Tribunal Criminal Tribunal for the Former Yugoslavia

Page 485

 1                           Friday, 6 December 2013

 2                           [Appeals Hearing]

 3                           [Open session]

 4                           [The appellants entered court]

 5                           [The Appellant Miletic not present]

 6                           --- Upon commencing at 9.35 a.m.

 7             JUDGE ROBINSON:  Thank you.  It is our expectation that with the

 8     earlier start and focused presentations, we may - without prejudicing the

 9     rights of any party - conclude the proceedings today.  We may take an

10     abbreviated lunch break.

11             Mr. Kremer.

12             MR. KREMER:  Thank you, Mr. President.  For the record, my name

13     is Peter Kremer, I appear on behalf of the Prosecution.  With me this

14     morning is Mr. Paul Rogers and Mr. Kyle Wood, who you are familiar with

15     from earlier submissions.

16             Let me begin by briefly outlining how the Prosecution will

17     present its oral arguments on its appeal.  We will use the order of the

18     response submissions and the length of our submissions as a guide.  As

19     such, I will make very brief submissions concerning Beara and Popovic's

20     acquittal for conspiracy to commit genocide and Miletic's acquittal for

21     murder as a violation of the laws or customs of war.  These are grounds 6

22     and 9 of our appeal respectively.

23             Mr. Rogers will then make submissions concerning Drago Nikolic's

24     erroneous acquittal for conspiracy to commit genocide, ground 7 of our

25     appeal, as well as answer your question relating to those issues.  We

Page 486

 1     rely on our submissions as to why Nikolic's sentence was manifestly

 2     inadequate, and that is ground 8 of our appeal.  But as I say, we rely on

 3     our written submissions for the adequacy for that appeal.

 4             Mr. Wood and I will then conclude by making submissions

 5     concerning Vinko Pandurevic.  Mr. Wood will answer questions ii, iii, iv,

 6     and v, and in doing so will present our submissions on ground 2, his

 7     superior responsibility under Article 7(3).  I will speak to ground 1,

 8     which challenges the Trial Chamber's findings regarding his criminal

 9     responsibility under Article 7(1), and I will only address grounds 1(A)

10     and 1(B).  For subground 1(C), we rely on our brief.  Time permitting,

11     Mr. Wood will make a few short remarks about ground 3, Pandurevic's

12     manifestly inadequate sentence.

13             As Your Honours are well aware, grounds 4 and 5 are moot given

14     Mr. Gvero's passing.  And as for remedy, the Prosecution refers

15     Your Honours to the prayers for relief found in both our notice of appeal

16     and appeal brief.

17             Starting with ground 6, our appeal against Beara and Popovic's

18     acquittal for conspiracy to commit genocide.  We observe that on

19     9 October 2012, the ICTR Appeals Chamber in Gatete decided the issue of

20     cumulative convictions for conspiracy to commit genocide and genocide.

21     And I refer to those findings in the appeals judgement at paragraphs 259

22     to 264.

23             Like the Trial Chamber in Gatete, the Trial Chamber in this case

24     found Popovic and Beara criminally responsible for genocide and for

25     conspiracy to commit genocide but only convicted them of genocide.  The

Page 487

 1     Gatete appeal judgement, Judge Agius dissenting, found that the

 2     Trial Chamber erred in law by failing to hold Gatete responsible for the

 3     totality of his criminal conduct, which included entering into the

 4     unlawful agreement to commit genocide, just as the Prosecution has argued

 5     in ground 6.  The Gatete Appeals Chamber expressly disagreed with the

 6     Trial Chamber's reliance on the Popovic Trial Chamber's reasoning for

 7     declining to enter a cumulative conviction.  In particular, the

 8     Appeals Chamber concluded that, one, the danger represented by the

 9     agreement to commit genocide itself justifies punishing the acts of

10     conspiracy, even where the substantive crime has been committed; and two,

11     it is the legal elements of two crimes that must be compared to determine

12     whether they are permissibly cumulative, not the underlying evidence.

13     The Gatete appeals judgement fully supports the Prosecution's arguments

14     in ground 6 and confirms that the Popovic Trial Chamber took an erroneous

15     approach.  The Gatete Appeals Chamber provided a thorough analysis of the

16     issue which is highly persuasive and should be followed by this Chamber.

17             Unless there are questions from the Bench on this ground, we have

18     no further submissions.

19             Turning to ground 9, Miletic's acquittal for murder as a

20     violation of the laws or customs of war, all of the elements required to

21     convict Miletic of this crime were established.

22             The Chamber convicted Miletic of these killings under JCE 3, but

23     only for murder as a crime against humanity and as an underlying act of

24     persecution, but not as a war crime.  The Chamber reasoned in

25     paragraph 1727, and I quote:

Page 488

 1             "...  that in the circumstances of 'opportunistic' killings

 2     arising from a JCE to forcibly remove - encompassing forcible transfer as

 3     other inhumane acts constituting a crime against humanity - his criminal

 4     responsibility is for murder as a crime against humanity and not as a war

 5     crime."

 6             This finding is erroneous, regardless of whether the Chamber

 7     reached it as a factual or legal conclusion.

 8             If the Chamber meant that it is a legal requirement that the

 9     JCE 3 crime is to be of the same category, that is, a crime against

10     humanity, as the JCE 1 crime, then it is wrong in law.  As we have set

11     out in our appeal brief, the Appeals Chamber in Stakic and Martic

12     affirmed convictions for murder as a war crime under JCE 3, although the

13     JCE 1 crime was a crime against humanity.  And I refer you to our appeal

14     brief at paragraph 325.

15             If the Chamber meant that it could not conclude factually that

16     murder as a war crime was a natural and foreseeable consequence of the

17     joint criminal enterprise to forcibly displace and that Miletic could

18     foresee this and willingly took the risk, then this is an unreasonable

19     conclusion.  What distinguishes murder as a war crime under

20     Common Article 3 from murder as a crime against humanity, is that the

21     crime needs to be closely related to the armed conflict and that the

22     victims are persons not taking part in the -- active part in the

23     hostilities.

24             On the facts of this case, no reasonable Trial Chamber could have

25     concluded that it was not a natural and foreseeable consequence that

Page 489

 1     murder closely related to the armed conflict would occur, given that part

 2     of the coercion used was a full-scale military attack on Srebrenica.

 3     Similarly, in light of the aim to remove the civilian population from

 4     Srebrenica, it was a natural and foreseeable consequence that persons not

 5     taking active part in the hostilities might be killed.

 6             In light of Miletic's role and involvement in the joint criminal

 7     enterprise and his intimate knowledge of the events, the only reasonable

 8     conclusion is that it was foreseeable to him personally that killings

 9     closely related to the armed conflict might occur in relation to victims

10     not taking active part in the hostilities.

11             Unless there are questions on this ground, I will now pass the

12     podium to Mr. Rogers.

13             MR. ROGERS:  Good morning, Mr. President, Your Honours, and my

14     colleagues for the Defence and everyone else in and around the courtroom.

15             Your Honours, I will be dealing with the appeal relating to

16     Drago Nikolic, as Mr. Kremer has indicated.  In relation to our remarks

17     concerning conspiracy, we rely upon our brief and the arguments insofar

18     as they are necessary relating to Gatete which Mr. Kremer has outlined.

19     My submissions will be confined to answering Your Honours' two questions

20     that you have posed to the parties, and of course in relation to

21     question 2, and the submissions I would have made will be in relation to

22     the appeal as a whole will be somewhat encompassed within.  So I ask

23     Your Honours to have regard to that, and for the rest we rely upon our

24     brief.

25             Your Honours, in relation to the question -- the first question

Page 490

 1     that Your Honours ask:  Discuss whether the Prosecution's allegation that

 2     the Trial Chamber failed to apply the accepted factors for inferring

 3     genocidal intent to the evidence when assessing Nikolic's mens rea for

 4     genocide exceeds the Prosecution's notice of appeal, and if it does,

 5     whether the Prosecution wishes to add any further arguments to its motion

 6     to vary its notice of appeal concerning good cause for variation.

 7             Your Honours, simply put, our submission is that the paragraphs

 8     that you've identified, 237 to 243, are not new arguments but are an

 9     aspect of the factual ground and, as such, are wrapped up in the error

10     alleged in paragraph 39 of our notice of appeal.  This is because the

11     argument falls within the general factual error articulated in ground 7

12     of the notice and arguments detailing that error belong in the brief and

13     not in the notice.  Using factors that have been identified as evidential

14     considerations from which genocidal intent can be inferred is one way to

15     show that the Trial Chamber's assessment in this case was one that no

16     reasonable Trial Chamber could make.  Thus, it is an aspect of the

17     factual error.  Indeed, the whole of the Prosecution's appeal brief

18     primarily is an explanation of the factual error.  The only legal error

19     identified in the notice of appeal concerns the assessment of legally

20     irrelevant considerations, and the arguments relating to those are set

21     out in paragraphs 274 and 285 to 288 of the brief.  Everything else that

22     is argued relates to the factual appeal because it relates to the

23     assessment of the available evidence and the unreasonable conclusion of

24     the Trial Chamber giving rise to a miscarriage of justice.

25             The relevant factors referred to in 237 to 243 describe a number

Page 491

 1     of facts and circumstances from which genocidal intent may be inferred.

 2     Those factors are also referenced in the judgement itself at

 3     paragraph 823 and 824.  These arguments form part of the factual

 4     assessment error and properly appear in the brief, not the notice of

 5     appeal.  And, Your Honours, we would refer you also to the decision in

 6     the Mrksic appeal dated the 26th of August, 2008, paragraph 8, cited in

 7     our reply brief.

 8             Your Honours, in our submission a broad pleading of a factual

 9     error will encompass all of the elements and all of the arguments that go

10     to support how that error is made out.  The Prosecution's argument here

11     falls within the factual error pleaded in the notice of appeal, similarly

12     to that in the Mrksic decision at paragraph 26, because it clearly

13     addresses the single question, which is the mens rea aspect of Nikolic's

14     responsibility which is the core of the Prosecution's submission under

15     its seventh ground of appeal.  Thus, our primary argument remains that we

16     do not exceed the notice of appeal.  However, should Your Honours reject

17     that argument and consider the argument should have been separately

18     articulated as a legal error, good cause exists for not including or

19     articulating it as a legal error in the notice.  Firstly, the line

20     between legal and factual errors is not always clear in the

21     jurisprudence.  In some previous cases where the Prosecution has alleged

22     errors regarding the assessment or relevant factual circumstances or

23     factors as legal errors, the Appeals Chamber has recharacterised them as

24     factual.  For example, in the Naletilic appeals judgement, paragraph 128

25     and 139 to 140; also in Krnojelac appeals judgement, paragraph 187 to

Page 492

 1     202.  Having regard to the Mrksic decision, in our submission it was

 2     reasonable to consider that the argument detailing the error should be

 3     made in the brief rather than in the notice.

 4             In addition to the reasons provided for good cause for variation

 5     in our reply brief, the Prosecution notes and submits that no unfair

 6     prejudice would result because Nikolic has fully responded to the

 7     arguments developed in the Prosecution's brief in his response brief.

 8     And in similar circumstances, we refer you again to the Mrksic decision,

 9     paragraph 37; the Nchamihigo appeals judgement paragraph 331; and the

10     Blagojevic and Jokic appeals decision of the 20th of July, 2005.

11             Your Honours, that said, I will pass, if I may, to the second

12     question that Your Honours ask.  Your Honours asked:  Discuss whether in

13     taking into account the alleged errors committed by the Trial Chamber in

14     determining Nikolic's mens rea for genocide Nikolic's specific intent for

15     genocide would be unequivocally established, and particularly whether

16     genocidal intent is the only reasonable inference available on the

17     evidence.

