527. Military police showed
12 up at Orahovac on 14 July on orders from Obrenovic, and the military
13 police commander, Jasikovac, trial judgement paras 471, 478, 481, and
15 Engineering company personnel and equipment were sent to Orahovac
16 on 15 July and to the Branjevo Farm on 16 July, on orders of Jokic, the
17 Zvornik Brigade duty officer.
18 Further, Your Honours, as the Trial Chamber found and as the
19 Prosecution has detailed in paragraph 117 of its response brief, Beara
20 and Popovic didn't issue orders to the Zvornik Brigade but oversaw
21 Zvornik Brigade troops only once their involvement was authorised by the
22 Zvornik Brigade command. And yesterday counsel for General Pandurevic
23 mentioned a number of paragraphs that he says shows that the Chamber
24 found Popovic ordered Zvornik Brigade soldiers to do things, but if you
25 look carefully at those, Your Honours -- Your Honours, you'll see that
1 the Chamber found nothing of the sort. And one of those in particular,
2 one of those paragraphs, is particularly illustrative of this. He cites
3 to paragraph 1132, this is the paragraph, Your Honours, in which the
4 Chamber finds that when Popovic ordered members of the
5 10th Sabotage Detachment to kill the prisoners at Pilica, they flatly
6 refused. That is not an indication -- in fact, it's a contraindication
7 that the security administration had the ability to issue orders in
8 regards to the murder operation.
9 As part of his submissions yesterday, Pandurevic's counsel also
10 introduced a new ground of appeal when he argued that the Trial Chamber
11 had failed to take into account evidence that he says is favourable to
12 him. This includes 7DP 00417 exhibit and the testimony of certain
13 witnesses, including Ostoja Stanisic. Your Honours won't find these
14 arguments in any of his written briefs. It's rather a bold attempt to
15 re-argue another failed trial argument by asking Your Honours to look at
16 specific bits of evidence in isolation, outside the entire record in
17 order to draw a conclusion favourable to him. You should reject this.
18 In any event, Your Honours, none of the evidence that he cited at trial,
19 that he cited in his briefs, that he cited yesterday succeeds in showing
20 that Pandurevic had lost the material ability to take the necessary and
21 reasonable measures to prevent his subordinates from committing or from
22 aiding and abetting and committing murder.
23 As the Trial Chamber found, those measures included issuing a
24 single order, which Pandurevic failed to do. Even if Pandurevic's
25 subordinates were acting on instructions from an outside commander, they
1 would have been obliged as his subordinates to report this to Pandurevic,
2 and that's from the witness Butler at transcript page 20829.
3 Pandurevic fails to show the Chamber's finding was one no
4 reasonable finder of fact could find.
5 To conclude, Your Honours, in paragraph 172 of his appeal brief,
6 General Pandurevic posits that it would be relatively easy to identify
7 cases in which a commander seeks to deny liability for command
8 responsibility on the grounds that he failed to exercise responsible
9 command. The Prosecution agrees with this statement, and we submit,
10 Your Honours, that you have just such a case before you. If Pandurevic's
11 arguments were accepted, this case would stand for the proposition that a
12 commander can cover his eyes, then plead blindness. It would stand for
13 the proposition that a commander can avoid command responsibility simply
14 by arguing that he was too busy to exercise responsible command or that
15 he was just following orders. It would stand for the proposition that a
16 commander who was a mere 40 kilometres away between the 4th and the 15th
17 and who has a demonstrated ability to both issue orders to his
18 subordinates and communicate with them at will had somehow nevertheless
19 lost his material ability to take the necessary and reasonable measures
20 to prevent those subordinates from committing crimes.
21 The whole point of international humanitarian law, Your Honours,
22 is to tell commanders that they cannot choose military expediency over
23 their legal duties to control their troops, to tell commanders in
24 precisely Pandurevic's position that they must exercise responsible
25 command over their subordinates, regardless of the tempo of combat or the
1 existence of contrary orders. The Prosecution asks that you reject
2 Pandurevic's proposed blueprint for impunity and dismiss his ground 2 in
3 its entirety.
4 This concludes the Prosecution's response to Pandurevic's appeal.
5 For the reasons stated here today and in our response brief, we ask you
6 to dismiss his entire appeal in its entirety, uphold his criminal
7 convictions, and increase his sentence consistent with the Prosecution's
8 appeal. I might add a note about counsel yesterday mentioned that he
9 would be seeking provisional release because he served two-thirds of his
10 sentence and he asked for the Prosecution's submissions on that. I will
11 just say that we will study that application once it comes and make our
12 response through the appropriate way.
13 Unless Your Honours have any questions, that concludes our
14 submissions on Pandurevic's appeal, our response.
15 JUDGE ROBINSON: Thank you.
16 Mr. Haynes.
17 MR. HAYNES: Thank you, Your Honour.
18 Before delving into the substance of the response, I'll just make
19 a remark about something which my learned friend said today at page 7,
20 line 2. In attempting to illustrate to you that subordinates of
21 Mr. Pandurevic had refused to obey the orders of Colonel Popovic, he
22 cited an instance involving members of the 10th Sabotage Detachment. I'm
23 sure his colleagues will tell him the 10th Sabotage Detachment is a
24 Main Staff unit and no part of the Zvornik Brigade, and thus his comments
25 to you this morning are utterly irrelevant.
1 Let me come to the substance of the response. Aiding and
2 abetting, post-Perisic, to convict any accused of aiding and abetting, a
3 Trial Chamber must be satisfied so that it is sure that he has -- he has
4 committed a purposeful act or an act specifically directed to assist the
5 principal offence. You can't just ignore that element of the offence,
6 you have to find it. You can, of course, find that it is proved
7 implicitly by the proximity of that act to the principal offence, but you
8 have to say so in your judgement.
9 The Trial Chamber in this case, of course, completely foreswore
10 the notion of specific direction or, as I shall suggest, purposeful act.
11 They never looked for specific direction. They never found specific
12 direction because they didn't think it was a necessary part of the
13 offence of aiding and abetting, and that is what lies at the heart of the
14 two convictions of Pandurevic for aiding and abetting offences. This is
15 particularly the case when one looks at the charges of aiding and
16 abetting murder because those offences are said to have been committed by
17 him by way of an omission. He omitted to protect or guard prisoners who
18 were his lawful responsibility, and by reason of that Popovic was able to
19 murder them.
20 Now, what post-Perisic the Trial Chamber have to find is that
21 Pandurevic purposefully omitted to guard or protect those prisoners, and
22 that in doing so he knew that that act assisted in the murder of them and
23 that, in fact, it was a substantial contribution to their murder. What
24 the Trial Chamber in this case found was that Pandurevic simply omitted
25 to protect or guard those prisoners, and that in doing so he knew that
1 that assisted in their murder and it was a substantial contribution.
2 What they didn't turn their minds to was whether he did so
3 purposefully or he did so with a specific direction. And let's spell
4 this out in practical terms what that means. In order to convict
5 Pandurevic of aiding and abetting murder by omission, the Trial Chamber
6 would have to have considered this, wouldn't it, that Pandurevic thought
7 about and knew of his obligation to protect and guard those prisoners and
8 he took a deliberate decision not to do so, knowing that that would
9 assist in their murder and that it was a substantial contribution to
10 their murder. That is the discussion that needed to take place and did
11 not. That is the finding there needed to have been and is not. And that
12 is why this is an insupportable conviction, because the Trial Chamber
13 never engaged in the process of discussing or finding what purpose
14 Pandurevic had in omitting to guard the prisoners and simply finding that
15 he omitted to do so, knowing that it might result in their murder by
16 Popovic is not consistent with the definition of the offence as we now
17 know it to be.
18 Can I turn to forcible transfer. In the Gotovina case at
19 paragraph 110, the Appeals Chamber found it impossible to convict of
20 aiding and abetting forcible transfer in the absence of a finding that
21 shelling civilian areas was unlawful. The situation is not synonymous,
22 but it is perhaps very approximate to that which the Trial Chamber faced
23 in the case of Vinko Pandurevic. In assessing his conduct as the
24 commander of Tactical Group 1, which was part of the Krivaja 95 force
25 which approached Srebrenica from the south, it formed the view that it
1 could not be sure that Pandurevic's actions were not consistent with the
2 pursuit of the legitimate military aims of that operation. That is the
3 only factor or the only action which the Chamber prayed in aid as being
4 the act which assisted in the unlawful forcible transfer of the civilian
5 population from Srebrenica. Again, absent a discussion that Pandurevic
6 had purposefully directed his lawful behaviour as the commander of
7 Tactical Group 1 towards the unlawful achievement of the forcible
8 transfer of the civilian population, such a conviction is unsupportable
9 because surely his lawful action of itself is not sufficient. The
10 Chamber had to go on to consider, address, and state what purpose he had
11 and that it was an unlawful one.
12 Again, I say, that's the discussion that's absent, that's the
13 finding that's absent, and that's why this conviction, too, of Pandurevic
14 as an aider and abettor must fail.
15 I will make two small observations, perhaps slightly off-piste.
16 The first is that the document you were shown yesterday with a small
17 highlighted passage, the interim combat report of the 16th of July, is a
18 very significant document in another respect. It was considered at great
19 length by the Trial Chamber in its judgement, it was attested to at great
20 length by Pandurevic, PW-168, and others. And in summary, it was held to
21 be a document in which Pandurevic had created a work of fiction to
22 justify the defiance of his orders and the allowing of passage to the
23 column of Muslim soldiers at Baljkovica. You will not find in the
24 judgement that the Trial Chamber found that a useful guide to what
25 Pandurevic's purpose was five or six days previous, quite understandably
1 given their assessment of the document, it's, as it were, honesty, and
2 its purpose. You should disregard that reference as being irrelevant to
3 this exercise.
4 The second observation I make is this: There were two tactical
5 groups which approached Srebrenica from the south. The 2nd, you can
6 probably guess, was called Tactical Group 2, and the commander of
7 Tactical Group 2 was a man called Major Trivic. Major Trivic was not
8 indicted for forcible transfer, although he did walk through the streets
9 of Srebrenica and he did attack the south of the town. He was a
10 Prosecution witness and he was not even given a warning against
11 self-incrimination before he commenced his evidence. He did, of course,
12 have the great good fortune that nobody dumped a load of prisoners in his
14 I'll move on to the question of command responsibility now. The
15 next set of submissions bear upon one of the questions that you have
16 asked; namely, the Trial Chamber's assessment of the period of the 4th to
17 the 15th of July and its apparent reliance on the evidence of PW-168. In
18 our submission, it's important to look at the whole judgement in this
19 regard, to look at what is effectively the judgement of the majority
20 which found that Pandurevic had command and effective control throughout
21 that period and the dissenting opinion of Judge Kwon, who found the
23 There is a conflicting approach to the evidence of PW-168. The
24 majority rely exclusively upon answers he gave during his examination by
25 the Prosecution. Judge Kwon, on the other hand, takes the broader
1 approach that one has to consider answers which he gave in
2 cross-examination. And I'll give you just one and it happens to be a
3 moment in this trial that, frankly, I'll never forget. It occurred in
4 this very room at about five to 7.00 one evening, and it was the moment
5 when PW-168 eventually conceded that Pandurevic did not command the units
6 of the Zvornik Brigade which Obrenovic commanded, and the transcript
7 reference is T 16193, closed session, the 10th of October, 2007. Now, of
8 course, when one looks at PW-168's evidence as a whole, he says a lot of
9 things and it's possible to take one or the other. But we submit that
10 Judge Kwon was right to take the approach he did. We're not suggesting
11 that, as it were, the answers in cross-examination have to be taken as
12 better, but when you've got a witness who says one thing and another and
13 then goes back to the first thing and then changes his answer again, the
14 question of the burden of proof comes into play. And we submit when you
15 take PW-168's evidence as a whole, it is to the effect that during the
16 period the 4th to the 15th of July, Pandurevic did not command the units
17 which were under the command of Obrenovic.
18 Now, yesterday, rather curiously I thought, counsel cited as
19 support for the suggestion that Obrenovic was not in full command the
20 fact that in assigning five or six, I think it was, military policemen to
21 Drago Nikolic and failing to report the matter to Pandurevic, Obrenovic
22 had made a mistake. And he cited a passage from the judgement in which
23 the Trial Chamber found that his acknowledgement of the mistake was
24 credible. Well, let's just pause for a minute there and think about
25 that. As a matter of fact, Obrenovic assigned five or six military
1 policemen to Drago Nikolic without informing his commander, plain and
2 simple. Looked at in that light, it is the clearest manifestation of
3 Obrenovic exercising complete control over the brigade. (redacted)
7 You will also find, if you look to the trial judgement, that
8 during that period Obrenovic was regularly passing orders from the corps
9 command to the subordinates in the brigade and exhibiting every
10 indication of being in total command.
11 The second objection or contrast between the majority and
12 Judge Kwon is the manner in which they dealt with the question of
13 Pandurevic's position as commander of Tactical Group 1. As commander of
14 Tactical Group 1, Pandurevic fell directly under the command of
15 General Krstic and answered to him and required from him on the
16 15th of July an order releasing him so that he could go back to command
17 the Zvornik Brigade. Judge Kwon correctly, in our view, understood that
18 as removing him from the chain between Krstic and Obrenovic and placing
19 him in a separate command chain from which he required an order of
20 removal. The majority mistaken, in our view, formed the view that
21 Pandurevic could concurrently remain in command of two units and fell in
22 the command chain between Krstic and Obrenovic. We submit that that is a
23 fundamental misunderstanding of the principle of unity of command.
24 I want to say just one thing about the repeated use of a phrase
25 by counsel. It was suggested yesterday that during cross-examination
1 about the time he had spent away with Tactical Group 1, Pandurevic had
2 said in evidence that he could have issued orders to the brigade but he
3 was too busy. That submission was not just inaccurate and misleading, it
4 was irresponsible. He said no such thing. In answer to the question at
5 the reference cited, he said hypothetically he could have issued orders
6 but that would have offended the principle of unity of command because
7 the recipients of the orders were at that time receiving orders from
9 Your Honour, that is the reply.
10 [Appeals Chamber confers]
11 MR. HAYNES: I'm sorry, I should have asked if you have any
13 JUDGE ROBINSON: Are you saying he never actually used the words
14 he was too busy?
