Tribunal Criminal Tribunal for the Former Yugoslavia

Page 400

 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.

Page 401

 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


Page 402

 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.

Page 403

 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

Page 404

 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

Page 405

 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

 5     operation.

 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

14     1879.

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

Page 406

 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

Page 407

 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


Page 408

 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.

Page 409

 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

Page 410

 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

Page 411

 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

Page 412

 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

13     backyard.

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

22     contrary.

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

Page 413

 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

Page 414

 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)

 4   (redacted)

 5   (redacted)

 6   (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

Page 415

 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

 8     Obrenovic.

 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

12     questions.

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

16     quotation.

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.

Page 416

 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

16     confusion."

17             Now, how you can paraphrase that to mean "busy," I simply do not

18     understand.

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


Page 417

 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

 7     submissions.

 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

Page 418

 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

Page 419

 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

Page 420

 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

Page 421

 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

Page 422

 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

Page 423

 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

Page 424

 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

Page 425

 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

Page 426

 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

Page 427

 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.

Page 428

 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

15     population.

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

Page 429

 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.

Page 430

 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

Page 431

 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

Page 432

 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

Page 433

 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


Page 434

 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]

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 435

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17                           [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


Page 436

 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

Page 437

 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

Page 438

 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

Page 439

 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.

Page 440

 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

25     conclusion.

Page 441

 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 --

Page 442

 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

Page 443

 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

Page 444

 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

16     soon.

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

Page 445

 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

Page 446

 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

Page 447

 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


Page 448

 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

 6     defence.

 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]

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 449

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 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


Page 450

 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

 9     confusing.

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:

Page 451

 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

Page 452

 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.


Page 453

 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.

Page 454

 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

Page 455

 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

Page 456

 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

 8     crimes.

 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

12     restrictions.

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 --

Page 457

 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

Page 458

 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

 7     significantly.

 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

Page 459

 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

Page 460

 1     Additional Protocol I, Article 70, is the principle of customary

 2     international law, which applies regardless of the nature of the conflict

 3     that:

 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

Page 461

 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 -

Page 462

 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

18     interpretation.

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

Page 463

 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

Page 464

 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

Page 465

 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

Page 466

 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.

Page 467

 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

25     operations.

Page 468

 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

Page 469

 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

14     here:

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

Page 470

 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

Page 471

 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

Page 472

 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

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

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

Page 473

 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

Page 474

 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

Page 475

 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

Page 476

 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

Page 477

 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

10     forces.

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

Page 478

 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

Page 479

 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.


Page 480

 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

 3     dismissed.

 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

Page 481

 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

Page 482

 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

Page 483

 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 --


Page 484

 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

 3     appeal.

 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

 9     tomorrow.

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.