18             The answer is yes because the general context and all the other

19     factors of scale and systematic targeting show that a genocide was being

20     implemented.  Indeed, the judgement found that the murder operation was

21     genocidal because Nikolic was a party to the plan to murder with Popovic

22     and Beara and shared their intent to kill and to exterminate; because

23     Popovic and Beara were implementing the murder plan in order to commit

24     genocide; because Nikolic knew that Popovic and Beara were murdering in

25     order to further genocide, in the judgement at 1407; because the Chamber

Page 493

 1     found Nikolic's main contributions to the murder plan were made

 2     concurrent with and after the acquisition of this knowledge,

 3     judgement 1407; because having joined the murder operation, knowing it

 4     was genocidal, Nikolic was "persistent and determined," judgement 1408;

 5     because he demonstrated resolve, 1409; because he pursued personnel for

 6     the executions at Rocevic, 1409; because he was actively involved in many

 7     of the facets of the operation at Orahovac, 1409; because he arranged the

 8     guarding of prisoners at the Kula school, 1409; because he was with Beara

 9     near the Petkovci school, judgement 498; and because he was disciplined,

10     judgement 1413.

11             The answer is yes because motive is irrelevant to the issue of

12     specific intent.  It is clear that the Trial Chamber were affected by

13     considerations of motive when they determined mens rea was not proved at

14     1414, when they stated:

15             "...  another reasonable inference is that Nikolic's blind

16     dedication to the security service led him to doggedly pursue the

17     efficient execution of his assigned tasks in this operation, despite its

18     murderous nature and the genocidal aim of his superiors ..."

19             In other words, he was motivated by a sense of service or a

20     desire to please, and thus he had no intent.  This is simply irrelevant,

21     as the Jelisic Appeals Chamber at paragraph 49, citing to the Tadic

22     appeals judgement at 269 said:

23             "The existence of a personal motive does not preclude the

24     perpetrator from also having the specific intent to commit genocide."

25             In the Tadic appeals judgement the Appeals Chamber stressed the

Page 494

 1     irrelevance and inscrutability of motives in criminal law."

 2             And there follows in that paragraph in Tadic at 269 an

 3     interesting analysis of a reductio ad absurdum on this specific point

 4     relating to mass killing, and it's instructive to look at it but I won't

 5     read it out here in court.

 6             Your Honours, we also refer to the Kayishema appeals judgement at

 7     161, the Niyitegeka appeals judgement at 53, Kvocka appeals judgement at

 8     367 and 416.  Your Honours, in the Duch appeals judgement -- we're just

 9     -- I'm aware of Your Honours and I want to make sure that Your Honours

10     are able to follow.  In the Duch appeals judgement on the 3rd of

11     February, 2012, at paragraph 240, the ECCC Appeals Chamber spoke of

12     motive in the context of persecution in this way, they said:

13             "The specific motive out of which he engaged in the persecution,

14     that is, whether he internalised the goals of the CPK behind the

15     persecutory policy or only wanted to prove himself as a loyal and

16     efficient member of the party is immaterial for finding he possessed the

17     requisite specific intent."

18             And in the Charles Taylor appeals judgement in the footnote at

19     1382, they explained that motive:

20             "...  concerns the extraneous reasons and motivations that

21     triggered an accused to engage in criminal conduct."

22             In the case of Drago Nikolic, the Trial Chamber relied upon these

23     extraneous reasons and motivations in acquitting him.

24             Your Honours, the Trial Chamber looked at Nikolic's personal

25     circumstances at 1412, such as his rank, that he had not attended

Page 495

 1     military academy, that he was chief of security, a post usually reserved

 2     for a higher rank, that he had little authority on his own, that he was

 3     brought in by others, that the order came from Mladic.

 4             But, Your Honours, to possess genocidal intent, he did not need

 5     to be a general or a colonel, or to be powerful or independent.  He did

 6     not need to access the greatest of resources or to be competent or

 7     efficient or to take part in all of the aspects of the operation or even

 8     to do all that he can.  Your Honours, Nikolic did not need to be an

 9     architect to be a genocidaire, as the Trial Chamber seemed to consider at

10     1410.

11             Your Honours, the formation of genocidal intent is not precluded

12     by being out of your depth, as the Trial Chamber seemed to consider at

13     1413, when it recorded Pandurevic's view that the cloak of the security

14     service was much too big for him.

15             None of these factors identified by the Chamber in 1412 or 1413

16     are ones which preclude the formation of a specific intent.

17             Nikolic's position in the hierarchy simply goes to his ability to

18     act.  The fact his role was not as encompassing as that of Popovic or

19     Beara does not stop him from having genocidal intent.  To do so would be

20     to confine genocide to those with the power to act or ability to act on a

21     great or grand scale.  As the Appeals Chamber in Kayishema held at

22     judgement 170:

23             "Genocide is not a crime that can only be committed by certain

24     categories of person.  As evidenced by history, it is a crime which has

25     been committed by low-level executioner and high-level planner and

Page 496

 1     instigator alike."

 2             To be a genocidaire, all that is required are actions, in this

 3     case killings, directed at members of the protected group, carried out

 4     with intent to destroy that group in whole or in part.  Here those

 5     actions were carried out by Drago Nikolic with grim determination and

 6     steadfast resolve.  He did not have to be passionate or enthusiastic.  He

 7     may have been somber or angry or weak or eager to please.  But once he

 8     chose to act and participate, in this case with resolve and

 9     determination, his genocidal intent is manifest by his actions.  He knew

10     the evil purpose, he possessed the same persecutory intent as Popovic and

11     Beara.  He knew what the killing was for, what it was aimed at, and he

12     joined in.  Whatever his motivation may have been, and is not relevant,

13     the only reasonable conclusion is that Drago Nikolic possessed genocidal

14     intent.  And thus we answer Your Honours' question:  Yes.

15             Your Honours, that concludes the answer to those questions, and I

16     will pass - unless Your Honours have questions - to Mr. Wood to

17     conclude -- to continue with the Prosecution's submissions.

18             MR. WOOD:  Good morning, Your Honours.  In relation to ground 2

19     of the Prosecution appeal, I'll limit my remarks to addressing, as

20     Mr. Kremer said, the second, third, fourth, and fifth questions on page 3

21     of the 6 November 2013 order for the preparation of the appeal hearing.

22     With the possible exception of sentencing, time permitting, after

23     Mr. Kremer's remarks.  For those grounds of appeal that I don't address

24     today, as ever, we continue to rely on our written submissions.

25             So going straight away then to Your Honours' question 2 or

Page 497

 1     discussion point 2, which is:  Discuss the Trial Chamber's finding that

 2     Pandurevic did not have sufficient notice of the Zvornik Brigade's

 3     involvement in possible exterminations as of 12.00 p.m. on 15 July 1995.

 4             As we argue, Your Honours, in ground 2 of our appeal, the Chamber

 5     erred in law by finding that Pandurevic's duty to prevent was not

 6     triggered until he had found out concretely [Realtime transcript read in

 7     error "completely"] that his subordinates had already participated in

 8     3.000 murders.  Further, no reasonable Chamber could have concluded that

 9     Pandurevic did not [sic] know or have reason to know, at noon on 15 July,

10     that his subordinates might participate in extermination under Article

11     7(3).

12             So turning to the legal error first.  I'll note that the

13     Trial Chamber articulated, Your Honours, at paragraph 1038 the proper

14     legal standard for determining when precisely a subordinate -- a

15     commander's requirement or duty to prevent is triggered under

16     Article 7(3).  And the Chamber said:

17             "The information required to put a superior on notice need not be

18     specific.  Rather, it must 'put him on notice of possible unlawful acts

19     by his subordinates.'"

20             Applying this standard, Your Honours, to the question of when

21     Pandurevic's duty to prevent murder was triggered, the Chamber found that

22     Pandurevic had reason to know that his subordinates might commit murder

23     based on what he knew at around noon on 15 July 1995.  And what is that

24     knowledge?  According to the Chamber, General Pandurevic knew that a

25     large number of prisoners had been brought from Bratunac to the Zvornik

Page 498

 1     sector.  General Pandurevic knew that these prisoners were being

 2     executed.  And General Pandurevic knew according to his subordinates that

 3     there were "enormous problems with the guarding, execution and burial of

 4     the prisoners."  That's at trial judgement paragraphs 1861 and 2037.

 5             The Chamber also found that General Pandurevic knew that these

 6     prisoners were being killed as part of a plan to murder the able-bodied

 7     Bosnian Muslim males from Srebrenica.  And that's the Chamber's finding

 8     at paragraph 1960.  General Pandurevic also knew that this was causing

 9     "an additional burden" on his brigade, and that's at paragraphs 1870 and

10     1949 of the judgement.

11             When it comes to extermination, however, the Chamber found that

12     Pandurevic's duty to prevent wasn't triggered until he had acquired

13     details of the actual numbers of prisoners killed, rather than reason to

14     know his subordinates might commit murder on a mass scale.  This is

15     clear, Your Honours, from reading two specific paragraphs of the

16     judgement.  At paragraph 2070 [sic] of the judgement, the Chamber found

17     that on the 18th of July, Pandurevic had "knowledge of the large-scale

18     murders of the men and boys from Srebrenica ..."  That is by the 18th of

19     July.  It cites to General Pandurevic's interim combat report of the 18th

20     of July in which he refers to 3.000 Bosnian Muslim males having been

21     brought to the area of Zvornik.

22             Three paragraphs later, however, the Chamber implicitly

23     contrasted this level of knowledge on the 18th of July with the "obvious

24     limitations" of Pandurevic's knowledge on the 15th.  And it found that

25     his Article 7(3) responsibility was only triggered "at a late stage."

Page 499

 1             Now, Your Honours, the only possible limitation the Chamber can

 2     be referring to is that on the 15th of July, unlike on the 18th of July,

 3     which was assuredly a late stage in the murder operation, Pandurevic

 4     didn't know that specifically 3.000 had been killed.  Now, this is

 5     contrary, Your Honours, to the correct reason to know standard, as the

 6     Chamber properly articulated it and applied it to murder.

 7             In any event, Your Honours, as to the factual error, the

 8     characteristic of extermination is that in what distinguishes it from

 9     murder is scale.  It is the killing of a large number of individuals, and

10     this is at paragraph 800 of the trial judgement.  No reasonable finder of

11     fact could have concluded that Pandurevic did not know or have reason to

12     know at noon on the 15th that his subordinates might participate in mass

13     killings.  Considering, as I've outlined, that he knew they were

14     participating in a systematic murder operation of a number of -- a group

15     of individuals that was so large that it was creating enormous problems

16     with the guarding, execution, and burial, and it was so large that it was

17     creating an additional burden for his brigade.

18             Further, Your Honours, in this respect, remembering that this is

19     a 7(3) case as to this part, Pandurevic need only have asked if he needed

20     more information at noon on the 15th of July.  Recall that he received

21     this information from his Chief of Staff, Obrenovic.  At that moment, he

22     could have inquired further.  He could have inquired of Nikolic.  He

23     could have inquired of Jokic, who is the man he knew the information came

24     from.  General Pandurevic should not be acquitted, Your Honours, for this

25     failure to exercise responsible command.  And that concludes my

Page 500

 1     submissions on question 2.

 2             JUDGE ROBINSON:  Yes, Mr. Haynes.

 3             MR. HAYNES:  I waited until the end.  Can I just check a

 4     judgement reference that Mr. Wood gave at page 14, line 14.  It reads as

 5     paragraph 2070.

 6             JUDGE ROBINSON:  What is correct?

 7             MR. WOOD:  Your Honours, we'll check that and get back.

 8             Turning then to the next question --

 9             JUDGE ROBINSON:  Just a minute.  Judge Pocar would like to ask a

10     question.

11             JUDGE POCAR:  Mr. Wood, I would like to be clear about the

12     standard used for superior responsibility.  If I'm correct, you referred

13     to reason to know that the soldiers might participate in the killings and

14     then you used the expression "was possible" that they participate in

15     killings.  Now, is that the appropriate standard for superior

16     responsibility?  In my recollection the Celebici case, which is the

17     leading case on this matter, when it defined superior responsibility

18     referred - as the Trial Chamber correctly says - that the superior knew

19     or had reason to know that a subordinate's criminal act was about to be,

20     was being, or had been realised.  There is a slight difference in using

21     the words that an act was about to be committed, it was possible to be

22     committed, because the possibility standard is clearly a threshold which

23     is much, much lower actually.  But can you clarify whether your plea

24     remains the same, referring to the appropriate standard?