15 MR. HAYNES: No, he didn't. He didn't say he was busy in that
17 JUDGE ROBINSON: Well, Mr. Prosecutor, is that so? I mean, we'll
18 check the records, of course, but is that a paraphrase on your part?
19 MR. WOOD: That is a paraphrase of the Defence's general
20 submission on this point, Your Honours, is that because of the duties
21 that he was doing, attacking Srebrenica between the 4th and the 15th, in
22 essence what he was saying is he was too busy to issue orders to his
23 subordinates, though he could have. And this is the -- this is what I
24 take -- what the Prosecution argues, summarising the essence of the
25 Defence arguments in its appeal and reply briefs.
1 JUDGE ROBINSON: Well, I think it's regrettable that you didn't
2 clarify that what you're saying was nothing more than a paraphrase of
3 what Mr. Pandurevic had said, otherwise I would really tend to agree that
4 it's irresponsible.
5 MR. WOOD: Yes, Your Honour, I never meant to leave that
6 impression and I apologise for that. Again, it is a summation, a
7 paraphrasing of the Defence general submissions, which is clear from
8 their appeal brief and their reply brief.
9 JUDGE ROBINSON: Thank you.
10 MR. HAYNES: Your Honour, I think I'd like to read into the
11 record the actual answer. What Pandurevic said was:
12 "I could have issued orders, but I didn't do so because I was not
13 in command of the brigade. That would amount to dual command, not single
14 authority, because Dragan Obrenovic had already issued them tasks and
15 they were in the process of carrying out and that would only create
17 Now, how you can paraphrase that to mean "busy," I simply do not
19 JUDGE ROBINSON: Thank you.
20 [Appeals Chamber confers]
21 JUDGE ROBINSON: We can now begin then with the submissions on
22 behalf of Mr. Miletic.
23 MR. WOOD: Your Honour --
24 JUDGE ROBINSON: Yes.
25 MR. WOOD: -- if we could have a brief five minutes, while
1 sitting here, just to change counsel, we would appreciate that.
2 JUDGE ROBINSON: Very well, yes. We will remain in court.
3 --- Break taken at 10.46 a.m.
4 --- On resuming at 10.49 a.m.
5 THE REGISTRAR: Your Honours, we're back in session.
6 JUDGE ROBINSON: Yes, counsel for Mr. Miletic to present her
8 MS. FAVEAU: [No interpretation]
9 [Interpretation] -- and some cases are divided in subparts. The
10 Defence maintains that all grounds have merit, in fact, in law and
11 recalls, as you noted yourselves, that the Prosecutor recognised the
12 merits of the six grounds of appeal relating to the conviction of Miletic
13 for crime against humanity, the forced transfer of men who crossed the
14 Drina River.
15 In its arguments, the Defence does not intend to repeat the
16 arguments put forward in its brief or its reply and it has no doubt that
17 the Appeals Chamber knows these arguments. We have decided not to set
18 out all of our grounds of appeal, although we maintain them all, but to
19 develop our arguments concerning certain errors made by the Trial Chamber
20 that are sufficiently serious that they invalidate the conviction of
21 Miletic in its entirety.
22 In order to be clear, I would like to stress from the beginning
23 that nothing in the judgement was properly established. To begin with,
24 the factual basis was not properly established, and I refer especially to
25 the crucial facts for the responsibility of Radivoje Miletic, the
1 drafting and interpretation of directive number 7, the humanitarian
2 situation in the enclaves, and the restrictions on humanitarian aid. The
3 constituent elements of crimes against humanity are not properly
4 established. The responsibility of Miletic is not established either.
5 The judgement is throughout in the part concerning Miletic marred by
6 mistakes of law and fact.
7 The Defence is aware of the fact that the Appeals Chamber will
8 grant credibility to the evaluation of evidence as done by the
9 Trial Chamber during the trial. But when the Appeals Chamber is aware of
10 the fact that the approach of the Trial Chamber has led to unreasonable
11 findings, it will evaluate whether the Trial Chamber erred in its
12 approach when assessing the evidence that may have led to a miscarriage
13 of justice, and this is the case here where all the key findings can be
14 only be qualified as suppositions, presumptions or speculations without
15 merit and arbitrary.
16 By way of introduction, I wish to draw your attention to the fact
17 that all the important documents in this case and, amongst others,
18 Directive 7, which is the key document in the Miletic case, were analysed
19 in light of posterior events. However, documents must be primarily
20 analysed in the context in which they were drafted. The subsequent
21 events can sometimes shed light on the significance of the documents, but
22 they can also distort the purpose of a document. And this is exactly
23 what occurred in this case, in particular as regards the interpretation
24 of this directive.
25 You have, no doubt, noted that almost all the grounds of appeal
1 of the Defence of Miletic invoke the violation of the principle of
2 presumption of innocence of the rule in dubio pro reo and the principle
3 according to which the burden of proof rests with the Prosecution. Here
4 I refer to grounds 3, paragraph 79; grounds 5, paragraphs, 155, 156, 184,
5 185, and 191; ground 6, paragraph 202; ground 7, paragraph 212; ground 8,
6 paragraph 220; ground 9, paragraphs 224 and 259; ground 10,
7 paragraph 263; ground 11, paragraph 335; ground 13 and 14, paragraph 360;
8 and ground 19, paragraph 407.
9 Indeed, when analysing the judgement it is rapidly evident that
10 the findings of the Trial Chamber challenged in the grounds of appeal
11 that I have just quoted do not match the findings to which the
12 Trial Chamber should have come, had it applied the standard that should
13 have been applied and that is beyond all reasonable doubt. While the
14 findings of the --
15 THE INTERPRETER: Correction of the interpreter.
16 MS. FAVEAU: [Interpretation] If the findings of the Trial Chamber
17 were not so unreasonable, I would be tempted to say that the Judges in
18 their intimate conviction handed out their judgement, a principle that is
19 well-known in continental law but is not applicable before this Tribunal.
20 Of course the Trial Chamber correctly posited the standard beyond all
21 reasonable doubt and asserted that it applied the principle in dubio
22 pro reo in the judgement in paragraphs 8 and 9. It also correctly
23 announced that the burden of proof rests with the Prosecution. Judgement
24 paragraph 8.
25 The fact the Chamber has correctly identified the standards that
1 it should apply does not mean that it then properly did apply these
2 standards. Furthermore, even if applicable law is properly applied, if
3 it is applied to facts that are not properly established the finding will
4 nonetheless be erroneous.
5 In this case, the Chamber has properly identified the standards
6 and principles applicable to the evaluation of evidence but it has
7 applied none of these standards and principles which has led to numerous
8 findings marred by mistakes of such gravity and scope that they have led
9 to a total miscarriage of justice. To illustrate the reversal of the
10 burden of proof, I would like to mention two examples that concerned the
11 central parts of the case. One has to do with the findings on
12 humanitarian aid and the other on the establishment of Miletic's role in
13 the drafting of the directive.
14 Concerning humanitarian aid, the Chamber made a judiciary finding
15 on a certain number of facts. Thus, it found the blocking of
16 humanitarian aid was part of the plan. Here I refer to the decision
17 relating to the judiciary finding of September 26, 2006, fact number 63.
18 This fact would have a decisive influence for paragraphs 766 and 767 of
19 the judgement. Yet, this fact was found in this case without the
20 Prosecution's having to provide any evidence. In this case, humanitarian
21 aid was one of the critical issues, yet the facts in case were observed
22 on the basis of findings adopted in cases where the passage of
23 humanitarian aid was only marginal, and I'm referring to the Krstic and
24 Blagojevic cases.
25 In some cases before this Tribunal, the Chambers have been
1 extremely cautious in admitting judicial notices. For instance, in the
2 Seselj case, here I refer to the decision handed down on
3 February 8th, 2010, paragraphs 13 to 25, and December 10th,
4 2013 [as interpreted], paragraph 13. The Appeals Chamber of the Rwanda
5 Tribunal has advocated extreme caution when it comes to judiciary notice
6 of facts that are critically important to establish the responsibility of
7 the accused. Here I refer to the decision handed down by the Appeals
8 Chamber in the Karamera case, handed down on June 16th,
9 2016 [as interpreted], paragraph 50. However, in this case the
10 Trial Chamber blindly accepted all the facts connected to humanitarian
11 aid that the Prosecution put forward.
12 In truth, legal or judiciary notice reverses the burden of proof
13 on the party that challenges the fact and who has to disprove it. In
14 this case, the Defence found itself in the position of having to
15 demonstrate that there were no unjustified restrictions and that the
16 restrictions on humanitarian aid were not part of the plan. Such an
17 obligation which was imposed on the Defence by the Trial Chamber on facts
18 that are important to determine the responsibility of the accused is
19 entirely incompatible with the rights of Defence.
20 The judicial findings of the facts on humanitarian aid clearly
21 led the Trial Chamber to adopt the findings that it never should have or
22 could have adopted if it had not had this judiciary finding beforehand,
23 and here I'm referring in particular to paragraphs 228, 766, and 767 of
24 the judgement.
25 The other example is even more disturbing. The Trial Chamber
1 found that a meeting took place on March 16th, 1995, at
2 President Karadzic's domicile, the signatory of directive number 7,
3 admitting that the directive that was transmitted to the units on
4 March 17th, 1995, may have been discussed at this meeting. This is
5 paragraph 1650 of the judgement.
6 The Trial Chamber then found, and here this is in the same
7 paragraph, 1650, that there are no conclusive -- there is no conclusive
8 evidence as to the topic of this meeting, that there is or is not any
9 conclusive evidence about the topic of this meeting is not a problem for
10 the Defence. The Defence gave evidence as to the fact that the meeting
11 took place and sufficient evidence so that the Trial Chamber could admit
12 that the directive might have been discussed. The Defence is not held to
13 provide conclusive evidence or evidence that makes it possible to
14 establish the facts beyond any reasonable doubt.
15 If we admit that the directive may have been discussed during the
16 meeting of March 16th, 1995, the meeting was not attended by Miletic, and
17 by refusing to take into account this meeting as a critical point for the
18 drafting the directive by ruling explicitly that there is no conclusive
19 evidence as to this point, the Trial Chamber has reversed the burden of
20 proof and of course has not applied the principle in dubio pro reo that I
21 would like to address now.
22 In its findings on humanitarian aid and the drafting of the
23 directive as well as the interpretation and the objectives of the
24 directive, the Trial Chamber has not only reversed the burden of proof,
25 it has consistently and blatantly violated the principle
1 in dubio pro reo. Thus, the Chamber has ruled that it has no conclusive
2 evidence regarding the moment when the humanitarian situation in the
3 enclaves was aggravated. However, it tied the deterioration of the
4 humanitarian situation in the enclaves with the directive. Judgement
5 paragraph 767.
6 Knowing that it did not have conclusive evidence and/or
7 sufficient evidence, the Chamber could have used its powers in
8 application of Article 98 of the Rules and ordered at its own initiative
9 the production of additional evidence. As it did not do so, it had to
10 respect the principle in dubio pro reo, but it did not do this either.
11 Without conclusive evidence, and, in point of fact, without any evidence
12 and without considering any evidence in favour of the accused, the
13 Trial Chamber thus connected the deterioration of the humanitarian
14 situation in the enclaves with the directive. This is in paragraph 767
15 of the judgement.
16 The Trial Chamber not only ignored the evidence in the file. It
17 also ignored international humanitarian law which applies to the passage
18 of convoys. The Trial Chamber found several abuses of humanitarian
19 convoys, transport of weapons ammunition for the Bosniak armed forces and
20 the use of humanitarian aid for the requirements of the Army of the ABiH.
21 This is in the judgement paragraph 197, 205, and 240.
22 However, instead of considering such acts illegal and in
23 contravention of Geneva Conventions, and here I refer specifically to
24 Article 70 of the I Protocol to the Geneva Conventions, as a possible
25 cause, and I would go so far as to say as an obvious cause for the
1 controls and restrictions that the Serbian authorities had imposed on the
2 convoys from the start of the war, so well before the drafting of
3 directive number 7, the Trial Chamber preferred to connect, without any
4 concrete or tangible evidence, the controls imposed by the Serbian
5 authorities to the directive.
6 In accordance with international humanitarian law, the parties
7 are not under the obligation to automatically and blindly authorise the
8 passage of humanitarian convoys. The power to refuse a humanitarian
9 action is not discretionary and must only be used exceptionally, but
10 denying passage to a convoy if it is justified is not forbidden. Yet,
11 the use of convoy humanitarian for military purposes in and of itself
12 justifies a denial of passage -- denial of the right to passage.
13 Before judging the restrictions imposed on convoys were planned under
14 Directive 7, they were part of an attack against a civilian population.
15 Judgement paragraph 766 and 767. The Chamber had to establish whether
16 these restrictions were illegal. Given that the evidence in this trial
17 show many abuses in terms of the convoys, the Chamber had to establish
18 for each restriction whether it was unjustified and illegal. Not having
19 done a specific analysis of convoy passages and restrictions that were
20 imposed, the Chamber should have found, in application of the principle
21 in dubio pro reo, that on the one hand the restrictions on convoys were
22 not connected to Directive 7, and on the other hand that they were not
23 unjustified and therefore not illegal.
24 Just as it established a connection without any evidence between
25 the restrictions imposed on the convoys with directive number 7, likewise
1 it connected without any concrete or tangible evidence the attacks on the
2 enclaves and, more broadly speaking, the attacks on the civilian
3 population to the directive, directive number 7. In paragraphs 760, 762,
4 and 1085 of the judgement, the Trial Chamber ruled that a generalised and
5 systematic attack made of several elements started against the population
6 of the enclaves with directive number 7, but the Prosecutor concedes that
7 the policy of the Army of Republika Srpska did not change after the
8 directive. Here I'm referring to transcript of December 10th, 2008,
9 pages 29489 to 29490.
10 And furthermore, the Chamber was not able to identify a single
11 change in the behaviour of the Army of Republika Srpska that would have
12 occurred subsequent to the directive.
13 The beginning of the attack was not identified. The exact period
14 during which the attack took place was not determined. The acts which
15 would have constituted the attack have not been established, nor even
16 defined. In international jurisprudence, all constituent elements of a
17 crime against humanity must be established in accordance with the
18 applicable standard. Thus, the International Criminal Court found that
19 the Chamber sees no reason when it comes to the administration of
20 evidence of crimes against humanity to apply to events present as
21 constitutive of the contextual element of the existence of an attack, a
22 standard more flexible than that that is applied to the other facts and
23 circumstances alleged in the case. Thus, each event that is evoked in
24 support of contextual elements must be proven in accordance with the
25 standard that is applicable to all the other facts. This is a decision
1 on the postponement of the hearing on the confirmation of charges in the
2 Gbagbo affair of June 3rd, 2013, paragraph 22.
3 In addition, all the incidents which according to the Chamber
4 constitute an attack against the civilian population may have a different
5 cause that is entirely unrelated to Directive 7. I would like to make it
6 clear that the Defence is not attempting to substitute its own
7 interpretation to the interpretation made by the Trial Chamber. The
8 Defence emphasises the fact that the Trial Chamber has systematically
9 neglected the principle in dubio pro reo by resolving any doubt in favour
10 of the Prosecution and by rejecting wholesale the arguments put forward
11 by the Defence.
12 For example, when it comes to sniper fire, beyond the fact that
13 these incidents had occurred from the beginning of the war, that their
14 frequency did not change after directive number 7, and that no link was
15 established between sniper fire and directive number 7, an entirely
16 different explanation can be provided for these -- for the shooting
17 insofar as they had actually taken place because their existence has not
18 been properly established. Even Momir Nikolic recognises the cause for
19 sniper fire is to be found in the behaviour of soldiers difficult to
20 control. This is in the transcript of April 23rd, 2009, pages 33066 to
21 33067. And this automatically means that such sniper fire was not part
22 of the directive or of a specific plan.
23 Concerning the shelling, the only instance of shelling that was
24 identified prior to July 1995 is the shelling of May 25th, 1995.
25 However, the Trial Chamber itself found that this shelling was carried
1 out in response to bombing of the Serb positions by NATO. This is in the
2 judgement at paragraphs 207 and 768. What is at stake here is not to
3 determine whether the bombing of May 25th, 1995, was or was not
4 militarily justified or conducted according to the rules of military
5 warfare. What is at stake is to determine whether this bombing can be
6 part of the lines set out by directive number 7. In fact, the
7 Trial Chamber provides us with the answer. This shelling is in response
8 to the bombing by NATO, and I would like to stress that the NATO bombing
9 was neither predicted nor predictable when directive number 7 was
10 drafted. However, having properly established the cause of said
11 shelling, that is to say the bombing by NATO, the Trial Chamber does not
12 seem to rule out the bombing or the shelling of May 25th, 1995, from the
13 acts which according to it would be a consequence of the directive.
14 Beyond the fact that the Trial Chamber has not properly
15 identified the bombing of Srebrenica and Zepa prior to July 1995, it also
16 refused to consider that the houses that may have been shelled during the
17 attack in July were military targets, although it found itself that the
18 Army of Bosnia-Herzegovina was using houses, hotels, and other civilian
19 buildings for military purposes. This is in paragraphs 246 and 774 of
20 the judgement.
21 Mr. President, is this a good time for a break?
22 JUDGE ROBINSON: It is indeed. We will resume at 11.36.
23 --- Recess taken at 11.15 a.m.
24 --- On resuming at 11.44 a.m.
25 JUDGE ROBINSON: Yes, please continue.
1 MS. FAVEAU: [Interpretation] The Trial Chamber was also misguided
2 when it determined that there was a systematic or generalised attack
3 which would have been directed against the civilian population. I wish
4 to draw your attention to the language used by the Trial Chamber or, more
5 specifically, to the expressions it used in describing the attacks that
6 the Army of the Republika Srpska is alleged to have conducted and which
7 would have constituted a systematic or generalised attack against the
8 civilian population.
9 The Trial Chamber ruled that in the enclaves prior to July 1995,
10 the civilian population was sometimes randomly targeted. This is in the
11 judgement at paragraphs 210 and 768. These two terms, "sometimes" and
12 "randomly," and here I am quoting literally the Trial Chamber,
13 "sometimes" and "randomly." These terms are entirely incompatible with a
14 generalised or systematic attack directed against the civilian
16 If the civilian population was randomly targeted, the attack was
17 not directed against the civilian population. However, for there to be a
18 crime against humanity whose attack is the civilian population, this must
19 be established. Furthermore, sporadic attacks, which the use of the term
20 "sometimes" seems to imply, are incompatible with a systematic or
21 generalised attack. The very language used by the Trial Chamber voids
22 any existence of a systematic or generalised attack prior to July 1995.
23 However, the Trial Chamber, in spite of the findings that I have
24 just quoted and that are incompatible with an attack against the civilian
25 population prior to July 1995 considers that the attacks against the
1 enclaves are part of a broader attack against the population of
2 Srebrenica and Zepa launched by directive number 7. Judgement
3 paragraph 775. In order to reach this conclusion, the Chamber had to
4 take out of context both the incriminating parts of directive number 7
5 and the orders of the Drina Corps, and I refer to Exhibits 5D106 and
6 P107, neglecting in so doing to evaluate the evidence in accordance with
7 applicable standards, although it had properly established these
8 standards. Indeed, directive number 7 did not contemplate the taking of
9 the enclaves. It did not contemplate attacks against the enclaves.
10 Directive number 7 preserved the concept of the enclaves, and here I
11 refer to the mission given to the Drina Corps to be found on page 11 of
12 Directive 7, Exhibit P5 and which reads as follows:
13 [In English] "The task of breaking up and destroying the Muslim
14 forces in these enclaves ..."
15 [Interpretation] Directive number 7 only reiterates a mission
16 that had been given to the Drina Corps a long time ago, namely,
17 separating the enclaves. The Trial Chamber, quite simply, refused to
18 take into account this part of the evidence. I'm referring to all the
19 evidence referred to in grounds -- our grounds of appeal 3.1 and 3.3.
20 Likewise, the Trial Chamber misconstrued Directive 7 and did not
21 appropriately interpret the orders from the Drina Corps, 5DP106 and P107.
22 It only emphasised the fact that these orders referred to the directives
23 and did not consider the fact that these orders also referred to the
24 situation on the ground and that these directives had been issued on
25 direct orders from the supreme commander, Radovan Karadzic.
1 The Trial Chamber summarily dismissed any evidence suggesting
2 that the attack on Srebrenica had been ordered by Radovan Karadzic, on
3 the basis of an order issued directly to the Drina Corps. It summarily
4 dismissed any evidence suggesting that the attack on Srebrenica on
5 July 1995 was a result of the continued attacks and relentless attacks of
6 the Muslim forces. It did not take into account Richard Butler's
7 testimony, the military expert of the Prosecutor, who repeatedly said
8 that the purpose of the attack had been changed by another order coming
9 from Radovan Karadzic, the order of the 9th of July, 1995.
10 Richard Butler transcript page 19749, 16th of January, 2008. And the
11 order of the 9th of July, 1995, is Exhibit P33.
12 The Trial Chamber also refused to accept the fact that Directive
13 7/1, Exhibit 5D361, was not a mere extension of Directive 7. The
14 Trial Chamber relied, amongst other things, on the order of the
15 Drina Corps issued on the 20th of March, 1995. Judgement paragraph 764.
16 How could the order of 20th of March shed light on a document, i.e.,
17 Directive 7/1 which was issued on the 31st of March. Quite clearly, the
18 Trial Chamber refused to take into account the evidence which was in
19 favour of the accused and establish its conclusion on basing them on the
20 presumption of culpability which constitutes a blatant violation of the
21 rights of the accused but also of the fundamental principles of any
22 criminal trial. Had the Trial Chamber appropriately analysed the
23 evidence, it should have concluded that the Army of Republika Srpska
24 abandoned or set aside the incriminating part of Directive 7, that the
25 attack on the enclaves cannot be associated with Directive 7, and that
1 the attack against the civilian population was, on the one hand, part of
2 the spillover of the military action started in July 1995, and, on the
3 other hand, the result of the order of the 9th of July, 1995.
4 Contrary to the conclusions of the Trial Chamber, the conclusions
5 it reached are all based on evidence on the record. The conclusions of
6 the Trial Chamber are arbitrary. Even had they been founded in any way
7 whatsoever, other possible interpretations also exist. The ones I have
8 mentioned are all plausible and reasonable and are, in addition, in
9 favour of the accused. Any doubt should have been resolved in favour of
10 the accused. In this case, however, the Trial Chamber first distorted
11 the evidence and then violated the fundamental principles of criminal law
12 to reach its conclusions and Radivoje Miletic's conviction.
13 In this case, we may note a certain inertia on the part of the
14 Trial Chamber by the way it refused to analyse some of the details and
15 did not take a reasoned and well-founded decision. The Trial Chamber,
16 after having found that the attacks on the enclaves had a two-fold
17 objective, one of which was legitimate in military terms, paragraph 774
18 of the judgement, had refused to rule on what was necessary and justified
19 in military terms and thus legitimate and what was not. Judgement
20 paragraph 775. The Trial Chamber may not shy away from their obligations
21 by adopting an easy conclusion. They must accurately and specifically
22 determine which facts are criminal and which are not. This distinction
23 is all the more important when it comes to determining the criminal
24 responsibility of an individual who was not present in the areas or in
25 the sites where the crimes were committed and who did not have all the
1 information on those particular actions. This was precisely the case of
2 Radivoje Miletic. Radivoje Miletic was a professional officer, member of
3 the VRS, and in his position and as part of his authority he performed
4 certain acts. To determine whether these acts per se are not illegal and
5 not criminal and whether or not there is a link between his acts and
6 criminal actions, the Trial Chamber should have taken the trouble to
7 establish which actions were criminal and whether Radivoje Miletic's
8 actions had any link whatsoever with criminal actions or if they aimed or
9 were aimed specifically at legitimate military actions.
10 The Trial Chamber refused to mark a distinction between
11 legitimate actions and illegitimate ones by refusing to mark this
12 distinction which is crucial in a criminal trial. However, it marked a
13 purely speculative distinction, an artificial one, and legally unfounded
14 one when it marked a distinction between the military and the civilian
15 part of the column in Srebrenica. That said, the Trial Chamber found
16 that this distinction existed but did not explain how the Serb officers,
17 those who were not on the ground like Radivoje Miletic, could be aware or
18 have knowledge of it. Specifically, it provided no explanation as to how
19 Radivoje Miletic could have had knowledge of the civilian component of
20 this column.
21 In addition, by marking this distinction, the Trial Chamber once
22 more ignored the provisions of international humanitarian law and moved
23 considerably away from the Tribunal case law. It also ignored the
24 evidence on the record, namely, the testimony of the military expert of
25 the Prosecutor, who stated that the column was formed with the military
1 objective of making a break through the Serb lines and reaching the
2 territory under the -- under Muslim control. Richard Butler, transcript
3 16th of January, 2008, pages 19816 and 19849.
4 According to the judgement, the military and the civilians were
5 not separated in the column. I would like to recall that the column had
6 a military objective and had not been formed spontaneously. A military
7 unit, the 28th Division of the ABiH, formed the essential part of the
8 column and, according to international humanitarian law, a military unit
9 is, in essence, a military objective. But this military unit, in
10 addition, was not like a peaceful river flowing past the Serb positions.
11 This column was engaged in fighting, fierce combat which led to a large
12 number of victims on both sides. The military expert of the Prosecutor
13 was extremely clear on this issue and qualified the column as a
14 legitimate military target by stating explicitly that what happened with
15 the column was a military act. Richard Butler, transcript
16 23rd of January, 2008, pages 20244 and 20245 and transcript of
17 30th of January, 2008, page 20374.
18 If the presence of a few military among the civilian population
19 may not affect the civilian character of the population, the presence of
20 civilians within a military unit who are engaged in the fighting does not
21 change whatsoever the military nature of the unit in question. Let me
22 remind you that the civilian nature of those men who joined the
23 28th Division in this column is more than questionable. And let me
24 recall that in the Kordic case the Appeals Chamber ruled that the
25 inhabitants who joined the soldiers to organise lines of defence were
1 termed combatants in the legal meaning of the term. Kordic appeal
2 judgement paragraph 441.
3 The situation is the same in this case and the inhabitants of
4 Srebrenica who joined the column took part in the hostilities and
5 contributed to the military strength of this column, i.e., the
6 28th Division of the Army of Bosnia and Herzegovina. They provided a
7 definite military advantage to the military actions undertaken by the
8 28th Division and may not be considered to be civilians. The same
9 problems arise in the passage of the judgement which deals with
10 Radivoje Miletic's responsibility. The Trial Chamber quite simply
11 refused to admit that Radivoje Miletic, officer of the
12 Army of the Republika Srpska, was doing his job with the sole purpose of
13 contributing to the good running of this army and the legitimate
14 objectives of the armed combat which prevailed at the time in
15 Bosnia and Herzegovina.
16 Your Honour, may we move to private session for a few moments? I
17 need to refer to a confidential decision handed down by the
18 Trial Chamber.
19 JUDGE ROBINSON: Yes.
20 [Private session]
17 [Open session]
18 THE REGISTRAR: Your Honours, we're back in open session.
19 MS. FAVEAU: [Interpretation] Instead of looking into the role
20 played by Radivoje Miletic and to analyse his conduct and his acts, the
21 Trial Chamber accepted without any critical analysis whatsoever the
22 testimony Manojlo Milovanovic, who was chief of the Main Staff of the
23 Army of Republika Srpska and the directive superior of Radivoje Miletic.
24 If we rely on the testimony of Manojlo Milovanovic, transcript of
25 hearings of 29th, 30th, and 31st of May, 2007, the latter was not aware
1 of anything and wasn't doing anything. He wasn't even reading the
2 documents. He communicated to the subordinate units. He was a mere
3 representative of -- at the staff of the Republika Srpska.