25             MR. WOOD:  Your Honour, the Trial Chamber was essentially

Page 501

 1     referring -- I think cited specifically to the Strugar appeal judgement

 2     in this point, which the Prosecution submits is the proper standard that

 3     Your Honours have held is the standard under 7(3).  And that is at

 4     paragraph 301, and I'll just read that:

 5             "Consequently, the Appeals Chamber cannot conclude with certainty

 6     that the Trial Chamber properly interpreted the standard of 'had reason

 7     to know' as requiring an assessment in the circumstances of the case of

 8     whether a superior possessed information that was sufficiently alarming

 9     to put him on notice of the risk that crimes might subsequently be

10     carried out by subordinates and justify further inquiry."

11             So this, Your Honours, the Prosecution submits is the proper

12     standard under Article 7(3), as has been articulated by the

13     Appeals Chamber, and as is largely repeated in the

14     Trial Chamber's [Realtime transcript read in error "Prosecution's"] own

15     standard which is put him on notice of possible unlawful acts by his

16     subordinates.  Now, the Trial Chamber may have, instead, quoted the

17     language of Strugar specifically, but in the Prosecution's submission it

18     essentially means the same thing and is the correct articulation of the

19     standard.

20             JUDGE POCAR:  Thank you for your clarification, although I

21     reserve my position on the standard actually.

22             JUDGE ROBINSON:  Please continue.  Please continue.

23             MR. WOOD:  [Microphone not activated]

24             THE INTERPRETER:  Microphone, please.

25             MR. WOOD:  Apologies, Your Honour.  Instead of "2070," it should

Page 502

 1     be "2076," that reference that my colleague pointed out, at page 14,

 2     line 14.  And I thank him for correcting that.

 3             Moving on then, Your Honours, to the third discussion point or

 4     question, which is:

 5             "Discuss the legal standard applied by the Trial Chamber in

 6     finding that Pandurevic did not have reason to know that his -- that

 7     crimes 'would be committed with discriminatory intent' as well as the

 8     Trial Chamber's factual finding that Pandurevic did not have reason to

 9     know that crimes would be committed by Zvornik Brigade members with

10     discriminatory intent."

11             Your Honours, the Trial Chamber erred here in requiring proof

12     that Pandurevic knew the crimes would be committed with discriminatory

13     intent.  Under the correct legal standard, the Prosecution must prove

14     that Pandurevic knew or had reason to know that his subordinates might

15     participate in persecutory murder.  Though, the Prosecution did not

16     challenge this erroneous legal standard on appeal, we did articulate the

17     correct legal standard in grounds 2(C) and 2(D) of our appeal, at

18     paragraphs 133, 137, and 141.

19             And I'll note also that General Pandurevic articulates a similar

20     legal test at paragraph 236 of his response.

21             This also accords, Your Honours, with the relevant

22     Appeals Chamber jurisprudence in the Strugar appeal judgement at

23     paragraph 302; the Blagojevic and Jokic appeal judgement at

24     paragraph 228 [sic]; and the Krnojelac appeal judgement at paragraphs 52

25     and 155.  In Krnojelac the Appeals Chamber held that aiders and abettors

Page 503

 1     need not share the intent of the perpetrator, but must be aware of the

 2     "discriminatory context in which the crime is to be committed."  And that

 3     is at paragraph 52 of the Krnojelac appeal judgement.

 4             So in this case then, Your Honours, the Chamber should have asked

 5     itself whether Pandurevic possessed sufficiently alarming information to

 6     be put on notice that his subordinates might commit or aid and abet

 7     murder and cruel and inhumane treatment with discriminatory intent or

 8     with the knowledge of the discriminatory context surrounding these

 9     crimes.  The only reasonable conclusion on that evidence, Your Honours,

10     is that Pandurevic by noon on the 15th of July, 1995, had, at the very

11     least, reason to know his subordinates might participate in persecutory

12     murder.

13             I've already spelled out in response to the second question the

14     knowledge that Pandurevic had, specifically that he knew a large number

15     would be executed.  He -- further, he knew, or it was easy for him to

16     infer, the discriminatory intent of the men he had been told had brought

17     the prisoners to Zvornik -- the Zvornik Brigade area, and that is Beara

18     and Popovic.  And that's a finding of the Chamber at 2088.  And he also

19     knew of the possibility that his subordinates were participating in this

20     murder.

21             Further, the Chamber found that Pandurevic presided over a

22     brigade in which there existed a "culture of ethnic bias against

23     Muslims," and that's at 2086.  This included the commonplace use of

24     ethnic slurs, including documents bearing Pandurevic's own signature.

25     This is a finding at 1398 to 1399 and 2002 of the judgement.  And in this

Page 504

 1     respect, I would draw Your Honours' attention in particular to

 2     Exhibit P2920.

 3             Though the Chamber found that this commonplace use of such

 4     language in documents might have been insufficient in itself to prove

 5     Pandurevic's genocidal or persecutory intent, it is certainly a

 6     reflection of the culture of ethnic bias that reigned in the

 7     Zvornik Brigade at the moment that he knew his subordinates might

 8     participate in this persecutory murder.

 9             The only reasonable conclusion on this evidence, Your Honours, is

10     that Pandurevic at the very least had reason to know that his

11     subordinates might commit or aid and abet murder with persecutory intent

12     or with the knowledge of the discriminatory context surrounding these

13     crimes.

14             Now, this concludes my answer to Your Honours' third question.

15     Unless there are further questions from the Bench, I'm happy to move on

16     to the next question.

17             And that is, for the record:

18             "Discuss the Trial Chamber's finding that it was not possible for

19     Pandurevic to report to the military prosecutor because of the likely

20     interference by the VRS Main Staff in any possible proceedings as well as

21     the Trial Chamber's finding that Pandurevic did take some measures to

22     address the crimes of his subordinates."

23             And this relates primarily to the Prosecution's ground 2(E),

24     Your Honours.

25             And these findings and this holding, the Chamber essentially

Page 505

 1     added an additional element to Article 7(3), by requiring that the

 2     Prosecution prove that an accused failed to take all necessary,

 3     reasonable, and certain-to-be-effective means to punish his criminal

 4     subordinates.  Rather than judging General Pandurevic by his own failure

 5     to take the necessary and reasonable measures within his means, the

 6     Chamber judged Pandurevic by speculating about the possible failures of

 7     others in carrying out his criminal referrals, had he made any.  And

 8     thus, they absolved him of having to take any measures.

 9             The law says, Your Honour, that Pandurevic, as commander of

10     criminal subordinates, was required to take the necessary and reasonable

11     steps within his own material ability to initiate and pursue the

12     disciplinary punishment process.  And that's from the Kvocka appeal

13     judgement at paragraph 316.  It must be shown that he genuinely tried to

14     prevent or punish, and that's from the Halilovic appeal judgement at

15     paragraph 63.  He must press the matter, if necessary, to the point of

16     resigning, and that's from the IMTFE judgement at paragraph 448.

17     Further, Your Honours, if a superior's attempts are hampered by somebody

18     else, he is expected to continue his efforts and/or protest against this

19     conduct.  And this is from the Strugar trial judgement at paragraph 445.

20             Now, in this case, Your Honours, rather than considering, as it

21     should have, whether Pandurevic could initiate important steps in the

22     disciplinary punishment process by referring his subordinates to the

23     military prosecutor's office, the Chamber instead focused on the

24     potential effectiveness of the military prosecutor's office itself.  And

25     in doing so, it erred in law.  Now, even, Your Honours, if this were the

Page 506

 1     proper approach, the Chamber's conclusions about the alleged futility of

 2     reporting criminal matters to the military prosecutor's office are not

 3     supported by the evidence.

 4             This evidence showed that a system of military justice, including

 5     a Prosecutor's office, had been put in place in 1992 and that it had been

 6     taken over in 1993 by the Ministry of Defence.  This is at trial

 7     judgement footnote 6042, citing the witness Butler at transcript 19607 to

 8     19608.

 9             Now, the evidence cited by the Chamber to apparently show that

10     the military prosecutor lacked independence only shows that Gvero helped

11     in setting up the military Prosecutor's office three years earlier, in

12     1992.  This is again at footnote 6042 of the judgement.  The only other

13     evidence cited by the Chamber in 6042 refers to military courts, not the

14     prosecutor's office.  And even that evidence only shows that Gvero

15     monitored the work of the courts to see how many disciplinary cases were

16     being referred to it.  This is data he used to monitor the morale of the

17     units.  As Your Honours are aware, morale was part of his competency as

18     the commander.  And this is from Milovanovic transcript 12246 to 12247,

19     again cited at paragraph -- or at footnote 6042 of the judgement.

20             So as you can see then, Your Honours, none of this evidence

21     suggests that Gvero in any way interfered with the work of the

22     prosecutor's office.  No reasonable finder of fact could have concluded

23     on this evidence that the military prosecutor "was not in fact

24     independent from the Main Staff," as the Chamber did at paragraph 2057.

25             Further, the incident cited -- described in

Page 507

 1     footnote 6043 [Realtime transcript read in error "6042"] of the judgement

 2     might show that the MUP failed in its obligations to effectively

 3     investigate Srebrenica, but it does not show that the military

 4     prosecutor's office failed in any of its obligations, and it says nothing

 5     about any interference by the VRS Main Staff.

 6             Finally, Your Honours - and this is critically important - there

 7     is nothing to suggest that General Pandurevic knew of this alleged lack

 8     of independence of the military prosecutor's office.  As such, the

 9     Chamber should not give him credit for failing to refer criminal matters

10     to an institution for all he knew was competent, professional, and

11     independent.

12             Turning then, Your Honours, to the measures that the Chamber

13     found General Pandurevic actually did take.  As the Prosecution points

14     out in ground 2(E), no reasonable finder of fact could have concluded

15     that General Pandurevic had discharged his obligation to punish his

16     criminal subordinates by issuing his self-serving interim combat reports

17     of the 15th of July and of the 18th of July and by having a brief

18     conversation with Krstic on the 27th of July.  Rather than being any

19     genuine attempts to punish anybody, these communications were plainly

20     attempts by General Pandurevic to limit his own responsibility for

21     letting the column pass.

22             Now, if you read these carefully, Your Honours, you will see

23     these interim combat reports, they don't mention crimes, they don't

24     mention subordinates, and they weren't addressed to anybody with any

25     official capacity to investigate any crimes.  Pandurevic admitted he did

Page 508

 1     not even know whether the allusions he made to crimes could even have

 2     been understood by Krstic, the man to whom they were addressed, and

 3     that's at trial judgement para 2060.  These cannot be said to be a

 4     meaningful attempt on the part of Pandurevic to discharge his duty to

 5     punish by reporting his subordinates' crimes to an investigative

 6     authority.

 7             Finally, as to the conversation of the 27th of July, Krstic's

 8     response that he would deal with the "problem" did not discharge

 9     Pandurevic's own duty to punish, especially where no disciplinary action

10     followed Pandurevic's criminal subordinates.

11             And that concludes my remarks as to this question, Your Honours.

12             I'll continue then to the final question or discussion point

13     number 5, which is:

14             "Discuss whether, in the event that the Appeals Chamber were to

15     grant Pandurevic's argument that he lacked effective control over the

16     Zvornik Brigade in the 4 to 15 July 1995 period, Pandurevic could

17     nonetheless be criminally liable for failing to punish members of the

18     Zvornik Brigade with respect to crimes committed in that time-frame."

19             Let me start first, Your Honours, by reiterating that the Chamber

20     reasonably found that between December 1992 and 3 August 1995, Pandurevic

21     had both de jure command and effective control over the Zvornik Brigade.

22     He's failed to show no reasonable finder of fact could reach this

23     conclusion.

24             Based -- because of this, General Pandurevic's case is in stark

25     contradiction to the leading case on this issue, which is of course the

Page 509

 1     16 July 2003 decision on interlocutory appeal challenging jurisdiction in

 2     relation to command responsibility in the Hadzihasanovic case.

 3             That decision, Your Honours, concerned the case of

 4     General Hadzihasanovic's co-accused, Colonel Amir Kubura, who had been

 5     charged with crimes committed by members of the

 6     7th Muslim Mountain Brigade in January 1993, months before he assumed

 7     either de jure or de facto command over that unit on the

 8     1st of April of 1993.  On these facts, Your Honours, the Chamber [sic]

 9     held that:

10             "An accused cannot be charged under Article 7(3) of the Statute

11     for crimes committed by a subordinate before the said accused assumed

12     command over that subordinate."