4 Manojlo Milovanovic never saw Directive 7. He never heard about it
5 before he actually came to testify before the Tribunal. It is clear for
6 anyone that Manojlo Milovanovic shies away from his own responsibility.
7 It is clear to anyone that Manojlo Milovanovic is lying. It is clear to
8 all, except for the Trial Chamber. And yet, had the Trial Chamber
9 accurately assessed Manojlo Milovanovic's testimony, the Trial Chamber
10 would have and should have set it aside.
11 The testimony of Manojlo Milovanovic is contradicted by a series
12 of documents. Manojlo Milovanovic drafted and signed a number of
13 documents himself based on Directive 7. In some of these documents he
14 refers to Directive 7 quite explicitly. He signed the plans for the
15 operations established on the basis of Directive 7, and, to top it all,
16 he took part in a meeting with President Karadzic, the meeting which
17 lasted for hours the day before the directive was communicated to the
18 corps, the communication which he did himself. All the documents I have
19 just quoted I referenced in our appeal brief, ground of appeal 20,
20 paragraph 412. During his testimony, Manojlo Milovanovic admittedly was
21 not shown these documents for the simple and sole reason that at the time
22 the Defence did not have these documents. The Prosecutor had these
23 documents and the Prosecutor took the originals from the archives,
24 therefore the Defence could not have access to these documents before the
25 Prosecutor communicated them. And this was done at a very late stage of
1 the trial.
2 The Defence could have called Manojlo Milovanovic back, but why
3 did it not do so? At trial it is not for the Defence to prove anything
4 whatsoever. That is a rule I have learnt and which has always been
5 applied to any criminal trial. That is a rule I believed in until the
6 judgement was handed down in this case. The documents were tendered into
7 evidence. They demonstrated very clearly and without any ambiguity
8 whatsoever that the witness, Manojlo Milovanovic, was not telling the
9 truth. The Prosecution admitted that Manojlo Milovanovic was not
10 credible. Final trial brief of the Prosecutor, paragraph 55; and closing
11 arguments, transcript of pages of 2nd of September, 2009, pages 34060.
12 It was only the Trial Chamber that accepted what
13 Manojlo Milovanovic was saying without any reservation whatsoever. By
14 accepting Manojlo Milovanovic's testimony, the Trial Chamber was
15 committing to handing down an erroneous judgement. Milovanovic was lying
16 shamelessly. He was lying on all the important issues, and, quite
17 honestly, he had no choice but to lie. He was lying to protect himself,
18 for he was the one who was the Chief of Staff, and it was for him to
19 advise Ratko Mladic, and it was for him to co-ordinate the actions
20 between the commanders and the deputy commanders. The whole running of
21 the staff relied on him, and it was he who was at the Main Staff when
22 the -- when Directive 7 was drafted. It's his directive and his drafting
23 of the directive which is the crux of the case as concerns
24 Radivoje Miletic. If Manojlo Milovanovic had correctly described which
25 role Radivoje Miletic -- what his role was, he should have admitted what
1 his role was, and that amounted to signing his own indictment.
2 Even though the Trial Chamber appropriately ruled that accomplice
3 witness testimony must be assessed with the greatest caution, judgement
4 paragraph 26, it did not identify anywhere in the judgement those
5 witnesses it deemed to be accomplices. It only identified those that
6 have been prosecuted and those that signed a plea agreement with the
7 Prosecutor. Manojlo Milovanovic is not part of this group and nothing in
8 the judgement demonstrated that his testimony was analysed with the
9 greatest caution. Quite the contrary, it seems that the Trial Chamber
10 believed anything and everything coming from this particular witness.
11 But you must know that the people in Bosnia and Herzegovina know the
12 Serbs, the Croats, the Bosnians, including the victims of those crimes
13 adjudicated in this case all know the name, the position, and the
14 substantial role played by Manojlo Milovanovic in the war that raged
15 between 1991 and 1995. They know Manojlo Milovanovic well and cannot
16 take his -- cannot take the judgement based on his testimony seriously.
17 Your Honour and Your Honours, the credibility of this Tribunal is
18 at stake regarding the assessment of Manojlo Milovanovic's testimony. By
19 granting a great deal of credibility to Manojlo Milovanovic, the Tribunal
20 is jeopardising its own credibility. Having blindly believed or -- the
21 testimony provided by Manojlo Milovanovic which is only a fabrication,
22 the Trial Chamber could not reach the adequate conclusions and fair
23 conclusions regarding Radivoje Milovanovic's [as interpreted]
24 responsibility. Clearly a great number of errors have been committed
25 when assessing his level of responsibility. Thus, the Trial Chamber was
1 unable to establish whether the Main Staff described the text -- the
2 final text of the directive -- of Directive 7. Judgement paragraph 1649.
3 In other words, nobody knows who has drafted the final version of
4 this directive, which automatically means that we do not know who has
5 drafted the incriminating passages of Directive 7. Let me recall that
6 the Trial Chamber adequately ruled that the directive contains, to a
7 large extent, legitimate military objective. Judgement paragraph 762.
8 Therefore, we are -- we have a document which contains legitimate parts
9 and illegitimate parts, and according to the Trial Chamber nobody knows
10 who drafted the illegal portions of the document. In a situation like
11 this, had the Trial Chamber appropriately applied the rule of beyond all
12 reasonable doubt, this sole finding of the Chamber should have been
13 sufficient and the Trial Chamber should have ruled that it cannot
14 establish the role played by Radivoje Miletic when it drafted
15 Directive 7. However, the Chamber repeatedly attributed implicitly and
16 explicitly the drafting of Directive 7, including its illegitimate
17 portions to Radivoje Miletic. Judgement paragraph 1716.
18 Directive 7 and its texts cannot automatically be attributed to
19 Radivoje Miletic. Radivoje Miletic is not the signatory of the
20 directive. The drafting of the directive and its content, i.e.,
21 Directive 7, can be attributed to Radivoje Miletic only if it is
22 established beyond any reasonable doubt and with a great deal of accuracy
23 that Radivoje Miletic did draft certain passages of the directive. These
24 portions would then have to be clearly identified with a great deal of
25 precision and beyond any reasonable doubt.
1 The Trial Chamber, based on the evidence admitted on the record,
2 was unable to establish what role Radivoje Miletic played in the drafting
3 of Directive 7. We never knew what the purpose of the directive was
4 which was transmitted to Radovan Karadzic for him to sign it. The
5 Trial Chamber accorded to weight to the fact that a meeting was held on
6 the 16th of March, 1995, at President Karadzic's and that the directive
7 may have been discussed at that meeting. I have already mentioned this
8 meeting, but I will get back to it, because if the Trial Chamber found
9 that the directive may have been discussed at that meeting, the
10 Trial Chamber should have drawn the appropriate consequences therefore,
11 and no reasonable trier of fact could have excluded the fact that the
12 text of Directive 7 had been modified during this meeting which
13 Radivoje Miletic did not attend.
14 Next, the Trial Chamber rightly concluded that
15 Manojlo Milovanovic forwarded the directive to the subordinate units,
16 judgement paragraphs 200 and 1650. However, it then reached without any
17 proof, without any explanation to the incomprehensible conclusion that
18 Radivoje Miletic informed the recipients of the general vision of the
19 political leaders. Judgement paragraph 1705. I have to confess that,
20 for me, this conclusion reached by the Trial Chamber remains a mystery.
21 The Trial Chamber did not even attempt to identify through what act
22 Radivoje Miletic would have informed the recipients of the directive, of
23 its content, nor did it identify when Miletic might have informed them.
24 It provided no rationale as to how it reached this totally arbitrary
1 What emerges quite strikingly from the reading of the judgement
2 is the Trial Chamber was not in a position to determine who drafted the
3 incriminating sections of Directive 7 and if Miletic played any role in
4 that. Faced with that situation, the Chamber had no other reasonable
5 option than to conclude that it could not consider the role of Miletic in
6 drafting Directive 7 as a contribution to the joint criminal enterprise.
7 And one is bound to recognise that if Miletic had no role in drafting the
8 incriminating portions of Directive 7, then he has no role in all the
9 events concerning Srebrenica, nothing whatsoever. In the same way that
10 it did not clarify the role of Miletic in drafting the directive, the
11 Trial Chamber was unable to elucidate the role of Miletic in approving
12 the convoys. The Chamber found that the evidence did not allow it to
13 fully understand the approval process for humanitarian convoys.
14 Judgement paragraph 221.
15 Being unable to clearly establish the role of the
16 Republika Srpska army in this procedure, the Chamber cannot claim that it
17 has established beyond all reasonable doubt what the role of Miletic was.
18 However, it is precisely what the Trial Chamber attempted to have us
19 believe. In respect of the other acts that might have constituted the
20 contribution of Miletic to the JCE, at no time did the Trial Chamber
21 correctly determine if these acts were destined to commit to the crimes
22 and to promote the common purpose of the criminal enterprise or if they
23 had another legitimate objective. However, this determination is
24 essential, like the determination of the accused's intent. In the
25 judgement rendered, the 30th of May, 2013, the Trial Chamber accuse --
1 acquitted the accused Stanisic and Simatovic because it could not
2 determine that their intent exceeded legitimate objectives notably, but
3 not only paragraph 2345 of the judgement rendered in this case
4 30th of May, 2013.
5 In this case, the Chamber was unable to find a single act by
6 Miletic directed towards the commission of the crimes ascribed to him.
7 It was unable to find one single act of Miletic directed at implementing
8 the common purpose of the JCE. And it was unable to find a single
9 element demonstrating a criminal intent on the part of Radivoje Miletic.
10 The Trial Chamber started from the erroneous supposition
11 according to which Miletic had knowledge of the plan. Judgement
12 paragraph 715. However, Miletic had absolutely no knowledge of any plan
13 whatsoever because such a plan did not exist prior to the
14 9th of July, 1995. However, on the 9th of July, 1995, Miletic was in
15 Belgrade, which the Chamber recognised. Paragraph 1665.
16 The order of the 9th of July, 1995, is the key element of the
17 tragic events around the enclaves. The 9th of July order, according to
18 the conclusions reached by the Chamber, changes the objectives of
19 military action. Judgement paragraphs 252 and 769. The 9th of July
20 order authorises Serbian forces to enter the town of Srebrenica and take
21 the enclave. The 9th of July order was given by President Karadzic. It
22 was addressed to the Drina Corps, and the only two individuals in the
23 General Staff who might have seen it were Generals Tolimir and
24 Milan Gvero. Radivoje Miletic has no link whatsoever with that order.
25 He's not at the General Staff when that order is issued. He knows
1 nothing of the new objectives of the Republika Srpska army. He doesn't
2 know that the enclave is going to disappear and that the Muslim
3 population was going to end up on the territory under Serbian control.
4 He knows nothing of that. The Trial Chamber recognises that Miletic was
5 not at the Main Staff in the period between 7 to 11th of July, 1995.
6 Judgement paragraph 1666.
7 But for the Chamber, this fact is of no importance. However,
8 it's unthinkable that Radivoje Miletic, who was unaware of the major
9 events unfolding between the 7th and the 11th of July, 1995, who during
10 that period is on leave in Belgrade, was able to play an important role
11 in the taking of Srebrenica.
12 All Radivoje Miletic's acts were performed as part of his regular
13 duties. All acts of Miletic were legitimate and justified and none of
14 these acts had any link with the criminal activities committed by certain
15 individuals during the military activities around Srebrenica and Zepa.
16 In fact, the Trial Chamber confused belonging to the Republika Srpska
17 army with belonging to a joint criminal enterprise. The Republika Srpska
18 army is not a JCE, and the mere fact of belonging to an army, including
19 to that of the Republika Srpska, can in no way constitute involvement in
20 a JCE. Equally, the fact that Miletic had contacts with certain members
21 of the JCE does not constitute a sufficient basis to conclude that he
22 himself belonged to such an enterprise. The concept of the JCE does not
23 allow one to conclude on the guilt of the accused on the basis of a mere
24 association. However, it's precisely what the Trial Chamber did and
25 which clearly constitutes an error of law in violation of Article 7(1) of
1 the Statute.
2 Indeed, the approach adopted by the Trial Chamber tends towards
3 an objective responsibility inadmissible under criminal law. The
4 Trial Chamber is in no way interested in the intent of Radivoje Miletic.
5 It starts from the principle that he is guilty because a crime has
6 occurred. Thus, for the Trial Chamber the directive notes the
7 discriminatory intent of the Bosnian Serbian forces. Judgement paragraph
8 1003. The discriminatory intent cannot be collective as the conclusion
9 of the Chamber seems to indicate; it must be individual. However, the
10 directive, if it notes a discriminatory intent, can only note the
11 discriminatory intent of the person who has devised and drafted it.
12 However, we do not know whether Miletic took part in drafting the
13 sections that can be understood as discriminatory.
14 JUDGE ROBINSON: Counsel, I'm sorry to interrupt. We are going
15 to take the break at half past 12.00, unless you propose to conclude very
17 MS. FAVEAU: [Interpretation] Your Honour, I believe I have
18 another 20 minutes to go. It might perhaps be simpler to end if that's
19 agreeable to you.
20 [Appeals Chamber confers]
21 JUDGE ROBINSON: Well, if you can last for another 20 minutes
22 without lunch, then we'll just continue.