13             And that's at paragraph 51 of that judgement or that decision.

14             So unlike Kubura, General Pandurevic had assumed the de jure

15     command of the relevant subordinates well before those subordinates

16     committed and aided and abetted murder.  As I said, the Chamber found he

17     assumed command in December 1992 and he remained in his post until the

18     3rd of August, 1995, when he was appointed commander of a brigade tasked

19     with going to the Krajina and his Chief of Staff Obrenovic was officially

20     appointed acting brigade commander.  Now, General Pandurevic returned to

21     his post later, but for the purposes of our discussion today, what's

22     important is that no time in between these two critical events his

23     assumption of command in December 1992 and the time he left and Obrenovic

24     took over for him on the 3rd of August, 1995, had Pandurevic ever been

25     relieved of his command.  As such, the Hadzihasanovic command

Page 510

 1     responsibility decision is inapposite.  Kubura had neither de jure

 2     authority nor effective control and Pandurevic he had both.

 3             But, Your Honours, if we must assume the premise of your

 4     question, the Prosecution submits that, on the law as it stands, the

 5     answer must be no.  A superior who has not "assumed command," in the

 6     language of Hadzihasanovic, may not be held responsible for the criminal

 7     acts that his subordinates committed.  However, Your Honours, there are

 8     cogent reasons in the interests of justice to depart from the

 9     Hadzihasanovic command responsibility decision.  It is contrary to

10     customary international law in that it does violence to the object and

11     purpose of command responsibility, which is, in the words of

12     Judge Shahabuddeen:

13             "...  to ensure that there is always someone who will have

14     responsibility for ensuring that the commission of war crimes by a

15     subordinate will not go unpunished ..."

16             This is in the partial dissenting opinion of Judge Shahabuddeen

17     at paragraph 24 of the Hadzihasanovic command responsibility decision.

18             The Hadzihasanovic command responsibility decision is hostile to

19     this end because the it tolerates impunity, Your Honours.  Consider the

20     situation in which the subordinates of commander A commit a massacre of

21     10.000 prisoners at 12.00.  At 12.10, before commander A had received

22     sufficiently alarming information about this massacre to even put him on

23     inquiry notice, he is replaced by commander B.  Commander B learns of the

24     massacre at 12.20.  The soldiers under his command who had executed

25     10.000 people 20 minutes prior to his assumption of command can now no

Page 511

 1     longer be punished.  Under the Hadzihasanovic command responsibility

 2     decision, neither commander has responsibility to punish those

 3     subordinates.

 4             As Judge Hunt, a Hadzihasanovic dissenter put it, the decision

 5     leaves a "gaping hole in the protection which international humanitarian

 6     law seeks to provide for the victims of crimes committed contrary to that

 7     law."  And that's at Judge Hunt's separate and partially dissenting

 8     opinion at paragraph 22.

 9             This is why, Your Honours, the Prosecution agrees with the

10     18 ICTY and ICTR Judges, including a majority of Judges on the

11     Oric Appeals Chamber, who have expressed views contrary to the

12     Hadzihasanovic command responsibility decision.  It should be overturned,

13     for the reasons stated with far greater eloquence than I can muster by

14     Judges Shahabuddeen, Hunt, Liu, and Schomburg in their declarations and

15     dissenting opinions in Hadzihasanovic and in Oric.

16             In addition to being wrong in law and unpopular among Judges, the

17     Hadzihasanovic command responsibility decision is also contrary to common

18     sense, as its application to these facts would illustrate.

19             General Pandurevic is a commander who was unquestionably in

20     formal command of his brigade during his brief 11-day absence from his

21     desk at the Standard Barracks.  He is a commander who is leading members

22     of that same brigade in combat a mere 40 kilometres from his barracks,

23     but still within the same corps, still within the same army.  He's a

24     commander who learned immediately upon his return to his barracks that

25     his subordinates were committing criminal acts, and he's a commander who

Page 512

 1     then learned that his subordinates had been participating in the murder

 2     operation since just two days before his return.  It defies logic and

 3     common sense, Your Honours, in these circumstances to find that this

 4     commander has no obligation whatever to punish those troops.

 5             And that concludes my remarks about this final discussion point,

 6     Your Honours.  Unless there are further questions, I'll -- Your Honour,

 7     in response to General -- or to Your Honour, Judge Pocar's question, I

 8     have a further cite.  The Nahimana appeal judgement at paragraph 791:

 9             "The reason to know standard is met when the superior had some

10     general information in his possession which would put him on notice of

11     possible unlawful acts by his subordinates."

12             And this is further support for the Prosecution's argument that

13     this is the correct legal standard.  And again, unless there's any

14     questions at this moment I can turn the podium over to my colleague,

15     Mr. Kremer, unless Your Honours would prefer to take a break at this

16     time.  I'm in your hands.

17             JUDGE ROBINSON:  How long will Mr. Kremer be?

18             MR. KREMER:  I expect I will take around an hour, so this might

19     be an appropriate time to take the break, and then I can not interrupt

20     the submissions.

21             JUDGE ROBINSON:  Yes, we'll take the break and return at five

22     past.

23                           --- Recess taken at 10.44 a.m.

24                           --- On resuming at 11.08 a.m.

25             JUDGE ROBINSON:  Yes, I'm to say we have a waiver from

Page 513

 1     Mr. Miletic in respect of his absence from the proceedings for today.

 2             MR. KREMER:  Your Honours, before I start my submissions, I would

 3     like to deal with a few housekeeping matters relating to the transcript

 4     following Mr. Wood's submissions.  Line 5, page 13, the transcript says

 5     "triggered until he found out completely that his subordinates had" and

 6     Mr. Wood said "triggered until he had found out concretely that the

 7     subordinates had."

 8             The next one is page 17, line 12, Mr. Wood said, "Trial Chamber's

 9     own standard," but it was reported in the transcript as "Prosecution's

10     own standard."  Obviously that's not correct.

11             And the final correction is at line 18 on page 22.  Mr. Wood said

12     "6043," whereas the transcript says "6042."  If those corrections could

13     be made, we would appreciate it.

14             JUDGE ROBINSON:  Thanks.

15             MR. KREMER:  Now, moving to the Prosecution's submission on

16     ground 1, subgrounds 1(A) and 1(B), I'll start by saying that the essence

17     of the Prosecution appeal is that the Chamber erred by acquitting

18     Vinko Pandurevic for the mass killings committed in the Zvornik area from

19     noon on 15 July onwards.  He was convicted in part for these killings,

20     but the Chamber's findings as to the level of his responsibility do not

21     reflect the reality of the situation.

22             Prosecution submits that the Trial Chamber erred in law and/or in

23     fact when it failed to find that Pandurevic became a member of the joint

24     criminal enterprise to murder or, alternatively, became an -- or was an

25     aider and abettor in the extermination, murder, and persecutions

Page 514

 1     committed in the Zvornik area with the participation of his subordinates

 2     after he returned to the Zvornik Brigade on 15 July.

 3             There is a basic flaw in the judgement.  The Trial Chamber

 4     offered only cursory and erroneous reasons for its conclusions on the

 5     elements of contribution and shared intent for Pandurevic's joint

 6     criminal enterprise liability.  For aiding and abetting of murder,

 7     extermination, and persecutions within the murder operation, the Chamber

 8     failed to discuss or adjudicate Pandurevic's criminal responsibility at

 9     all.  But apart from these legal errors, the Chamber erred as a matter of

10     fact.  As we explain in our brief, there was overwhelming evidence of

11     Pandurevic's involvement and support of the murder operation both through

12     the exercise of command and control of his troops taking part in the

13     murder operation and his failures to meet his legal duties to protect the

14     Bosnian Muslim prisoners who were murdered in his zone of responsibility.

15     The Trial Chamber's detailed factual findings of Pandurevic's knowledge

16     and his acts and omissions, his contributions, should have led the

17     Trial Chamber to conclude that Pandurevic shared the intent and was a

18     member of the joint criminal enterprise to murder or, at the very least,

19     an aider and abettor of the crimes of the murder operation.

20             Now, how did the Trial Chamber err?  Simply, it disregarded

21     relevant evidence and in fact its own factual findings.  As a result, the

22     Chamber made inconsistent and contradictory findings on Pandurevic's

23     knowledge, leading to the challenged findings on contributions and shared

24     intent.

25             The Trial Chamber found that on 15 July Pandurevic knew of the

Page 515

 1     plan to murder the able-bodied Bosnian Muslim males from Srebrenica and

 2     his subordinates' participation in this murder operation.  Specifically,

 3     it found that on 15 July at noon Pandurevic learned of the key features

 4     of the murder plan and the Zvornik Brigade's involvement in its

 5     execution.

 6             I'll now turn to my first slide.  Your Honours can see the

 7     Chamber's relevant language at paragraph 1861 of the judgement.  In the

 8     highlighted portion it says clearly that -- is it up?

 9             "Obrenovic informed Pandurevic that pursuant to Mladic's order,

10     Beara and Popovic had brought a large number of prisoners from Bratunac

11     to the Zvornik sector, where they were executing them and that, according

12     to Jokic, there were enormous problems with the guarding, execution, and

13     burial of prisoners.  Pandurevic then asked why the civilian protection

14     was not performing the burials."

15             And although that last sentence may not seem connected, I'll

16     explain why it's very important in a moment.

17             Some hundred paragraphs later, the Chamber confirmed the finding

18     of Pandurevic's knowledge at paragraphs 1959 and 1960 and referred back

19     in its footnote to paragraph 1861.  You can see this in the next slide.

20     I refer you to, first of all, paragraph 1959, where the Chamber concluded

21     that it:

22             "...  is ultimately satisfied beyond all reasonable doubt that on

23     15 July Pandurevic was told by Obrenovic about the detention, execution,

24     and burial of the prisoners in the Zvornik area as described by PW-168."

25             It goes on at paragraph 1960, and I've highlighted the relevant

Page 516

 1     passage, that the Chamber concluded that:

 2             "...  Pandurevic thus knew that pursuant to Mladic's order, Beara

 3     and Popovic had brought a large number of prisoners from Bratunac to

 4     Zvornik where they were being executed, and that according to Jokic,

 5     there were enormous problems with the guarding, execution, and burial of

 6     these prisoners.  In light of this knowledge on the part of Pandurevic,

 7     the Trial Chamber therefore finds that at this point on 15 July" and I

 8     emphasise this "he knew of the plan to murder the able-bodied

 9     Bosnian Muslim males from Srebrenica."

10             Importantly, these passages show that the Trial Chamber rejected

11     Pandurevic's denial that he and Obrenovic had had this conversation, just

12     as it rejected most of Pandurevic's denials or innocent explanations of

13     incriminating evidence against him.  It found that Pandurevic knew that

14     the murder operation was in full swing on July 15, noon.

15             The Chamber also found that Pandurevic knew that the murder

16     operation was impacting his decision-making through his own words

17     dictated a few hours later in his 15 July interim combat report.  At

18     paragraph 4 of this report, which is replicated in paragraph 1870 of the

19     judgement, Pandurevic reported:

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

21     distributed throughout the schools in the brigade area, as well as

22     obligations of security and restoration of this terrain."

23             I'll now turn to our third slide.  As highlighted in the slide

24     before you, in paragraph 1948 the Chamber found that:

25             "...  the first part of the sentence of paragraph 4 of" his 15

Page 517

 1     July report which I just read to you, "Pandurevic is cryptically

 2     referring to the additional burden for the brigade of guarding prisoners

 3     as well as the security concerns caused by the presence of the prisoners

 4     in Zvornik."

 5             The Trial Chamber further found that:

 6             "...  the second part," and I'm quoting here, "of the sentence of

 7     that paragraph, Pandurevic is referring to the burden to the brigade of

 8     assisting with the burial of the prisoners who had been brought by others

 9     to the Zvornik area for execution."

10             And finally, the Trial Chamber concluded that the report itself

11     was:

12             "...  strong evidence that on 15 July, Pandurevic was aware not

13     only of prisoners but also of executions in the Zvornik area."

14             Your Honours, these findings are significant, as together they

15     clearly show the Chamber was satisfied that by the 15th of July

16     Pandurevic knew of the murder operation and that his Zvornik Brigade

17     resources were tied up in it.  However, when the time came to assess his

18     contributions and shared intent, the Trial Chamber then inexplicably

19     ignored these findings.