23 MS. FAVEAU: [Interpretation] Thank you, Your Honour.
24 Furthermore, once again, the Chamber omitted the fact that the
25 doubt was to benefit the accused. Had the Chamber correctly applied the
1 fundamental principles of criminal law according to which all doubt must
2 benefit the accused and had it assessed the evidence in accordance with
3 the standard of beyond all reasonable doubt, it should have reached
4 conclusions different to those it reached in paragraphs 1704 to 1722,
5 1725 to 1731, and 1734 to 1735 of the judgement. The only reasonable
6 conclusion on the basis of the evidence in the file is that
7 Radivoje Miletic had no criminal intent and he in no way contributed to
8 the criminal acts around Srebrenica and Zepa.
9 The Trial Chamber did not find Miletic guilty only for the
10 commission of crimes as part of the JCE. It also convicted him for
11 planning. Judgement 2108. It's clear that the Chamber committed an
12 error in law by convicting Miletic for planning because those same acts,
13 which according to the Chamber constituted Miletic's contribution to the
14 JCE, were used to find him guilty for planning and commission. In
15 accordance with Appeals Chamber case law, in such a case commission
16 encompasses fully criminal conduct and the person found guilty of
17 committing a crime is not for having planned that same crime. I refer to
18 the ruling of this Tribunal in the Milosevic case, paragraph 271, and the
19 ruling of the ICTR in the Kamuhanda case, paragraph 77. But over and
20 above this error of law, the Trial Chamber once again ignored all
21 principles of criminal law when it found in paragraph 1716 that Miletic
22 played a central role in the forced displacement plan of Muslims from
23 Srebrenica and Zepa. Of course, to support its argument, the
24 Trial Chamber referred to the role of Miletic in drafting the directive.
25 The role that was never correctly ascribed to him. It remains
1 unexplained and inexplicable how the Chamber could reach -- reasonably
2 reach such a conclusion, how the mere participation of Miletic in
3 drafting the directive without it being established which sections he
4 might have drafted, and what were indeed his words might constitute the
5 planning of criminal acts.
6 In respect of the Potocari murders for which Miletic was
7 convicted as part of the JCE 3, the Chamber also committed many errors,
8 both in fact and in law. Firstly, the Trial Chamber did not correctly
9 establish who was the prime perpetrator of those murders. According to
10 paragraph 31 of the indictment, the murders were said to have been
11 committed by members of the Republika Srpska army or by members of the
12 Serbian police. The Trial Chamber, first of all, found that these
13 murders had been committed by members of the Serbian forces of Bosnia.
14 Judgement paragraphs 359 and 361. It also stated that the Bosnian Serb
15 forces comprised forces of the Republika Srpska army and the police.
16 Judgement paragraph 102. But when it assessed the responsibility of
17 Miletic, the Trial Chamber suddenly found that those murders had been
18 committed by the forces of the Republika Srpska army. Judgement
19 paragraph 1727 and 1735.
20 It's obvious that the Chamber errs in the facts without reaching
21 a firm conclusion that would allow us to establish responsibility for
22 these murders. No one knows under what conditions the nine men were
23 killed in Potocari. No one knows who kills them. In fact, we don't even
24 know whether the murder of these men can be linked to the forces of the
25 Bosnian Serbs. Of course, each case is unique and each Chamber rules and
1 judges on the merits of the evidence admitted, but the Tribunal must
2 display a measure of consistency in its judgement concerning the same
3 events and the same facts. The criminal responsibility is individual,
4 but the factual basis should be identical. The reverse could well
5 undermine the credibility of the Tribunal. However, in this particular
6 case the Chamber ascribed and blamed the Serbian forces for these
7 murders. These same murders two years later were not ascribed to the
8 Serbian forces in the Tolimir case, Tolimir judgement paragraph 308,
9 12th of December, 2012.
10 Furthermore, it's entirely unclear how and why the Potocari
11 murders might be the predictable and natural consequences of the JCE
12 aimed at the forced transfer. And on this point I refer to the
13 dissenting opinion of Judge Kwon, paragraphs 22 to 25.
14 I also draw your attention to the fact that Judge Kwon considered
15 that there was no proof that Miletic deliberately took the risk of the
16 murders at Potocari, dissenting opinion paragraph 28. I would add that
17 it remains unclear how Miletic might have planned these murders since he
18 did not even know that Serbian forces were going to enter Srebrenica and,
19 even less, that the population of Srebrenica would be in Potocari.
20 I'd now like to draw your attention to certain specific errors of
21 law committed by the Trial Chamber. First of all, the Chamber exceeded
22 the scope of the indictment and assumed the role of the Prosecution. The
23 obligations of the Prosecution linked to presenting the facts and crimes
24 against humanity for which the accused is blamed must be interpreted in
25 accordance with Articles 21(2) and 22(4)(b) [as interpreted] of the
1 Statute. Tribunal case law requires therefore that the Prosecution must
2 present the essential facts that underpin the charges set out in the
3 indictment. Consequence, an indictment must set out in a sufficiently
4 detailed manner the incriminating facts in order to clearly inform the
5 accused of the charges directed against him so that he can prepare his
7 The Prosecutor did not include the column or the persons in the
8 column that left Srebrenica on the evening of the 11th of July and the
9 forced transfer.
10 Your Honour, could we now move into private session because I
11 would like to refer to a confidential report, please.
12 JUDGE ROBINSON: Yes.
13 [Private session]
5 [Open session]
6 THE REGISTRAR: Your Honours, we're back in open session.
7 MS. FAVEAU: [Interpretation] As a consequence, all reference to
8 the column in the judgement and any link made by the Trial Chamber
9 between the fate of this column and Miletic is legally flawed. On this
10 point I would draw your attention to the dissenting opinion of
11 Judge Kwon, who considered that the movement of the column was not
12 properly alleged in the indictment and that any inclusion of the said
13 column in the forced transfer constitutes an inadmissible broadening of
14 the alleged charges, dissenting opinion paragraphs 7 to 12. We consider
15 also that the crime against humanity, persecutions consisting of inhumane
16 acts and terrorising the population was not properly litigated in the
17 indictment. These acts were not part of the common purpose and therefore
18 cannot be committed as part of JCE 1. In fact, in paragraph 83 of the
19 indictment under the little JCE 3, extended form, the Prosecution clearly
20 indicated that the various criminal acts, such as the various
21 opportunistic murders and persecutions reported in paragraphs 31 and 48
22 of the indictment fell within the extended form of JCE. Paragraph 83 of
23 the indictment leaves no doubt that the acts of persecution alleged in
24 paragraph 48 of the indictment, with the exception of forced transfer,
25 were part of JCE 3, in fact. The Trial Chamber seemed also rather
1 confused in determining the crime of persecution. If the Chamber made a
2 distinction between persecutions that would have been made up of forced
3 transfer and those made up of murders in paragraph 1735 of the judgement,
4 it completely forgot the said distinction in paragraph 2108 of the
5 judgement. And to cap the confusion, in paragraph 2108 of the judgement,
6 the Trial Chamber found that Miletic planned as part of the persecutions
7 the murders that previously were but a natural and predictable
8 consequence of the common plan. It's difficult to be even more
10 As regards form three of JCE, the Defence is of course well aware
11 of the extensive case law of this Tribunal. The Defence, however,
12 considers that in light of case law of other international courts that
13 rejected JCE 3, the Tribunal should revise its approach. Also, the
14 Defence position is essentially based on the fact that the Tribunal
15 referred to the Statute of the International Criminal Court when it
16 established the existence of the theory of JCE in customary international
17 law, and I refer here to the Tadic ruling, paragraphs 221 and 222.
18 However, the ICC rejected the JCE theory. I refer to the Lubanga
19 and Katanga rulings. As Defence considers that the persecution crime was
20 only pleaded in the indictment as part of JCE 3 and in spite of the
21 confusion in the judgement, it seems that Miletic was convicted of
22 persecutions committed by the murders on the basis of JCE 3. I'd like to
23 draw your attention to relatively recent decision by the
24 Special Tribunal for Lebanon. The STL is one of the few international
25 courts that accepts JCE 3. The Appeals Chamber of this Tribunal held:
1 In international law, when a specific intent is necessary in order to
2 establish a crime dolus specialis, the elements are only met and the
3 accused may only -- found guilty if it is demonstrated beyond all
4 reasonable doubt that he specifically intended to reach the objective in
5 question. That is, that he had that specific intent. A difficulty arose
6 from the fact that in order to convict an individual under a JCE 3, the
7 accused must not share the intent of the prime perpetrator, which leads
8 to a legal anomaly. If the responsibility for JCE form 3 were to apply,
9 a person could be convicted as a co-perpetrator for a crime as part of a
10 specific intent without indeed having that required specific intent. The
11 STL included that the best approached involves avoiding a conviction on
12 the basis of JCE 3 of crimes requiring a specific intent. Challenge on
13 applicable law rendered by the Appeals Chamber on the 16th of February,
14 2011, paragraph 248.
15 Persecution requires specific discriminatory intent and, in my
16 view, would be incorrect to convict anyone for this crime on the basis of
17 JCE 3, which by definition excludes all specific intent.
18 Your Honour, Your Honours, we consider that the errors committed
19 by the Trial Chamber, that they are of a scale such that they totally
20 invalidate the judgement in its entirety. All the majority conclusions
21 regarding Miletic were taken in violation of the principle in dubio
22 pro reo. None meet the standard of beyond all reasonable doubt and
23 consequently the only reasonable conclusion in this case is the acquittal
24 of Miletic. We therefore respectfully ask the Appeals Chamber to reverse
25 the judgement in its entirety, to quash the conviction, and to acquit him
1 on all counts. As regards the submission regarding sentencing, on
2 grounds 24 to 27, they are secondary because we are convinced that
3 Miletic be acquitted. We'd just like to draw your attention to the fact
4 that the Trial Chamber committed errors even in this section. These
5 errors are notably set out in our grounds 24 to 25. I also refer to
6 Judge Kwon's dissenting opinion, paragraphs 68 to 74.
7 Finally, and I'll end with this, in our ground 28 we requested
8 that the judgement in its entirety be made public. The purpose of
9 publicising this is to ensure judicial oversight by the public.
10 Publicising is aimed at safe-guarding the rights of the accused, but it's
11 no less important for the victims. Publicising the full judgement with
12 all its reasons is all the more important in the setting of this
13 Tribunal, whose prime task is certainly to render justice but whose
14 mandate is closely linked to restoring and maintaining peace and
15 international security on the territory of the former Yugoslavia. It's
16 obvious that the confidential judgements serve neither the interests of
17 peace nor the interests of justice.
18 I thank you.
19 JUDGE ROBINSON: Thank you very much.
20 I am to say that I have issued a redaction order for the
21 transcript lines 14.24 to 15.12.
22 We'll take the adjournment now and resume at 2.15.
23 --- Luncheon recess taken at 12.46 p.m.
24 --- On resuming at 2.17 p.m.
25 JUDGE ROBINSON: Yes, counsel for the Prosecution.
1 MS. GOY: Good afternoon, Your Honours. My name is Barbara Goy
2 and I'm appearing on behalf of the Prosecution in the response to
3 Mr. Miletic's appeal, together with my colleagues Laurel Baig and
4 Giulia Pinzauti.
5 In the last three days, Your Honours have heard mostly about the
6 murder operation, the joint criminal enterprise to murder. Today's
7 appeal relates to the joint criminal enterprise to forcibly remove the
8 populations from Srebrenica and Zepa.
9 In our written response to Miletic's appeal, we have followed the
10 order of his grounds of appeal. In our oral response today, we intend to
11 proceed differently. In order to orientate Your Honours with regard to
12 the different set of facts, I will first give a short introduction to the
13 Trial Chamber's findings in relation to the JCE to forcibly remove which
14 are relevant to this appeal. I will then proceed to address some of
15 Miletic's challenges in relation to the execution of the JCE to forcibly
16 remove and address the legal issue of JCE 3.
17 After that, my colleague Laurel Baig will address Miletic's
18 challenges in relation to his individual criminal responsibility under
19 JCE 1 and JCE 3. For the rest of Miletic's challenges, we are relying on
20 our written submissions. This also applies for the grounds in relation
21 to the indictment which counsel addressed today. We have set out in our
22 response brief why the pleading is not defective. This is an argument
23 that is easier to follow on paper, therefore unless we can assist
24 Your Honours with specific questions in relation to the indictment
25 issues, we rest on our written submissions.
1 Your Honours, the Trial Chamber found that the Bosnian Serb
2 political and military leadership, including Radivoje Miletic, shared a
3 common plan to forcibly remove the Bosnian Muslim populations from
4 Srebrenica and Zepa. This common plan came into existence, at the
5 latest, with the issuance of Directive 7. Your Honours will remember
6 that Directive 7 which was drafted by Miletic and which was issued in
7 March 1995 set out the goal for the Drina Corps, and I quote:
8 To "create an unbearable situation of total insecurity with no
9 hope for survival or life for the inhabitants of Srebrenica and Zepa."
10 That's Exhibit P5, paragraph 5, page 10.
11 The common plan to remove the populations from the two enclaves
12 was implemented through the restrictions of humanitarian aid and UNPROFOR
13 resupply to the enclaves, as well as through sniping and indiscriminate
14 shelling of civilians, and the full-scale indiscriminate and
15 disproportionate military attacks on the enclaves in July 1995. These
16 measures caused a humanitarian crisis for the Bosnian Muslims in
17 Srebrenica and Zepa. The civilian population fled Srebrenica due to
18 these conditions.
19 Starting on 10 July 1995, Bosnian Muslims, mostly women,
20 children, and elderly, fled on foot to Potocari. On their way, they were
21 shelled and sniped at. In Potocari, 20.000 through 30.000 faced an
22 atmosphere marked by panic, fear, and despair. The humanitarian
23 situation that had been dire became catastrophic and unbearable. There
24 were instances of physical and mental abuse, and the people had to
25 witness how their protection, DutchBat, was disabled by the Bosnian Serb
1 forces. The people further had to endure a painful separation process.
2 Women, children, and elderly were separated from the men and bussed out
3 of the enclave.