20             I'll now take you to the fourth slide, which shows the relevant

21     portion of paragraph 1972, where it does, as I've just stated.  As

22     reflected in the highlighted passage, the Chamber found that:

23             "...  having considered the precise information provided by

24     Obrenovic on 15 July, the Trial Chamber is not convinced that it is

25     sufficient in itself or in combination with the information provided by

Page 518

 1     Grujic, to find that at this point Pandurevic knew that members of the

 2     Zvornik Brigade were committing or aiding and abetting crimes.  Notably,

 3     he was neither told nor did he seek any specifics as to the involvement

 4     of the Zvornik Brigade in the murder operation, brigade members'

 5     knowledge of the executions, or the particular responsibilities of his

 6     chief of security in the operation.  While undoubtedly the information

 7     triggered his obligations under superior responsibility as will be

 8     discussed later, for the purposes of assessing his participation in the

 9     crimes and contributions to the JCE, the Trial Chamber is not satisfied

10     that the knowledge requirement for commission by omission has been met."

11             And we have a ground of appeal that deals with the error of

12     applying commission by omission standard for assessing acts and

13     contributions or acts and omissions as contributions to the JCE.

14             The Chamber contradicts itself by finding that Pandurevic did not

15     know that members of the Zvornik Brigade were involved in the crimes at

16     this stage.

17             The missing link of knowledge on the 15th at noon is precisely

18     what the Trial Chamber found at paragraph 1948 that Pandurevic's 15 July

19     report established.  And if I can just repeat the relevant portion of

20     paragraph 1948:

21             "The Trial Chamber finds that in the first part of the sentence

22     of paragraph 4 of the 15 July interim combat report, Pandurevic is

23     cryptically referring to the additional burden for the brigade of

24     guarding prisoners as well as security concerns caused by the presence of

25     those prisoners in Zvornik.  The Trial Chamber further finds that in the

Page 519

 1     second part of sentence of that paragraph, Pandurevic is referring to the

 2     burden of the brigade of assisting with the burial of the prisoners who

 3     had been brought by others to the Zvornik Brigade for execution.

 4             Paragraph 1948 makes clear that by the 15 of July, Pandurevic did

 5     know that the Zvornik Brigade, his men and his assets, were involved in

 6     the murder operation.

 7             A closer examination of paragraph 1972 reveals the error and how

 8     it came to be.  That error is that the Trial Chamber limited its

 9     assessment of Pandurevic's knowledge of the Zvornik Brigade's involvement

10     in the murder operation to what he learned in the conversations with

11     Obrenovic and Grujic on 15 July.  Paragraph 1972 tellingly ignores:  One,

12     the information Pandurevic himself revealed about the state of his

13     knowledge of the murder operation in the 15 July report; and two, the

14     contextual facts as to the involvement of the Zvornik Brigade resources

15     in the murder operation, which would have informed Pandurevic as

16     Zvornik Brigade commander on his return.

17             With this additional information, a very different picture

18     emerges than the one the Trial Chamber described in making its findings

19     at paragraphs 1972 and 1973.

20             At noon on 15 July, Pandurevic knew that Jokic had informed

21     Obrenovic that he, Jokic, "had enormous problems with the security and

22     burial of prisoners."  Because Jokic had enormous problems with security

23     and burial, Pandurevic knew that Jokic and other Zvornik Brigade members

24     were participating in security, guarding, and burial activities for the

25     murder operation.  The context of information he received shows that

Page 520

 1     Jokic did not have enormous problems alone.  The evidence shows that the

 2     security of prisoners was a responsibility customarily falling to the

 3     brigade military police.  Burials required the involvement of members of

 4     and equipment from the engineering company.  And I refer Your Honours to

 5     judgement paragraphs 1935, 2038, and transcript pages 15886, 16228 to

 6     16229.

 7             Pandurevic's response to Obrenovic's -- I'm sorry, to Obrenovic

 8     on Jokic's report - "Why the civilian protection were not performing the

 9     burials" from 1861 reflected also in trial judgement

10     paragraph 1939 [sic] - demonstrated that he understood at the very least

11     that Jokic and the Zvornik Brigade engineering company were involved in

12     burying the prisoners.  Your Honours will recall that Beara had

13     approached the civilian authorities in both Bratunac and Zvornik to

14     assist in the burial of executed prisoners.  You will find that at trial

15     judgement paragraphs 1263 to 1271 for Bratunac and

16     paragraph 1278 [Realtime transcript read in error "1287"] for Zvornik.

17     Obrenovic's account of the problems facing the Zvornik Brigade in the

18     murder operation included the guarding and the executions.  And that's

19     paragraph 1861, 1935 and 1948.  You're familiar with two of those three

20     references.  From this conversation, Pandurevic knew that members of the

21     Zvornik Brigade were actively involved in the murder operation and its

22     crimes.  This alone contradicts the Chamber's findings at paragraph 1972

23     that Pandurevic did not have sufficient information concerning the

24     involvement of the Zvornik Brigade in the murder operation.

25             But the Trial Chamber doesn't stop there.  The Trial Chamber

Page 521

 1     makes an additional finding at 1973 that Pandurevic's knowledge of the

 2     members of the Zvornik Brigade had participated in guarding prisoners who

 3     had been detained in the Zvornik area and had participated in the burials

 4     of the executed prisoners was not acquired until the evening of 16 July

 5     after the murder operation was nearly complete is equally wrong, for the

 6     same reason and the same factual basis and the same factual findings that

 7     the Trial Chamber had made earlier in its judgement which I've referred

 8     to.

 9             While Pandurevic may have learned more details over the following

10     days about the Zvornik Brigade members involved, the exact numbers and

11     locations of detention, murder, and burial sites, these specifics were

12     not necessary given his information and his knowledge on 15 July that

13     systematic murders and exterminations were underway at various sites

14     across his sector.  No reasonable Trial Chamber could have found

15     otherwise.

16             The Trial Chamber's erroneous conclusion is further reflected in

17     light of the Zvornik Brigade and Zvornik Brigade command's extensive

18     involvement in the implementation of the murder operation on 15 and

19     16 July, when Pandurevic was back in Zvornik and during which up to

20     3.000 Bosnian Muslim prisoners were executed and buried in his zone of

21     responsibility.

22             Now I'll move to the next slide.  Your Honours will see on your

23     screen Exhibit P1876 depicting the Zvornik Brigade zone of responsibility

24     which we've titled July 14, the day before Pandurevic returned to

25     Standard Barracks.  We have added information to this map to show how the

Page 522

 1     various Zvornik Brigade assets and personnel were used in the murder

 2     operation on that day.

 3             At the left of the map, you will see the seven battalion zones of

 4     the Zvornik Brigade, left-middle of the map, indicated by numbers and

 5     divided by the pink lines.  At the bottom right of the map, you can see

 6     Karakaj, which is where the Zvornik Brigade was based at the

 7     Standard Barracks.  The small red arrows that you can see at the bottom

 8     of the map represent the approaching column of Bosnian Muslims.  And the

 9     arrows are heading in the direction of the 7.pb and 4.pb on the bottom

10     left-hand side.

11             The red rectangles that you see represent schools that served as

12     places of detention for prisoners before their executions.  The red

13     circles represent execution sites.

14             As you can see at the top left, the different-coloured arrows

15     represent the movements of different types of Zvornik Brigade resources:

16     Green for military, blue for military security or military police, orange

17     for engineering assets, and purple for logistics assets.  The arrows are

18     accompanied by reference to the source of information that -- about that

19     moment -- or about that movement, I'm sorry.  I will note that the arrows

20     do not represent the exact path which the Zvornik Brigade resources or

21     personnel were sent, but do reflect from which brigades or areas the

22     Zvornik Brigade resources and personnel were sent to the relevant site.

23             Looking at this map, and you will see two more maps for each of

24     the days, the 15th and the 16th of July, first starting with the

25     14th of July map.  This map illustrates three important points:

Page 523

 1             First, as you can see on 14 July, the Zvornik Brigade was

 2     actively rendering aid to the ongoing murder operation with many

 3     resources converging on the Grbavci school and Orahovac, where the first

 4     mass execution of the murder operation was occurring in the Zvornik area.

 5     And the trial references are there, trial judgement 471 to 489.

 6             Second, the deployment of Zvornik Brigade resources to these

 7     sites was not spontaneous or arbitrary.  Orders were issued by senior

 8     staff members of the Zvornik Brigade, including Obrenovic, Pandurevic's

 9     Chief of Staff; and Jasikovac, Pandurevic's commander of the

10     Zvornik Brigade military police; and Ristic, the acting commander of the

11     4th Battalion.  Trial judgement paragraphs 471, 478 to 486, and 1879.

12             And the third point is that assets from the 4th Battalion were

13     engaged in the murder operation as the column was nearing the

14     4th Battalion's area of responsibility.  This fact will become more

15     relevant in a moment.  And I refer you to trial judgement 479 to 486.

16             And so let's just move on to the slide depicting the activities

17     of the 15th of July.  Again, this map displays the distribution of

18     Zvornik Brigade assets and personnel to the various sites relevant to the

19     murder operation.  As Your Honours know and have heard all week, it is on

20     this day that Pandurevic is sent back to Zvornik with orders from Krstic

21     to crush the column.  The column is depicted on this map at the rear

22     areas of the 4th, 6th, and 7th Battalions.  Upon receiving Krstic's

23     orders, Pandurevic made two phone calls to the Zvornik Brigade at 8.55

24     and at 9.10 in the morning.  And I refer you to transcript -- or to

25     judgement paragraph 1860 and Exhibits P1172c and P1174c.  I point out

Page 524

 1     that during those calls, Pandurevic demanded reports on the combat

 2     situation and focused in particular on the areas of the 4th, 6th, and

 3     7th Battalions.

 4             As you can see on the map, on the 15th of July, the

 5     6th Battalion, including the 6th Battalion commander Stanisic, was

 6     immersed in the murder operation.  In particular, Stanisic ordered trucks

 7     and drivers to the Petkovci school to move prisoners to the nearby

 8     execution site at the dam and then, after the shootings, to move more

 9     than 800 bodies to the mass grave.  That's found at trial judgement

10     paragraphs 499 to 501.

11             I point out at this point that apart from the resources of the

12     4th and 6th Battalions, other battalions of the Zvornik Brigade were

13     engaged in the murder operation.  On 15 July, as reflected in this map,

14     in the north of the Zvornik Brigade -- of responsibility, Zvornik Brigade

15     assets and personnel were used at the Rocevic school and the

16     Kozluk gravel pit, including soldiers in the execution of prisoners and

17     MP in the guarding of prisoners.  1st [Realtime transcript read

18     in error "11"] Battalion soldiers were dispatched to the Kula school to

19     relieve those who had been guarding prisoners there since the 14th.

20     Further, engineering resources were still engaged at Orahovac.  And I

21     refer you to trial judgement paragraphs 490, 501, 507 to 511, 515, 518 to

22     520, 530 to 531.

23             Senior members of the Zvornik Brigade were also involved in these

24     crimes, including 2nd Battalion Commander Acimovic, Zvornik Brigade MP

25     commander Jasikovac, and Zvornik Brigade duty officer and chief of

Page 525

 1     engineering Jokic, all issued orders tasking their men with guarding,

 2     executing, and burial duties at Orahovac, Rocevic school, and Kozluk.

 3     And I refer you to paragraphs 489 to 490, 507 to 511, 515, 517 to 522.

 4             This slide and my remarks demonstrate two things:  First, the

 5     extent of the Zvornik Brigade's involvement in all aspects of the killing

 6     operation, both in terms of members and resources and senior commanders

 7     from the Zvornik Brigade.  The detentions, killings, and burials of

 8     several thousand Bosnian Muslim prisoners could not have occurred without

 9     the extensive participation of the Zvornik Brigade; second, it shows that

10     the mass killings were ongoing after Pandurevic returned at noon on

11     15 July.  The killings at Petkovci dam and Kozluk gravel pit were among

12     the biggest killings in the murder operation.  The first piece of

13     information Pandurevic received from his Chief of Staff, Obrenovic, was

14     that his troops were involved in the mass killings on Mladic's orders and

15     yet he decided to let them continue.