4 While the women, children, and elderly mostly made their way to
5 Potocari, up to 10.000 men from Srebrenica gathered in Susnjari village
6 on the edge of the enclave on the evening of the 11th. They feared that
7 they would be killed if they remained in the enclave. Around midnight,
8 the men started moving together with members of the ABiH in a column
9 towards ABiH-held territory in the north. The column was predominantly
10 civilian with approximately one-third being armed. Having bussed the
11 Bosnian Muslim women, children, and elderly out of Potocari, the VRS
12 proceeded to Zepa. In a coercive atmosphere, so-called negotiations took
13 place to discuss the transportation of the Bosnian Muslim population out
14 of Zepa. Every time the negotiations did not produce the desired result,
15 the VRS responded by escalating attacks on the enclaves, including
16 targeting civilians. News about the fate of the Bosnian Muslims from
17 Srebrenica began circulating and added to the anxiety. Around 4.000 to
18 5.000 Bosnian Muslim civilians and wounded were transported out of Zepa.
19 In total, tens of thousands of Bosnian Muslims were displaced.
20 In addition to the crimes against humanity of forcible transfer
21 as other inhumane acts and persecution based on forcible transfer, this
22 common plan also comprised terrorising and cruel treatment, cruel and
23 inhumane treatment as persecution.
24 I will respond today to three of Miletic's challenges raised
25 during oral argument in relation to -- to relate to the implementation of
1 the JCE to forcibly remove: First, the primary challenge, that the
2 Chamber erred when finding that the humanitarian crisis was based on
3 Directive 7, which Miletic drafted; and second, the existence of a
4 widespread or systematic attack against the civilian population and the
5 fact that the forcible transfer of the civilians in the column was part
6 of that attack against the civilian population; and third, the legal
7 question of joint criminal enterprise 3 in relation to specific intent
9 Miletic's main challenge is that the events on the ground which
10 caused the humanitarian crisis, the convoy restrictions and the military
11 attacks, were not based on Directive 7. I will start with the convoy
13 The Chamber was reasonable to find that aid supply in the
14 enclaves decreased significantly at least from June 1995 based on convoy
15 restrictions by the VRS which implemented Directive 7. That is trial
16 judgement 767. Miletic argues in his ground 5 that the convoy
17 restrictions were entirely legal and justified and were not linked in any
18 way to Directive 7. He further disputes the decrease in aid as such and
19 that the VRS was responsible for it.
20 The Chamber found that at least from June 1995, aid supply
21 decreased significantly in the enclaves, resulting in a very dire
22 humanitarian situation.
23 Counsel for Miletic today again argued that the Trial Chamber's
24 finding is erroneous because the Trial Chamber relied on adjudicated
25 facts. Your Honours, the Chamber --
1 JUDGE ROBINSON: Counsel, I'm sorry to interrupt you, but there
2 appears to be a difficulty with keeping pace with your pace.
3 MS. GOY: I apologise.
4 Counsel for Miletic has argued today that the Trial Chamber's
5 finding that aid decreased significantly from at least June was erroneous
6 because the Trial Chamber relied on adjudicated facts. Your Honours, the
7 Chamber in this case properly took notice of adjudicated facts. The
8 Appeals Chamber in Karemera in the decision on Prosecutor's interlocutory
9 appeal of decision on judicial notice of 16 June 2000 explained why
10 taking judicial notice of adjudicated facts does not reverse the burden
11 of proof.
12 The Chamber here was mindful of the limits of taking judicial
13 notice of adjudicated facts, that they do not concern the acts and
14 conducts of the accused or his mental state. And for the other facts,
15 the Chamber must exercise its discretion, whether admitting advances the
16 expediency of the trial without compromising the rights of the accused.
17 The Chamber here carefully assessed this in its adjudicated facts
18 decision of 26 September 2006.
19 In any event, Miletic fails to show an impact of the admission of
20 adjudicated facts in relation to convoy restrictions because the
21 Trial Chamber here did not rely exclusively on adjudicated facts for its
22 findings. Counsel for Miletic has referred to adjudicated facts 63. To
23 our knowledge, this fact has not been used in the trial judgement. The
24 Trial Chamber did rely on adjudicated facts, for instance, 52 and 53 in
25 relation to convoy restrictions, and I refer Your Honours to footnote 671
1 and 673, but Your Honours will see that they did not only rely on
2 adjudicated facts.
3 Moreover, the Chamber was mindful of the conflicting evidence
4 between DutchBat and UNHCR in relation to when the enclaves -- the
5 situation in the enclaves became dire. It therefore only found,
6 conservatively, that at least from June the aid supply decreased
8 By challenging this decrease in June in his reply in
9 paragraph 71, Miletic only refers to the numbers from February through
10 May 1995 and overlooks that the exhibit he refers to, Exhibit P4145, on
11 page 14, clearly shows a stark decrease in June, consistent with the
12 Chamber's findings.
13 The Chamber's findings that aid decreased significantly at least
14 by June is thus reasonable, so is the finding that the decrease was based
15 on convoy restrictions pursuant to Directive 7.
16 Directive 7 set out the aim of convoy restrictions very clearly,
17 and I quote again from Exhibit P5, this time on page 14:
18 "The relevant State and military organs responsible for the work
19 with UNPROFOR and humanitarian organisations shall, through the planned
20 and unobtrusively restrictive issuing of permits, reduce and limit the
21 logistics support of UNPROFOR to the enclaves and the supply of material
22 resources to the Muslim population, making them dependent on our goodwill
23 while at the same time avoiding condemnation by the international
24 community and international public opinion."
25 The lapse in time between the issuance of Directive 7 in
1 March 1995 and the finding that aid decreased significantly in June does
2 not render this conclusion unreasonable. The Chamber was mindful of this
3 lapse in time. In footnote 2796, it pointed out that according to
4 Directive 7 the restriction of aid should be done unobtrusively in order
5 to avoid international condemnation. The Chamber further reasonably
6 found that the delivery of humanitarian aid was disrupted as a result of
7 convoy restrictions by the VRS.
8 For his point that the shortage of humanitarian aid could not be
9 attributed to the VRS, Miletic stresses that the situation was difficult
10 throughout Bosnia and Herzegovina. He points to the fact in his reply,
11 para 60, that UNHCR in June 1995, for example -- according to UNHCR in
12 June 1995, for example, Banja Luka did not receive any food aid, although
13 UNHCR had planned for 1.250 tonnes of aid. Exhibit P4145, page 19.
14 This argument is not convincing because the same document shows
15 that, for instance, Zenica received even more food aid in June 1995 than
16 it was UNHCR's target. Moreover, contrary to Miletic's argument,
17 international humanitarian law did not allow the VRS to block entire
18 convoys, in particular when this results in a dire humanitarian
19 situation. The instances Miletic points to where weapons were found in
20 UNHCR convoys or the ABiH received food, fuel, or other material through
21 humanitarian aid convoys did not allow for a complete blockage of entire
22 convoys. Rather, in these instances, international humanitarian law
23 allows for searches of convoys for impermissible goods or to impose
24 conditions regarding the supervision of the distribution, and I refer to
25 Article 70(3)(a) and (b) of Additional Protocol I. Underlying
1 Additional Protocol I, Article 70, is the principle of customary
2 international law, which applies regardless of the nature of the conflict
4 "The parties to the conflict must allow and facilitate rapid and
5 unimpeded passage of humanitarian relief for civilians in need, which is
6 impartial in character and conducted without adverse distinction, subject
7 to the right of control."
8 That is Rule 55 of the ICRC's customary international
9 humanitarian law study.
10 Moreover, according to this study on page 197, a party must give
11 consent to the passage of humanitarian convoys if it is shown that a
12 civilian population is threatened with starvation and a humanitarian
13 organisation can help.
14 Miletic, therefore failed to show that the Chamber was
15 unreasonable to find that aid supply in the enclaves decreased
16 significantly at least from June based on convoy restrictions
17 implementing Directive 7. We have addressed Miletic's challenges
18 regarding the VRS's involvement in the convoy restriction process in
19 detail in our response brief. Today, I would just like to point out that
20 what matters for Miletic's individual criminal responsibility is his
21 personal participation in the convoy approval process. And my colleague,
22 Laurel Baig, will address this when talking about Miletic's contributions
23 to the JCE.
24 Miletic further challenges in his ground 3 that the full-scale
25 military attack on Srebrenica and Zepa, as well as prior shelling and
1 sniping were based on Directive 7. In his reply in paragraph 37, Miletic
2 concedes that the military attack on Srebrenica was indiscriminate and
3 disproportionate and therefore unlawful. He now only disputes that the
4 attack on Srebrenica as well as the one on Zepa were based on
5 Directive 7.
6 As the military attack on Srebrenica, the attack on Zepa was also
7 directed against the civilian population because it was similarly
8 indiscriminate and disproportionate. Trial judgement 772 and 775.
9 The Chamber was reasonable to find that the attacks on both
10 enclaves by the VRS were based on Directive 7. The orders by the
11 Drina Corps itself show that the military attack on Srebrenica was based
12 on Directive 7. The military attack started with two orders of
13 2 July 1995, the Krivaja 95 order and the preparatory order thereto. The
14 preparatory order orders the switching from defence to attack, and the
15 second order makes the objective even clearer by ordering to reduce the
16 enclaves to their urban area and to create conditions for the elimination
17 of the enclaves.
18 Both Krivaja 95 orders order the Drina Corps, and I quote, to act
19 "pursuant to Directive 7 and 7/1." That's Exhibit 5DP106, page 1; and
20 Exhibit P107, page 3.
21 This clearly shows that the military attack on Srebrenica was
22 based on Directive 7. And this line alone, "pursuant to Directive 7 and
23 7/1," counters Miletic's argument that Directive 7/1, which he also
24 drafted, changed Directive 7. Rather, as the Chamber reasonably found,
25 it supports that Directive 7 further implemented -- that Directive 7/1 -
1 apologies - further implemented Directive 7.
2 The military attack on Zepa was similarly based on Directive 7.
3 The Chamber reasonably found this fact on the basis that Directive 7
4 specifically addressed Srebrenica and Zepa and that a similar strategy
5 was implemented against both enclaves after the issuance of Directive 7.
6 Trial judgement paragraph 773.
7 Miletic's argument that we heard again today that it was
8 Karadzic's order of 9 July to take Srebrenica town that changed the aim
9 is not persuasive. Rather, after the objective of the second Krivaja
10 order was fulfilled, the capturing of Srebrenica town and Zepa followed.
11 The Krivaja 95 order originally did not include the take-over of
12 Srebrenica town because an assessment had been made by the VRS that --
13 command that the conditions were not right at that time for its capture.
14 But it was already foreshadowed by ordering to create the conditions for
15 the elimination of the enclave that an order would follow to take
16 Srebrenica once the conditions were right.
17 THE INTERPRETER: Please slow down for the sake of the
19 MS. GOY: I apologise.
20 Not only the military attack on the enclaves in July, but also
21 earlier incidents of shelling and sniping were based on Directive 7. The
22 Chamber found that from about May until the military attack in July,
23 there was increasing shelling and sniping into the Srebrenica enclave.
24 Miletic argues that the sniping could not have been based on
25 Directive 7 because there were also incidents of sniping prior to the
1 issuance of Directive 7. This argument does not show that the Chamber's
2 conclusion was unreasonable. As Momir Nikolic explained, the sniping of
3 the civilians was part of creating a difficult life for the people in the
4 enclaves, by preventing them from doing their everyday work and duties.
5 That is trial judgement 210. Therefore, the continuation of the sniping
6 activities thus fit into the pattern in the plan set out by Directive 7.
7 Miletic also challenges that the shelling by the VRS on
8 25 May 1995 was based on Directive 7 because - and he argued that again
9 today - it was an unforeseen event and a response to NATO's bombing on
10 the VRS positions. This argument overlooks that the shelling by the VRS
11 was an indiscriminate attack on civilians, and therefore fit within the
12 plan to create an unbearable situation. Therefore, Miletic fails to show
13 that the Trial Chamber was unreasonable in including it as part of the
14 implementation of Directive 7.
15 I would now like to turn to the second part of my submission, the
16 widespread and systematic attack against the civilian population.
17 The Chamber found that the attack on the civilian population for
18 chapeau purposes of crimes against humanity began with the issuance of
19 Directive 7, that means in March 1995. Miletic again today challenged
20 this finding and we have in our response brief in paragraph 39 through 42
21 explained why this finding is reasonable. In paragraph 41 we have also
22 listed the acts of violence that the Chamber identified which occurred
23 prior to July 1995 --
24 THE INTERPRETER: Please slow down. Thank you.
25 MS. GOY: Today I would just like to emphasise that for purposes
1 of Miletic's conviction, it is irrelevant whether the attack on the
2 civilian population --
3 JUDGE ROBINSON: I'm being asked to request you to slow down.
4 MS. GOY: I apologise. I shall really try to keep a more
5 moderate pace.
6 JUDGE ROBINSON: Canter as we said yesterday, not a gallop.
7 MS. GOY: Today I would like to emphasise that for purposes of
8 Miletic's conviction, it is irrelevant whether the attack on the civilian
9 population began at that very moment. What matters is that the crimes
10 for which he was convicted form part of the widespread and systematic
11 attack. And the forcible transfer here was based on the same acts as the
12 attack, the convoy restrictions, the shelling and sniping, the military
13 attack on the enclave. And these acts were systematic from the
14 beginning, due to the existence of the pre-conceived plan that was set
15 out in Directive 7.
16 In relation to the chapeau element, Miletic also challenges his
17 conviction for the forcible transfer of the civilian men who fled with
18 the column. In his ground 7, Miletic argues that the attack against them
19 was an attack against the legitimate military target, given the ABiH
20 soldiers' presence in the column, and therefore any act against the
21 column did not form part of the attack against the civilian population,
22 as required for chapeau purposes of crimes against humanity.
23 In relation to the column, I would just like to point out that
24 the Chamber found that two-thirds of the column were civilian. The
25 Trial Chamber in paragraph 270 said that the column was mixed with
1 civilian and military components and that there is evidence that
2 approximately one-third of the men of the column were armed. Moreover,
3 these civilians did not, as Miletic alleges today, become combatants by
4 moving with the column; rather, they remained civilians. They only lose
5 their protection unless -- if they directly participate in the
6 hostilities. And Miletic did not point to evidence that this is what
7 they did.
8 But in any event, Your Honours, Miletic's arguments relating to
9 an attack against the column are based on a misunderstanding of the trial
10 judgement. The civilian men who gathered in Susnjari on the evening of
11 the 11th and then moved in the column together with members of the ABiH
12 left their homes in Srebrenica for the same reasons as the women,
13 children, and elderly did. They fled due to the humanitarian crisis
14 caused by the attack on the enclave. This crisis was caused by the
15 restriction of humanitarian aid, the shelling and sniping, and the
16 military attack on Srebrenica. That is trial judgement 926 and 929.
17 This means that the forcible transfer of all victim groups,
18 including the civilian men, began when they were forced to leave their
19 homes in Srebrenica. Thus, the relevant force for forcible transfer was
20 not any attack against the column. It is the conditions in their homes
21 in Srebrenica that made the civilian men move. This clearly forms part
22 of the attack against the civilian population. Therefore, Miletic's
23 argument in relation to the attack against the column as such are beside
24 the point.
25 At the end of my submissions I would like to turn to the legal
1 question raised in ground 12 of Miletic's appeal that was raised again
2 today, the question of JCE 3 being part of customary international law.
3 Your Honours, the Tadic appeals judgement conducted a thorough
4 analysis of customary international law and concluded that JCE 3 forms
5 part of it. Later, ICTY and ICTR Appeals Chamber confirmed that
6 customary international law includes JCE 3. And we have referred to the
7 relevant case law in our brief. Miletic does not address the additional
8 cases we have cited as support in our response brief. His references in
9 his briefs and again today to decisions of the ICC, the ECCC, and the STL
10 do not undermine the analysis of this Tribunal because this Tribunal is
11 not bound by decisions of other courts.
12 In particular, with regard to the point that was raised today
13 that the Appeals Chamber of the STL took issue with JCE 3 in relation to
14 specific intent crimes, I would like to point out that the
15 Appeals Chamber in Brdjanin in the decision on interlocutory appeal of
16 19 March 2004 pointed out, when addressing this specific issue, that it
17 is erroneous to conflate the mens rea required for specific intent crimes
18 with the mental requirement for modes of liability. And that in many
19 cases, such as aiding and abetting and superior responsibility, different
20 mens rea standards may apply to direct perpetrators and to others.
21 Unless I can assist Your Honours further, I would hand over to my
22 colleague, Laurel Baig, who would address Your Honours on Miletic's
23 individual criminal responsibility.
24 JUDGE ROBINSON: Thank you.
25 Yes, you may proceed.
1 MS. BAIG: Good afternoon, Your Honours.
2 Your Honours, the Trial Chamber found that Miletic was criminally
3 responsible for the crimes outlined by Ms. Goy as a result of his
4 participation in a joint criminal enterprise, the common purpose of which
5 was to forcibly remove the Bosnian Muslims from Srebrenica and Zepa.
6 Miletic disagrees with the Trial Chamber's conclusions and attempts to
7 minimise his own responsibility and to deflect blame for these tragic
8 events on to the shoulders of others. But none of his arguments
9 demonstrate that the Trial Chamber's conclusions were either factually
10 unreasonable or based on legal error.
11 My submissions today will be divided into three parts. First, I
12 will address Miletic's role in the joint criminal enterprise to forcibly
13 remove; second, I will discuss his conviction for murder pursuant to
14 JCE 3; and finally, I will explain why his arguments concerning the
15 planning mode of responsibility have no impact on the judgement.
16 Turning first, Your Honours, to Miletic's central role in the
17 JCE. Miletic was the drafter of the plan; he participated in the convoy
18 restrictions, and he was the information and co-ordination hub. As the
19 chief of the administration for operations and training in the VRS
20 Main Staff, Miletic translated his superiors' decisions into written
21 orders. He was responsible for drawing up all of the combat documents
22 issued by the Main Staff. It was his administration that planned the
23 operations at a strategic level, and that is those operations that
24 involve the entire army or the forces of two or more corps, complex
1 Your Honours, Directive 7 that was discussed this morning, is one
2 of those documents, and may I remind you that is Exhibit 5.
3 You'll see on the last page of Directive 7 that it says very
4 plainly "drafted by Colonel Radivoje Miletic." In it, Miletic lays out
5 the illegal plan to force the Bosnian Muslims from the enclaves, handing
6 out assignments for the Bosnian Serb forces to achieve the goal of
7 creating "an unbearable situation of total insecurity with no hope of
8 further survival or life for the inhabitants of Srebrenica and Zepa."
9 Miletic himself admits at paragraph 403 of his brief that this
10 passage can be understood as discriminatory towards the Muslim
11 population. Your Honours, this is the only way to understand the plan in
12 Directive 7.
13 The Chamber found that the subject matter of this particular
14 instruction was operations. And this, of course, fell within Miletic's
15 area of responsibility as the chief of administration for operations and
16 training. The Chamber thus reasonably concluded at paragraph 1651 of the
17 judgement that Miletic was not only the drafter but he also provided the
18 underlying information for this illegal instruction.
19 Your Honours, Miletic urges you to accept an unreasonable
20 interpretation of his role in the drafting process. He attempts to cast
21 himself as a secretary, merely cutting and pasting the words of others.
22 I need to point out here that he made similar arguments at trial which
23 were properly rejected by the Trial Chamber. At the time of the drafting
24 of this directive, Miletic was a senior colonel. He was promoted to
25 general on 28th June, 1995. Miletic participated in the January 1995
1 combat-readiness meeting, where Karadzic discussed the war strategies for
2 the Republika Srpska with the political and military elite. It was
3 Miletic's task at this meeting to extract the most important conclusions
4 from the meeting to form the basis of Directive 7, and I would refer
5 Your Honours here to judgement paragraph 1648.
6 Your Honours, in reaching its conclusions, the Trial Chamber took
7 into account that Directive 7 was drafted following the so-called full
8 method, and in this procedure each command organ contributes to the final
9 draft. It also took into account and considered that it was possible
10 that Directive 7 may well have been discussed at the 16th March meeting
11 between Karadzic, Milovanovic, and Tolimir. But even taking this
12 possibility into account, the Trial Chamber ultimately and reasonably
13 concluded at paragraph 1751 of the judgement, and I'm going to quote
15 "Regardless of whether he physically drafted the directive or
16 inserted the words into the criminal parts, by his central role in the
17 drafting process, Miletic provided the addressees with an overview of the
18 political leadership's broader vision upon the authority of the
19 supreme commander."
20 Your Honours, as set out in Directive 7, Miletic participated in
21 the restriction of assistance to the enclaves, which contributed to the
22 forced removal of the civilian populations. In paragraphs 1655 to 1660
23 of the judgement, the Trial Chamber properly analysed the many convoy
24 approvals, denials, and notifications signed by Miletic during the
25 relevant period. The Chamber acknowledged that it did not have all of
1 the convoy documents in evidence, but what's important in this case,
2 Your Honours, is that Miletic played a role in the convoy approval
3 process and that the overall result of this process was a marked
4 reduction in humanitarian aid by at least June 1995. As planned in
5 Directive 7, as was well-known to its drafter, Miletic, this contributed
6 to the humanitarian catastrophe manufactured by the JCE members to force
7 out the Bosnian Muslim inhabitants from the enclaves.
8 Miletic also contributed to the common criminal plan by serving
9 as the information and co-ordination hub. The Trial Chamber accepted the
10 evidence demonstrating that Miletic was the "soul of the Main Staff of
11 the VRS" and the person "best informed on the situation in the various
12 theatres of war." Miletic advised and informed up and down the chain of
13 command. From the commanders in the field, Miletic received and studied
14 their reports in order to monitor the progress of the operations and the
15 execution of the commander's orders. He used this detailed information
16 to accurately brief and advise his directive superior, Milovanovic, and
17 the superior above him, Mladic.
18 It was also Miletic's task to keep President Karadzic and the
19 Supreme Command updated on the activities of the VRS by sending out the
20 daily Main Staff reports.
21 Your Honours, in the other direction, Miletic ensured the flow of
22 information and orders from the Main Staff down to the subordinate units.
23 At the heart of the Main Staff, Miletic was uniquely placed to
24 co-ordinate units in the field. At paragraph 1712, the Chamber explained
25 that in light of the scale and scope of the military attack and the
1 forcible removal operations, co-ordination from the Main Staff was
2 essential. The Trial Chamber concluded that Miletic was at the centre of
3 this co-ordination.
4 Taking into account his role in the planning of the crimes, his
5 participation in the restriction of aid to the enclaves, and his central
6 role as the information and co-ordination hub, the Trial Chamber properly
7 convicted Miletic for his participation in a joint criminal enterprise.
8 Your Honours, I would like to respond to three broad lines of
9 Miletic's challenges to his conviction that have been raised throughout
10 the briefs and in some of the discussions this morning: It was not him,
11 he was not there, and it was not illegal.
12 Turning to his first line of argument that it was not him.
13 Miletic tries to distance himself from responsibility by deflecting blame
14 on to his superiors, but of course their involvement cannot relieve
15 Miletic of responsibility for his personal role in these events.
16 First, he claims he was not in the circle of the VRS commander,
17 Mladic. To support this proposition, Miletic repeatedly refers to the
18 fact that Mladic failed to thank him in the 1996 New Year's speech. This
19 argument is unconvincing in light of the evidence concerning his close
20 contacts with Mladic. Throughout the events in 1995, Miletic worked at
21 the Main Staff headquarters with Mladic. As Miletic acknowledges at
22 paragraph 89 of his reply, it was his general responsibility to put
23 Mladic's decisions into written form.
24 The Chamber found that Miletic and Mladic met regularly. For
25 example, Miletic attended the daily morning meeting with Mladic and the
1 assistant commanders to brief them about the problems in the theatres of
2 war. Further evidence of the true nature of their relationship can be
3 found in Exhibit 1376, which is an intercept that's discussed at
4 paragraph 1696 of the judgement. In this recorded conversation, Mladic
5 refers to Miletic by his nickname, "Mico," and calls him "Burazer," which
6 translates to "buddy."
7 Your Honours, the fact that the Chamber did not allow the
13 Your Honours, Miletic also tries to deflect criminal
14 responsibility on to his direct superior, Milovanovic, who was the VRS
15 Chief of Staff. Milovanovic was away from the Main Staff headquarters
16 from May to October 1995. During this time, Miletic worked out of
17 Milovanovic's office -- sorry, I'm getting a note.
18 Sorry, Your Honours, my colleague is pointing out to me that that
19 line where I mentioned that particular exhibit should be redacted.
20 JUDGE ROBINSON: Very well, it will be.
21 MS. BAIG: And I can give you a specific part of the transcript
22 once my case manager is able to point it out. I apologise for that.
23 JUDGE ROBINSON: When you have the line, please give it to us.
24 MS. BAIG: Okay. Thank you.
25 Your Honours, I was saying that he tries to deflect to
1 Milovanovic. During the time that Milovanovic was away, Miletic worked
2 out of his office and signed many documents as standing in for the
3 Chief of Staff. At paragraphs 1633 and 1634 and following, the Chamber
4 found that Miletic was not technically standing in for Milovanovic, but
5 that he nevertheless took over a number of Milovanovic's duties while he
6 was absent.
7 Your Honours, I need to emphasise here that Miletic's role in
8 drafting Directive 7 was based on his ordinary functions as the chief of
9 the administration for operations and training, not because he was
10 replacing Milovanovic. Thus, the argument concerning Milovanovic's
11 whereabouts at the time of the drafting is irrelevant.
12 Your Honours, Miletic has challenged the Trial Chamber's
13 treatment of Milovanovic's evidence in ground 20 of his appeal and again
14 this morning. As we've set out in detail in our response brief at
15 paragraphs 310 to 316, the Trial Chamber properly assessed Milovanovic's
16 evidence with great caution in light of his role in these events.
17 Turning to Miletic's second line of Defence that he was not
18 there. Miletic argues that he was not involved in the forcible transfer
19 operation on the basis of the fact that he was absent from Main Staff
20 headquarters from 7 to 11 July. But this short absence does not
21 undermine his central role in planning and executing the common criminal
22 purpose. The Chamber considered this issue and explained why, in light
23 of his overall contribution, that this absence did not diminish his role
24 throughout the implementation of the plan from March through August. And
25 I would direct Your Honours' attention to paragraphs 1667 and to footnote
1 5211. The law does not require that every JCE member participates in
2 every meeting or every decision. The Chamber exercised caution,
3 appropriate caution, in assessing the reports distributed under Miletic's
4 name during his absence and declined to make findings against him on that
5 basis. Instead, the Chamber found that Miletic was briefed in detail
6 about the developments in Srebrenica as soon as he arrived back in the
7 Main Staff in the morning of 12th of July while the attack against the
8 civilian population was ongoing.
9 Contrary to Miletic's suggestion - and as Ms. Goy has already
10 explained in some detail - the plan did not suddenly become criminal
11 while Miletic was away on 9 July 1995, when Karadzic issued the order to
12 capture Srebrenica. The plan to forcibly remove the population was
13 already laid out at the latest in Directive 7. The 9th of July order was
14 not the start of the plan, it was not a sudden change in the plan, it was
15 the culmination of the common criminal plan of which Miletic, its
16 drafter, was already well aware.
17 Your Honours, with regard to the third line of defence that his
18 acts were not illegal, Miletic tries to excuse his responsibility by
19 claiming that his actions were merely part of his ordinary duties of
20 receiving, drafting, and transmitting information. This should be
21 treated for what it is, an admission that his contributions to the JCE
22 were recurrent and continuous.