16             It is against this backdrop of his subordinates' involvement in

17     the murder operation - with the Zvornik Brigade's resources stretched

18     thin due to the demands of the ongoing murder operation - that Pandurevic

19     drafted his 7.25 interim combat report.  And I refer you to

20     paragraph 1868.  This report is critical to the entire factual analysis

21     that I am doing now to show how wrong the Chamber -- Trial Chamber was in

22     paragraphs 1972 and 1973 in assessing his knowledge for the purpose of

23     looking at his contributions and the assessment of shared intent.

24             Pandurevic's 15 July report, which is found in full in

25     Exhibit P329, confirms his command decision to endorse the murder

Page 526

 1     operation by having permitted his brigade's continued participation in

 2     it.  After Pandurevic reports "all brigade forces are fully engaged and

 3     we have no reserves," he reports on the murder operation.  By reporting

 4     "all forces are engaged," Pandurevic is telling his superiors that he

 5     knows that his subordinates from the 4th and 6th Battalions together with

 6     his military police and engineering company are participating in the

 7     murder operation in Orahovac, Kozluk, and Petkovci.

 8             Pandurevic reports that material and other resource limitations

 9     impact on his ability to continue to "take care of these problems," which

10     the Chamber found included the Zvornik Brigade's involvement in the

11     murder operation.  Pandurevic's command authority to deal with these

12     problems was made very clear by his threat to let the column go.  And

13     that's found at paragraphs 1962 to 1963.

14             But Pandurevic made no threat to let the prisoners go.  As events

15     unfolded during the 15th and all day on the 16th, his subordinates

16     continued to guards and transport Bosnian Muslim prisoners, supply fuel

17     and ammunition to detention and execution sites, transport and/or bury

18     executed prisoners in unmarked mass graves, and, at least in one case,

19     execute prisoners.

20             And that leads me to the final slide of July 16th, again showing

21     the distribution of Zvornik Brigade assets and personnel to the relevant

22     sites.

23             By 16 July, the column was fighting the Zvornik Brigade in the

24     area near Baljkovica, near the 4th and 6th Battalions' zones.

25     Pandurevic's 15 July report showed that the Zvornik Brigade was desperate

Page 527

 1     for resources and was calling for reinforcements.  But at the same time,

 2     orders from the Zvornik Brigade commanders dispatched resources away from

 3     the front lines, continuing to dedicate them to the murder operation.

 4             Zvornik Brigade 6th Battalion soldiers travelled away from the

 5     front lines to Petkovci school to assist in moving bodies to the

 6     Petkovci dam, paragraph 1881.

 7             The commander of the 1st Battalion work platoon, Lakic, ordered

 8     men to the Kula school to stand guard while prisoners were put on buses

 9     that brought them to the Zvornik Brigade's military farm near Branjevo

10     for execution by the 10th Sabotage Detachment, and that's at paragraphs

11     533 to 535, 537 to 542.

12             Lakic then ordered his men to the Pilica cultural centre, where

13     soldiers from Bratunac had executed another 500 prisoners.  Lakic's men

14     loaded the bodies into trucks and transported them to the

15     Branjevo Military Farm for burial.  Burials at Branjevo had to continue

16     into the next day, trial judgement paragraphs 542 to 546.

17             Zvornik Brigade engineering chief Jokic ordered his 2nd Platoon

18     to Kozluk to continue burying those who had been executed the day before.

19     An excavator was also dispatched.  That's at paragraph 521 to 522 and

20     Exhibit P301.

21             Zvornik Brigade engineering personnel were also at Orahovac that

22     day.  A truck repeatedly travelled between two mass grave-sites, and

23     that's found at Exhibits P297 and P298.

24             And finally, the map reflects the Zvornik Brigade military police

25     spent all day 16 July at three key murder operation sites in Pilica,

Page 528

 1     Rocevic, and Kula, and that's Exhibit P296.

 2             It is in this setting that Pandurevic realised that he could not

 3     fight the column and the 2nd ABiH Corps -- the 2nd Corps of the ABiH and

 4     that his men and the town of Zvornik were at risk.  So he decided to

 5     negotiate a resolution to allow the column to pass through

 6     Zvornik Brigade territory into ABiH territory.  His offer to allow the

 7     civilians to pass and the military component to surrender was rejected.

 8     The fighting continued.  Finally, an agreement to let the entire column

 9     through Zvornik Brigade lines was implemented between 1.00 and 2.00 p.m.

10     The agreement included a cease-fire.

11             Why, you say or you ask yourself, is a cease-fire relevant?

12     Because it would have allowed Pandurevic time to focus on his other

13     immediate problem, specifically the murder operation, the only other

14     burden on his men and materials at the time.

15             And what happened?  When the corridor was opened on the afternoon

16     of 16 July and the column was allowed to pass, hundreds of Muslim

17     prisoners were being murdered at the Branjevo Farm and 500 Muslims waited

18     for execution at the Pilica cultural centre later that day.  Significant

19     amounts of men and materials of the Zvornik Brigade were involved in

20     conducting these executions, as well as the continuing burial operations

21     at Orahovac, Petkovci, and Kozluk.  I refer you to paragraphs 521 to 522,

22     532 to 547, 1881, Exhibits P297, P298, and P301.

23             Like his 15 July interim combat report, Pandurevic's 16 July

24     interim combat report, found at Exhibit 7DP330, confirmed his command

25     decisions.  He reported on the attacks by the 2nd Corps and the attacks

Page 529

 1     from the column.  He also reported on his decision to let the column

 2     through.  While he does not report on his third problem, his brigade's

 3     burden caused by the murder operation which continued without incident

 4     with the support of the Zvornik Brigade resources, Pandurevic's command

 5     decisions ensured the successful completion of the murder operation.  The

 6     cease-fire to let the column pass eliminated the risk that

 7     Zvornik Brigade resources [sic] engaged in the murder operation might be

 8     needed to fight the column at the front line.

 9             As I have already mentioned, Pandurevic was not afraid to disobey

10     superior orders.  By letting the column pass through Zvornik Brigade

11     lines to Bosnian Muslim territory, Pandurevic chose the safety of his men

12     and the protection of the VRS positions along the combat lines over his

13     clear superior orders to crush and destroy the column.  Similarly, the

14     option to protect the prisoners being murdered in the Zvornik zone of

15     responsibility was within Pandurevic's material ability.  And I refer you

16     to a more fulsome discussion in our appeal brief at paragraph 77 to 82.

17             In this full context, Pandurevic's knowledge and contributions

18     are clear and demonstrate beyond any reasonable doubt that he shared the

19     intent of the JCE to murder.  Once he learned of Mladic's manifestly

20     illegal order to carry out the murder operation in his zone of

21     responsibility, Pandurevic, as a commander, had a choice.  He could

22     choose to accept the order and command the fulfilment of the murder

23     operation tasks assigned to his brigade, which he did, or he could refuse

24     the order, rescind Obrenovic's initial command, and cease his brigade's

25     involvement in the murder operation.  Because Pandurevic chose to adopt

Page 530

 1     Mladic's manifestly illegal order, he must accept responsibility for that

 2     decision.

 3             And as I have said in my submissions and I hope convinced you

 4     from the discussion of the facts, if the Chamber had looked at the

 5     interim combat reports and the facts on the ground and the participation

 6     of his brigades in the murder operation in light of those reports, the

 7     only conclusion you can come to on his knowledge and his contributions is

 8     together they equalled his shared -- or proved and established his shared

 9     intent.

10             Although the plan to murder the Bosnian Muslim prisoners did not

11     originate from Pandurevic, his endorsement and participation ensured the

12     operation's success.

13             In conclusion, the only reasonable conclusion is that Pandurevic

14     decided that the murder operation tasks should be carried out.

15     Pandurevic's intent meets the JCE threshold.

16             In respect of the Prosecution's alternative ground of aiding and

17     abetting, our position is that the only reasonable conclusion open to the

18     Trial Chamber, had it done the proper analysis and made the required

19     findings, was that Pandurevic knew that the Bosnian Muslim prisoners were

20     brought to the Zvornik zone of responsibility to be executed and that by

21     allowing his brigade to continue to participate in the murder operation

22     by guarding, burying, and providing logistical support to the executors

23     or to the people committing the killings, he would assist in murder,

24     extermination, and persecutions.

25             I refer to the Krstic appeal judgement which succinctly describes

Page 531

 1     the situation that we find ourselves in here at paragraph 137:

 2             "Radislav Krstic was aware that the Main Staff had insufficient

 3     resources of its own to carry out the executions and that, without the

 4     use of Drina ... resources, the Main Staff would not be able to implement

 5     its genocidal plan.  Krstic knew that by allowing Drina Corps resources

 6     to be used he was making a substantial contribution to the execution of

 7     the Bosnian Muslim prisoners.  Although the evidence suggests that

 8     Radislav Krstic was not a supporter of the plan, as Commander of the

 9     Drina Corps he permitted the Main Staff to call upon Drina Corps

10     resources and to employ those resources.  The criminal liability of

11     Krstic is therefore more properly expressed as that of an aider and

12     abettor ..."

13             But we're talking here about Krstic in the context of aiding and

14     abetting genocide or committing genocide, a discussion that is different

15     slightly for Pandurevic because Pandurevic was found not to have

16     genocidal intent and that has not been appealed.

17             But the same analysis and conclusion can apply in the alternative

18     to Pandurevic, but our primary position is, and based on my submissions

19     or our submissions, is that Pandurevic's intent was shared with the other

20     JCE members, and that is to fully support and assist through his orders

21     the murder operation in full knowledge of it and all of his contributions

22     substantially contributed to -- or significantly contributed to it in the

23     JCE context and substantially contributed to it in the aiding and

24     abetting context.

25             I'm not sure if I need get into this, it's been covered in

Page 532

 1     earlier submissions by my colleague, Mr. Milaninia, and that is the

 2     specific direction issue.  If Your Honours choose to go there and the

 3     Perisic point, simply the Prosecution submits that the culpable link

 4     connecting General Pandurevic to the crimes is evident from his

 5     subordinates' participation in the murder operation, his knowledge of it,

 6     and the fact that their contribution - as is evidenced by the paragraphs

 7     referred to connected with the charts that I've shown - demonstrate that

 8     the contribution was substantial.  Pandurevic was present in the zone of

 9     responsibility when the crimes were being committed, he had knowledge of

10     them and his subordinates' involvement.  His command and control over the

11     troops, as demonstrated by his actions, orders, and reporting show and

12     make the culpable link.  And ultimately the fact that his -- and as we

13     can see the proximity to the crimes and the locations of -- to all of the

14     crimes, whether it be execution sites, detention centre, also confirms

15     the links.

16             Those are my submissions on why the Trial Chamber erred, both in

17     law and in fact, in acquitting General Pandurevic of being a member of

18     the joint criminal enterprise to murder or, in the alternative -- and

19     also acquitting him in the alternative of aiding and abetting murder,

20     extermination, and persecutions.

21             Subject to any questions which you may have, those are my

22     submissions.  And depending on if there's any time remaining, I would

23     pass on to Mr. Wood for short comments on sentencing.  But before I do --

24     before I -- perhaps before Your Honour answers that question, a couple of

25     housekeeping issues.  At line 14, page 36, "1287" should be "1278."  And

Page 533

 1     at line 3 on page 40, it says "11 Battalion" and that should read

 2     "1st Battalion," so obviously a typographical mistake.  But as to time,

 3     I'm in Your Honours' hands.

 4                           [Appeals Chamber confers]

 5             JUDGE ROBINSON:  We have no questions.

 6             MR. KREMER:  Okay.  Thank you.

 7             MR. WOOD:  Finally then, Your Honours, a few words about

 8     sentencing.  General Pandurevic bears responsibility for the forcible

 9     transfer of tens of thousands of Bosnian Muslims, men, women, and

10     children, and the murders of up to 2500 Bosnian Muslim men and boys.

11     Those killed included boys as young as 14 and men as old as 84.

12     General Pandurevic also allowed ten wounded soldiers to be handed over to

13     a man he knew would execute them.  His crimes continued to resonate in

14     the Bosnian Muslim community 18 years on, even as he looks forward to the

15     application for early release that his counsel has told you will follow

16     these proceedings.  He failed at every decisive moment to do what the

17     international community demanded of him, to protect prisoners even though

18     all that was required of him was to issue a simple order.

19             By any measure, Your Honours, in any courtroom, in any country

20     anywhere in the world, these crimes would be considered to be so grave as

21     to merit a sentence far greater than 13 years.  It's a sentence that's so

22     manifestly inadequate that it shows the Chamber failed to exercise its

23     discretion properly.

24             First, the sentence fails to take into account the inherent

25     gravity of General Pandurevic's failure as a commander to prevent

Page 534

 1     breaches of international humanitarian law.  Rather than act to protect

 2     the prisoners, Your Honours, he presided over a brigade with a culture of

 3     ethnic bias against Bosnian Muslims, a brigade that took part in

 4     unspeakable episodes of murder and cruel treatment.

 5             Second, as we've argued, his sentence bears no relation

 6     whatsoever to the likely sentences of his subordinates for the roles they

 7     played in the murders and forcible transfers.  In Bosnia and Herzegovina,

 8     the maximum sentence for the gravest crimes is 45 years.  In comparison,

 9     his 13-year sentence is a trifle.

10             Finally, Your Honours, the Chamber erred in granting any

11     mitigation for his role in letting the column pass through his lines.

12     Remember, Your Honours, the people in this column were people that he

13     himself had forcibly expelled from Srebrenica in the previous days and

14     they were people that he did his level best to murder in the 24 hours

15     following his return to the Zvornik Brigade.  He put these people in

16     grave danger, he worked hard to kill them, but he simply couldn't.  A

17     hostage taker shouldn't get credit for freeing hostages who had already

18     escaped his clutches despite his best efforts to kill them.  His act of

19     letting the column pass cannot be understood as any kind of humanitarian

20     gesture.  Rather, it was an expression of his failure as a commander to

21     do as he was told, which is to crush and to kill the column.

22             For these reasons, Pandurevic's crimes demand a sentence at the

23     highest end of the sentencing spectrum.  His 13-year sentence is an

24     affront to the victims in this case and it fails to adequately express

25     the outrage of the international community.  The Prosecution asks you to


Page 535

 1     revise this sentence and impose a penalty commensurate with the gravity

 2     of Pandurevic's crimes and his conduct.  And that concludes our brief

 3     remarks on sentencing.

 4                           [Appeals Chamber and Legal Officer confer]

 5             JUDGE ROBINSON:  Counsel for Mr. Popovic.  Yes.

 6             MR. ZIVANOVIC:  Thank you, Mr. President.

 7             Your Honours, the Defence of Popovic maintains that Mr. Popovic

 8     is neither guilty of genocide nor of conspiracy to commit genocide.

 9     These arguments are set out in our response to the Prosecution's appeal

10     brief paragraphs 2 to 8 and in our appeal in paragraphs 17 through 27, 30

11     through 35, 41, 49, 54, 65, 67, 863 [sic], 171 through 178, 191, 195, 238

12     through 239, 255, 330 -- 303, excuse me, 349, and 402 and in the six

13     grounds of our notice of appeal, paragraphs 394 through 397.

14             Then it not be repeated at length here.  I will repeat, however,

15     that the Trial Chamber construed every piece of evidence in the way the

16     most harmful for Popovic, including finding him guilty for conspiracy to

17     commit genocide.  Indeed, reference to fairness in this context is almost

18     cynical.

19             I will not repeat our arguments from the response brief -- from

20     our response brief, but I'd just like to comment yesterday's reference by

21     the Prosecution to Gatete appeal judgement as to cumulative convictions

22     but for genocide and conspiracy to commit genocide.  We submit that such

23     conviction from the Appeals Chamber would violate the right on the appeal

24     provided in the Article 24(2) of the Statute.  Precisely, Mr. Popovic, in

25     case of conviction, would be deprived of his right to appeal, and on this


Page 536

 1     point we refer to the dissenting opinion of Judge Pocar in

 2     Gatete appeal judgement.  It is in chapter 7-2.

 3             I will just quote this part, where it's stated:

 4             "The absence of any right whatever to appeal such a conviction

 5     say in the case where the matter is remitted to the Trial Chamber is

 6     likely to infringe upon the fundamental principle of fairness recognised

 7     both in international law and many national legal systems."

 8             In this context we believe that such a conviction would violate

 9     the principle -- the elementary principle of fairness too.

10             It concludes my submission, Your Honour.  Thank you.

11             JUDGE ROBINSON:  Thank you.

12                           [Appeals Chamber and Legal Officer confer]

13             JUDGE ROBINSON:  Counsel for Mr. Beara.

14             MR. SEPENUK:  Thank you, Mr. President, and may it please the

15     Judges of this Chamber.

16             The actus reus of conspiracy to commit genocide is the act of

17     entering into an agreement to commit genocide.  There was no evidence

18     adduced at trial that Mr. Beara entered into any such agreement.  The

19     Prosecution did not prove beyond a reasonable doubt that Mr. Beara was

20     present at any meetings at which the Trial Chamber determined the plan

21     was formulated.  The Trial Chamber found that Mr. Beara's conduct - and

22     that's in paragraph 1318 of the Trial Chamber's judgement - demonstrated

23     that he had genocidal intent.  We have already argued that Mr. Beara did

24     not possess genocidal intent, given his acquittal of the joint criminal

25     enterprise to forcibly deport the women and children from Srebrenica.

Page 537

 1     This showed, again, as we previously argued, that Mr. Beara did not have

 2     the genocidal intent to destroy that part of the group consisting of the

 3     Bosnian Muslims of Eastern Bosnia.  While the Trial Chamber did acquit

 4     Mr. Beara of the forcible transfer charge, we note further the

 5     Trial Chamber's finding that Mr. Beara knew of the forcible transfer but

 6     did not make any significant contribution toward the forcible transfer

 7     operation.  We note for the sake of accuracy and for the relevancy, if

 8     any, when considered with the conspiracy charge, that even the

 9     Trial Chamber's conclusion that Mr. Beara knew of the forcible - and I'm

10     underlining the word "forcible" - even the Trial Chamber's conclusion

11     that Mr. Beara knew of the forcible transfer is open to serious doubt.

12     There was only one piece of evidence in the case that showed any

13     knowledge of Mr. Beara of the transfer of the women and children, and

14     that consisted of the testimony of the witness Celanovic, the

15     desk officer of the Bratunac Brigade.  Celanovic testified that on the

16     evening of July 13th he was meeting with Mr. Beara and he told Mr. Beara

17     that he, Celanovic, had security concerns about the number of prisoners

18     in the area.  And he was asking Beara when they could be transported out

19     of the Bratunac area.  According to Celanovic's testimony - and that's on

20     pages 6640-6641 of the trial transcript - Mr. Beara stated that they

21     would have to wait until the other vehicles that had transported the

22     women and children had returned.  And that's in the Trial Chamber's

23     judgement at paragraph 1307.

24             Celanovic's testimony does show that Mr. Beara had some knowledge

25     of the fact that women and children were being bussed from Srebrenica,

Page 538

 1     but where is the evidence that Mr. Beara knew that this was a forcible

 2     transfer operation?  We say there was no such evidence.  It is

 3     Directive 7 and following directives to that that are usually cited by

 4     the Prosecution to show the knowledge of the Main Staff, of which

 5     Mr. Beara was a member of course, that the expulsion of Bosnian Muslims

 6     from the Srebrenica enclave was the ultimate goal.  But as stated by the

 7     Appeals Chamber in the Krstic case at paragraph 90, and I quote:

 8             "Directives 7 and 7.1 are insufficiently clear to establish that

 9     there was a genocidal intent on the part of the members of the Main Staff

10     who issued them.  Indeed, the Trial Chamber did not even find that those

11     who issued Directives 7 and 7.1 had genocidal intent.  Concluding,

12     instead, that the genocidal plan crystallised at a later stage."

13             As in the Krstic case, the directives and the meetings leading up

14     to the July 13/14 time-period, at which Mr. Beara was not present, are

15     the only evidence that the Prosecution offered of an alleged conspiracy

16     to commit genocide in Mr. Beara's case.  However, the Trial Chamber did

17     not even refer to any such evidence, concluding that Mr. Beara was guilty

18     of conspiracy, and that's paragraph 1322 of the judgement.  Instead, the

19     Trial Chamber stated very generally, and I quote:

20             "Conspiracy to commit genocide can be inferred from co-ordinated

21     actions by individuals who have a common purpose and are acting within a

22     unified framework.  Evidence has already been examined of the

23     co-ordinated actions and unifying framework of those who participated in

24     the operation to murder the able-bodied Bosnian Muslim males from

25     Srebrenica in July 1995, including Beara."

Page 539

 1             And at this point the Trial Chamber refers to footnote 4316,

 2     which cite passages relating only to the joint criminal enterprise to

 3     murder.  Continuing with my quotation from the Trial Chamber:

 4             "Based upon this evidence, the Trial Chamber concludes that Beara

 5     entered into an agreement to commit genocide and he himself possessed

 6     specific intent to commit genocide."

 7             As with its conviction of Mr. Beara of genocide, the

 8     Trial Chamber based its finding of conspiracy to commit genocide solely

 9     on Mr. Beara's participation in the joint criminal enterprise to murder.

10     Our argument is similar regarding genocidal intent here on the conspiracy

11     conviction to our argument on the genocide conviction.  The evidence that

12     Mr. Beara participated in the murder operation is not enough to show that

13     he's guilty of the act of entering into an agreement to commit genocide,

14     especially in light of his lack of genocidal intent via his acquittal on

15     the forcible transfer charge.  If Mr. Beara did not have genocidal

16     intent, he did not commit genocide.  If he did not commit genocide, the

17     Trial Chamber cannot reasonably conclude that the alleged genocidal act,

18     which is murder only in Mr. Beara's case, demonstrated conspiracy to

19     commit genocide.  Inferring conspiracy from acts of murder - awful as

20     that is - but inferring conspiracy from acts of murder is not the only

21     reasonable inference to be drawn, especially given the absence of any

22     direct evidence of any act by Mr. Beara constituting entering into an

23     agreement to commit genocide.

24             And that, Your Honours, is our presentation.  I'd be happy to

25     answer any questions if you have them.


Page 540

 1             JUDGE ROBINSON:  Thank you very much.  We have no questions.

 2             I understand counsel for Mr. Miletic.

 3             MS. FAVEAU: [Interpretation] Your Honours, I'll be extremely

 4     brief.  If we consider the submissions of the Prosecution from a purely

 5     legal standpoint without referring to the facts, the Prosecution is

 6     absolutely right; however, the logic of the Prosecution is reversed

 7     because the Trial Chamber did not commit an error by acquitting Miletic

 8     for Count 5 but by convicting him for -- on Count 4, that's the basis of

 9     our arguments on the factual basis that our arguments rest for acquittal

10     on charge 4.  I refer to the submissions I set out yesterday.  Thank you.

11             JUDGE ROBINSON:  Thank you very much.  We will take the break now

12     and, evidently, we can't break for an hour as I suggested, we must break

13     for one and a half hours.  So we should be back at five minutes to 2.00.

14                           --- Luncheon recess taken at 12.24 p.m.

15                           --- On resuming at 1.57 p.m.

16             JUDGE ROBINSON:  Yes, counsel for Mr. Nikolic.

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

18     honourable Judges.  Good afternoon to everyone in and around the

19     courtroom.  I'd like to apologise in advance, I do not see one of the

20     members of the Bench and I apologise for this.

21             Mr. President, I will have the pleasure this afternoon of

22     responding to the Prosecution appeal on behalf of Mr. Nikolic.  In doing

23     so, I will respond to both questions put to the parties in the

24     Appeals Chamber's order dated 6 November 2013.  The Prosecution advances

25     two grounds of appeal, namely, ground 7, that the Trial Chamber erred in


Page 541

 1     finding that Drago Nikolic did not have genocidal intent; and also

 2     ground 8, that the 35-years' imprisonment sentence imposed on

 3     Drago Nikolic is inadequate and too low.

 4             With respect to this second ground, ground number 8 on sentence,

 5     I believe, Mr. President, that we have made our position very clear

 6     throughout this appeal, that we believe the sentence to be excessive.

 7     That was in our appeal brief from paragraphs 5 to 45 in -- concerning the

 8     Prosecution appeal, we rely on our argument which can be found in our

 9     response at paragraphs 191 to 259.