23 I have three points in response to these arguments. First,
24 Your Honours, to the extent that individual actions were not illegal in
25 the abstract does not relieve Miletic of criminal responsibility. The
1 Appeals Chamber has repeatedly confirmed that JCE contributions need not
2 be criminal in themselves.
3 Second, Miletic's suggestion that he intended to pursue military
4 objectives and was unaware of any crimes runs contrary to the evidence.
5 As the person who drafted the plan and contributed to its common criminal
6 purpose by acting as the information hub, Miletic knew exactly what was
7 going on.
8 Finally, even if he might have performed his Main Staff functions
9 in the absence of the attacks, what matters here is that he did so in
10 furtherance of the common criminal plan.
11 Your Honours, Miletic was properly convicted for committing
12 persecution based on a joint criminal enterprise to forcibly remove the
13 Bosnian Muslim population from Srebrenica and Zepa and he's shown no
14 error in the Trial Chamber's conclusions.
15 Your Honours, I have the point of redaction for the record. It's
16 page 72, lines 17 to 20, I believe.
17 JUDGE ROBINSON: Thank you.
18 MS. BAIG: Your Honours, I'd like to turn now to Miletic's
19 conviction for murder pursuant to JCE 3.
20 The Trial Chamber found by majority that two separate incidents
21 of opportunistic killings in Potocari on 13 July 1995 were a natural and
22 foreseeable consequence of the JCE to forcibly remove: First, the
23 killing of nine Bosnian men about 500 metres from the DutchBat compound;
24 and second, the killing of one Bosnian Muslim man near the white house.
25 In a forcible transfer operation of this magnitude involving the
1 removal of tens of thousands of civilians and which was based on the
2 international creation of "an unbearable situation of total insecurity"
3 involving the restriction of much-needed humanitarian aid, cruel and
4 inhumane treatment, and the terrorising of civilians, including by
5 shelling and sniping, under these circumstances it was entirely
6 reasonable for the Trial Chamber to have concluded that it was
7 foreseeable that people might be killed.
8 As paragraph 1726, the Trial Chamber found, and I quote:
9 "As a result of Miletic's level of involvement, his broad
10 overview of the massive scale operation and his knowledge of the events,
11 he - probably above everyone - was in a position to foresee that this
12 large scale ... movement of the population would result in opportunistic
13 killings ..."
14 Miletic seizes on the fact that the victims were in the hands of
15 the Bosnian Serb forces at the time of their death to claim that they
16 were part of the murder operation rather than the forcible transfer. But
17 he has not shown that the Trial Chamber was unreasonable to find that
18 their murders were a natural and foreseeable consequence of both the JCE
19 to forcibly remove as well as the JCE to murder.
20 Your Honours, the Trial Chamber carefully considered this issue
21 and properly distinguished between the opportunistic killings in Potocari
22 on 13 July 1995 and the other opportunistic killings charged in this
23 case. Only the 13 July opportunistic killings in Potocari were a natural
24 and foreseeable consequence of both JCEs. The reason for this is simple:
25 Only these killings occurred at a place and a time when both JCEs were
1 being implemented. The victims were in Potocari because they had already
2 been forcibly displaced from their homes in Srebrenica. The forcible
3 transfer process, including the separation of the men from the women,
4 children, and elderly, was still ongoing when the victims were killed.
5 Although the victims were in the hands of the enemy and in that sense had
6 been detained, as referred to in paragraph 795 of the judgement, they had
7 not yet been moved to a detention facility. This fact is
8 well-illustrated by the example of the man killed near the white house
9 because he was shot while resisting being taken away by the Bosnian Serb
11 Miletic's claims that he was unaware of certain facts, such as
12 the intention of the Serb forces to enter Srebrenica, or the conditions
13 in Potocari, are flatly contradicted by the evidence. The Chamber
14 reasonably found at paragraph 1715 that Miletic had full knowledge of the
15 situation in Srebrenica and Zepa before, during, and after the attack.
16 On the 12th of July, on the eve of the opportunistic killings, Miletic
17 reported to Karadzic that the population was being forcibly displaced in
18 large numbers, estimating some 10.000 Muslims for transport. In the same
19 report, which is in evidence as Exhibit P44 and P2748, Miletic mentions
20 that the VRS and the MUP were ambushing the people trying to flee.
21 Your Honours, this brings me to the alleged inconsistency
22 addressed this morning in the findings concerning the perpetrators of the
23 killings of the nine men near the DutchBat compound. As my learned
24 colleague pointed out, in the findings on the crimes, the Trial Chamber
25 found that the murders were committed by Bosnian Serb forces, paragraph
1 359. In the part on Miletic's responsibility, the Trial Chamber held
2 that the perpetrators belonged to the VRS, paragraph 1027.
3 Your Honours, in the situation at hand, this is a distinction
4 without any impact on the judgement. Since the take-over of Potocari was
5 a combat operation, the term "VRS" describing the perpetrator groups can
6 be read as including the resubordinated MUP. Even without formal
7 resubordination, the acts of the MUP would still be attributable to
8 Miletic through the other JCE members, such as Mladic or Karadzic -- and
9 Karadzic because the physical perpetrators were part of or were acting in
10 concert with hierarchical groups controlled by them, as in the Martic
11 appeals judgement paragraph 195.
12 Your Honours, the Trial Chamber reasonably concluded, based on
13 the evidence in this case, that the Potocari killings were a natural and
14 foreseeable consequence of the joint criminal enterprise to forcibly
15 transfer, that Miletic foresaw this possibility and that he willingly
16 took that risk. That's at trial judgement paragraph 1082.
17 The fact that another Trial Chamber, based on different evidence,
18 evaluating different circumstances may have come to a different decision
19 has no impact upon the Trial Chamber's reasonable conviction of Miletic
20 pursuant to JCE 3 for these murders.
21 Finally, Your Honours, I'd like to address Miletic's argument in
22 ground 8 of his appeal concerning planning. Miletic takes issue with the
23 Trial Chamber's finding that he was responsible for both planning and
24 committing through a JCE, but this error actually has no impact on his
25 conviction or his sentence. The Trial Chamber of course has discretion
1 to enter multiple convictions based on concurrent modes of responsibility
2 that are established on the basis of the same facts, and the Chamber
3 should do so when it's necessary to reflect the full scope of an
4 accused's criminal conduct. In its summary of the findings on the
5 charges against Miletic at paragraph 2108 of the judgement, the
6 Trial Chamber found that he met the legal elements of both committing and
7 planning persecution. But when it comes to the actual disposition,
8 Your Honours, on page 835 of the judgement, you will see that the
9 Trial Chamber only refers to Article 7(1), committing. It does not enter
10 a conviction based on the mode of planning. This is consistent with the
11 Trial Chamber's factual findings at paragraphs 1722 and 1731 of the
12 judgement, that his conduct is most appropriately described as committing
13 persecution through his participation in the JCE to forcibly remove. It
14 is clear that Miletic was only convicted and sentenced for the commission
15 mode of responsibility. And, Your Honours, ground 8 should be dismissed
16 on that basis.
17 Before I conclude our response, Your Honours, I'd like to add one
18 reference to our submissions regarding ground 23 of Miletic's appeal, and
19 you will recall that this concerned the decision or lack thereof on a
20 Defence motion. In our brief we referred to transcript pages 17402 to
21 17406, and I would just like to add for Your Honours that this discussion
22 continues on to page 17408, where after considering the Prosecution and
23 Defence submissions on the motion, the Presiding Judge indicates at
24 line 20 that the matter is disposed of. Having disposed of the motion,
25 Your Honours, no further decision was necessary.
1 Your Honours, for these reasons and the reasons set out in our
2 brief, Miletic's challenges to his conviction and sentence should be
4 Your Honours, we note that we've also made a concession in
5 appeals ground 6.
6 Subject to any questions Your Honours may have, that concludes
7 the Prosecution's response to Miletic's appeal.
8 JUDGE ROBINSON: Thank you.
9 [Appeals Chamber and Legal Officer confer]
10 JUDGE ROBINSON: We'll take the break for 20 minutes and resume
11 at 3.45.
12 --- Recess taken at 3.24 p.m.
13 --- On resuming at 3.48 p.m.
14 JUDGE ROBINSON: As you know, there is a weather situation
15 developing or perhaps weather situation that has developed. Security has
16 advised staff members not involved in court proceedings to go home,
17 presumably those in court proceedings are weather-proof, and that applies
18 to the Appeals Chamber. But we will hear the response of Miletic's
19 counsel and then we'll make an assessment of the situation.
20 MS. FAVEAU: [Interpretation] Thank you, Your Honour.
21 I'd like to begin by saying a few words on the column. So we
22 heard the Prosecution today just simply repeating the conclusions of the
23 Trial Chamber, indeed the men who left Srebrenica left for the same
24 reasons as the women, the children, and the elderly. I wouldn't want to
25 be a victim as a women or a child hearing such an assessment of the
1 situation. It seems to me unfair, but beyond those facts, that is simply
2 not true. The men of Srebrenica did not leave for the same reasons as
3 the women, the children, and elderly. Had they left for the same
4 reasons, they would have left like those people to Potocari. The men who
5 left with the column left with a military objective.
6 One mustn't forget either that Bosnia-Herzegovina at the time was
7 following the Yugoslav policy in that setting and that all men of
8 military age were more or less part of the military. In any event, as to
9 the column and its objectives, I believe that the Prosecution military
10 expert Richard Butler described it in the best possible way.
11 Turning now to humanitarian aid. Yes, humanitarian aid shrunk in
12 June. Why did it diminish in June? For three reasons that have nothing
13 to do with the Republika Srpska army. The first, a serious crisis
14 erupted between UNPROFOR and the Serbian authorities in May 1995, and the
15 consequence of that was the suspension of convoys decided by UNHCR.
16 That's item 4143 on page 14; then the BH army offensive began on the 15th
17 of June, 1995, involving the Muslim forces of Srebrenica and Zepa
18 increased the security of passage of convoys; and finally, UNHCR reduced
19 the amount of humanitarian destined for BH, including to the enclaves in
20 June 1995.
21 And so the Prosecution informs us that Banja Luka received
22 nothing is not a good argument because Zenica received more. I invite
23 you to refer to item P4145, page 19. That exhibit shows clearly that
24 Zenica received more than was -- slightly more than was planned, but that
25 Banja Luka, Orasje, Bihac, Eastern Bosnia, the enclaves of
1 Eastern Bosnia, Sarajevo, southern Bosnia, and Tuzla all received far
2 less than planned.
3 Now, if the Prosecution's argument that repeats the judgement,
4 the fact that until June humanitarian aid did not reduce changes nothing
5 because the Republika Srpska army decided to do it intelligently and
6 gradually. Look at the same exhibit, page 21, which shows the convoys
7 that moved to Srebrenica and Zepa and the quantity of humanitarian aid
8 that was distributed after the delivery of the directive March, April,
9 May 1995. So what do we observe in this exhibit that is gradual increase
10 in humanitarian aid that reached the enclaves, and I draw your attention
11 to the fact that Zepa in May received in fact more than was planned. So
12 there is something here that I don't understand. Either the RS army
13 couldn't calculate or its -- its convoys and the distribution of
14 humanitarian aid had nothing whatsoever to do with the directive.
15 To clarify a point, it's not the Defence's argument that when
16 there are convoy abuses that restrictions are fully allowed, it's not at
17 all the argument of the Defence. The argument of the Defence is when
18 there are abuses, certain restrictions are allowed and control. The
19 Defence argument -- and since the abuses that are proven and established
20 in the judgement, the Trial Chamber had to establish beyond all
21 reasonable doubt for each convoy that the restrictions were illegal and
22 it did not do so.
23 The Prosecution when it refers to planning -- forgive me. I'd
24 just like to refer once again to Directive 7 and the role of
25 General Miletic. What happened is that Radivoje Miletic never -- but
1 never challenged that he played a part in drafting Directive 7. He took
2 part in its drafting. The Defence argument was that he did not attend
3 the meetings during which the Republika Srpska army policy or, more
4 generally, the policy of the Bosnian Serbs was decided; and it's for that
5 reason that it is crucially important that Manojlo Milovanovic was at the
6 Main Staff when the directive was drafted. And the second argument is
7 that Miletic prepared the draft directive. But we don't know and the
8 Trial Chamber did not establish that beyond all reasonable doubt. The
9 incriminated parts of the directive, the sentence which indeed could be
10 viewed as unlawful, was that devised, written, drafted by Miletic before
11 the directive was signed by Radovan Karadzic. Our argument is that it
12 was not. And, in any event, what comes out of the judgement, the
13 Trial Chamber was not in a position to establish whether Miletic had
14 knowledge of that directive, of that sentence in the directive before
15 March 31st, when he wrote Directive 7/1 on the basis of Directive 7.
16 Your Honour, that's all I have by way of a response. I don't
17 know if you have any questions.
18 JUDGE ROBINSON: No, I have no questions.
19 Does any of my colleagues have a question? No.
20 Thank you very much.
21 Well, we come now to consider where we go from here, in light of
22 the weather.
23 Mr. Prosecutor.
24 MR. KREMER: Yes, Mr. President, we are prepared to proceed with
25 the Prosecution's appeal if it's the Court's wish, and my counsel --
1 counsel across the hall agree. I'm ready to proceed for an hour and then
2 come again tomorrow to finish the Prosecution's submissions on its
4 JUDGE ROBINSON: Well, Mr. Kremer, not everyone is as sturdy as
5 you are, and mindful of the situation a suggestion has been made that
6 perhaps if we started at 9.30 tomorrow morning --
7 MR. KREMER: That's fine as well.
8 JUDGE ROBINSON: -- we would achieve the same if we finish
10 So let us adjourn and safe travel to your very souls.
11 --- Whereupon the hearing adjourned at 3.59 p.m.,
12 to be reconvened on Friday, the 6th day of
13 December, 2013, at 9.30 a.m.