10             Of course, Mr. President, you will not be surprised to hear that

11     it is our position that both Prosecution grounds should be dismissed in

12     their entirety.  Before I begin, however, I wish to bring two preliminary

13     matters, and the first one has to do with something found in the

14     Prosecution response at paragraphs 254, which I would like to draw the

15     Appeals Chamber's attention to.  In its brief and reply and again this

16     morning, Mr. President, arguing ground 7, the Prosecution returns to the

17     issue of the actions which would have been taken by Drago Nikolic which

18     he would have pursued in the persistent and determined manner.  I refer

19     here to paragraphs 247 to 262.

20             Now, in this regard paragraphs 254 reads as follows:

21             "During the morning of 14 July, Nikolic called Slavko Peric,

22     assistant commander for intelligence and security, of the 1st Battalion

23     of the Zvornik Brigade.  Nikolic repeated the contents of a coded

24     telegram sent earlier by the Zvornik Brigade command."

25             The words I wish to draw the attention of the Appeals Chamber on

Page 542

 1     are simply those words "coded telegram."  The reason being is that in

 2     this paragraph the Prosecution refers to paragraphs 1359 and 1360 of the

 3     judgement, where there is absolutely no mention of a coded telegram.  Is

 4     this an oversight?  We don't believe so, Mr. President.  What is

 5     important, however, is that the only person who has mentioned a coded

 6     telegram in this case or the use of a coded telegram is the commander of

 7     the 2nd Battalion, Acimovic.  And of course you've heard our argument

 8     previously that we say that he advanced the argument of coded telegrams

 9     to shield his responsibility and that the Trial Chamber erred in holding

10     that this was a peripheral matter.  It is not, Mr. President.

11             Now, accordingly, now that we have this issue of coded telegrams

12     associated with Drago Nikolic's intent, I think it is important that I

13     come back quickly on the pattern of telephone calls which were made in

14     this case because Drago Nikolic has been associated with these telephone

15     calls.  As a matter of fact, the Trial Chamber at paragraph 509 stated

16     that there was such a pattern of telephone calls.  That was in dealing

17     with the issue of the 2nd Battalion and Acimovic.

18             I'd just like to mention briefly, Mr. President, that three

19     battalions receive such telephone calls related to the arrival of

20     prisoners, at least three that we know of.  The 4th Battalion, located in

21     Orahovac, I refer to transcript 10062, would have received a telegram on

22     14 July, and that is Lazar Ristic -- not a telegram, I apologise, a phone

23     conversation.  And the phone conversation came from Trbic, who asked

24     Lazar Ristic to send some men over to provide security at the school

25     because there was problems with prisoners who wanted to escape.

Page 543

 1             The second telephone conversation we are aware of happened with

 2     the 6th Battalion, and that was also on 14 July, and is related in the

 3     testimony of Marko Milosevic and Ostoja Stanisic.  And that is at

 4     transcript 13300-13301.  And they say that Jokic, the duty officer, and

 5     not Nikolic called them to inform them to inform them of the arrival of

 6     the prisoners at Petkovci school.

 7             The third battalion which reserved [sic] a call and a telegram,

 8     which, as I mentioned a few minutes ago, was not coded is the 1st

 9     Battalion and that is found of course in the testimony of Slavko Peric,

10     which can be found at 11375, transcript, 11376.  And this -- what you

11     will find in this transcript is that Mr. Pelemis, the deputy commander of

12     the battalion, met with his command staff at the battalion and he

13     basically said that there was someone from the brigade who had called and

14     that they had to go to the school.  My colleague mentioned that earlier

15     this week.  I will not come back to what was mentioned concerning this

16     telephone conversation.

17             The issue I want to raise, however, Mr. President, is that when

18     we look at the alleged pattern of phone calls, the pattern is such that,

19     one, there is no coded telegram, which helps in determining the issue of

20     Acimovic and the 2nd Battalion; and two, the pattern of telephone calls

21     really, when associated with Drago Nikolic, is not an element that will

22     be of any assistance to you, we submit respectfully, in determining his

23     intent.

24             The Prosecution - and I'm always on my preliminary matter - also

25     mentions in its brief reply and again today what happened at Orahovac.


Page 544

 1     And at paragraph 252 of its appeal brief, the Prosecution raises the

 2     issue of the execution site, saying, and I quote:

 3             "Nikolic and Popovic told the soldiers what to do."

 4             Now, that's at the execution site.  Now, with respect to this

 5     finding of the Chamber at paragraph 252, I wish to place on the record

 6     two decisions.

 7             Mr. President, can we move into closed session, please.

 8             JUDGE ROBINSON:  Yes.

 9                           [Private session]

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22                           [Open session]

23             THE REGISTRAR:  Your Honours, we're back in open session.

24             MR. BOURGON:  Thank you, Mr. President.

25             I now move to the first question posed by the Appeals Chamber,


Page 545

 1     and this question deals of course with our submission that the

 2     Prosecution exceeded its notice of appeal in the arguments presented in

 3     its appeals brief.  I'll be very short on this one, Mr. President.

 4     Although we do believe that technically we are right and that the

 5     Prosecution should not have exceeded its notice of appeal, and although

 6     we believe it was inappropriate for the Prosecution to, in a reply to

 7     which Mr. Nikolic has no standing to raise any submission in a reply, to

 8     ask for its notice of appeal to be amended pursuant to Rule 108.

 9             Nonetheless, Mr. President, considering that the Appeals Chamber

10     will necessarily have to consider the generally accepted factors which

11     the Prosecution -- in order to consider whether the Prosecution has met

12     its burden to show that no other reasonable Trial Chamber could have

13     concluded that -- the conclusion that Drago Nikolic possessed the

14     necessary mens rea for genocide is not the only reasonable inference

15     available.  We do not intend to pursue this issue any further.

16             I now move to ground 7 of the Prosecution or seventh ground of

17     appeal.  At paragraph 1407, the Trial Chamber found the following that:

18             "Soon after the inception of his involvement in the killing

19     operation and certainly by the time of executions at Orahovac, Nikolic

20     knew that this was a massive killing operation being carried out with a

21     genocidal intent."

22             Of course, Mr. President, the Appeals Chamber knows very well

23     that we are challenging this finding, but let me just go on for the time

24     being.  Considering that the -- sorry, the Trial Chamber then held as

25     follows immediately following this paragraph:

Page 546

 1             "Having considered and weighed all of the above factors,

 2     individually and cumulatively, the Trial Chamber is not satisfied that

 3     the only reasonable inference to be drawn from Nikolic's act is that he

 4     shared the genocidal intent."

 5             The Trial Chamber went on to say in the same paragraph a little

 6     later that:

 7             "In these circumstances, the stringent test for specific intent

 8     is not met and the Trial Chamber therefore finds that Nikolic did not

 9     participate in the JCE to murder with genocidal intent."

10             Now, of course, the key words here, Mr. President, are "intent is

11     not the only reasonable inference."  And before I go on, I draw the

12     attention of the Appeals Chamber to the fact that of course the

13     Prosecution has the burden to show that this was not the only reasonable

14     inference, and that we say, based on what they argued this morning,

15     amongst other things, the fact that when Drago Nikolic chose to act with

16     resolve and purpose, that would have been sufficient according to the

17     Prosecution, we say it is absolutely not sufficient.

18             Now, we all know, Mr. President, that an inference drawn from

19     circumstantial evidence to establish a fact, especially on which a

20     conviction relies, that inference must be the only reasonable one that

21     could be drawn from the evidence presented.  That of course

22     Stakic appeal, paragraph 219.  This is significant, in our view, because,

23     as held by the Trial Chamber, direct evidence of genocide, intent, is

24     rare; instead, it must be inferred from the acts, the conduct, knowledge

25     of the accused, as well as from other relevant circumstances,

Page 547

 1     judgement 1398.

 2             In this case, Mr. President, in addition to finding that

 3     Drago Nikolic did not harbour genocidal intent because this is not the

 4     only reasonable inference which could be drawn, the Trial Chamber

 5     actually went further and identified another reasonable inference

 6     available on the basis of the evidence.  The Trial Chamber held the

 7     following:

 8             "Another reasonable inference is that Nikolic's blind dedication

 9     to the security service led him to doggedly pursue the efficient

10     execution of his assigned task in this operation."

11             Now, in fact, Mr. President, not only is this inference not the

12     only reasonable one available on the basis of the evidence, there are

13     even other reasonable inferences that can be drawn and I'll get back to

14     this later in my argument.  We submit, Mr. President, that the

15     Prosecution failed to demonstrate - and that is the answer of course to

16     the second question posed by the Appeals Chamber - that it failed to show

17     that considering the Trial Chamber's error whether there would be a

18     change to the Trial Chamber's conclusion, that it is not the only

19     reasonable inference that can be drawn that Drago Nikolic harboured

20     genocidal intent.

21             My argument will be presented in four sections.  I will first

22     begin with the fact that the Trial Chamber did consider all generally

23     accepted factors related to genocidal intent; secondly, the Trial Chamber

24     correctly considered all appropriate factors and the Prosecution failed

25     to show an error on behalf of the Trial Chamber.  I will move on to

Page 548

 1     explore with the Appeals Chamber the lack of contextual knowledge of

 2     Drago Nikolic, and I will conclude by what we figure or what we

 3     respectfully submit is the determining criteria in this regard.

 4             Moving on to the generally accepted factors related to genocidal

 5     intent, contrary to the Prosecution's submission the Chamber did consider

 6     all generally accepted factors.  On this basis, the Trial Chamber rightly

 7     found that Drago Nikolic did not entertain the required mens rea for

 8     genocide.  Our detailed argument can be found in our response brief at

 9     paragraphs 28 to 34.

10             The Prosecution simply did not succeed in showing that the

11     Trial Chamber erred.

12             At paragraphs 823, the Trial Chamber specifically stated that the

13     generally accepted factors from which an intent to destroy may be

14     inferred, of course in the absence of direct evidence.  These factors,

15     Mr. President, were used with Beara, they were used with Popovic, and

16     they were used with Nikolic, albeit commensurate with their acts based on

17     the findings of the Chamber.  Secondly, and more importantly,

18     Mr. President, contrary to the Prosecution's argument, it stems from the

19     Trial Chamber's finding that not a single general accepted factor was

20     left out.  And let's explore together, if you want, Mr. President, some

21     of these findings.  The Trial Chamber did consider the scale and scope of

22     the killing operation, that is, at judgement 1405.  In fact, the

23     Trial Chamber went further.  It considered the lack of Drago Nikolic's

24     involvement in many aspects of the operation leading to the conclusion

25     that he was unaware of the full scale and scope.  That is judgement

Page 549

 1     1402-1403, 1410, 1412.

 2             The Trial Chamber considered Drago Nikolic's contribution to the

 3     JCE after learning of the others' genocidal intent, judgement 1407.  Once

 4     again, the Trial Chamber went further.  It considered the limited scope

 5     of his involvement, judgement 1402-1403 and 1410 to 1412.  The

 6     Trial Chamber also considered that Drago Nikolic witnessed the targeting

 7     of Bosnian Muslims, judgement 1404.  However, the Trial Chamber also

 8     considered Drago Nikolic's belief that prisoners, as opposed to any other

 9     description of victims, were being brought in to the Zvornik area,

10     judgement 1402-1403, and that not every prisoner would be executed.  Now,

11     of course this applies to the prisoners from the Milici hospital, and

12     that is judgement at paragraph 1411.

13             The Trial Chamber considered the repetitive nature of

14     Drago Nikolic's action, holding that Nikolic's act and participation did

15     provide some evidence of a genocidal intent on his part or from which

16     such an intent could be inferred, judgement paragraph 1409.  However, the

17     Trial Chamber also considered the limited temporal scope of his acts and

18     his withdrawal from the criminal acts prior to their completion.  Of

19     course I'm referring here, at the minimum, to what happened in

20     Branjevo Farm and the Pilica cultural centre, judgement 1410.

21             The Trial Chamber also considered Drago Nikolic's perpetration of

22     cruel and inhumane treatment, judgement 1408, 1425.  But the

23     Trial Chamber also considered his lack of responsibility for very

24     important aspects of the genocidal operation, such as the killings at

25     Kravica warehouse, the killings of the Milici hospital patients, the

Page 550

 1     reburial operation, and others, judgement 1402-1403 and 1411.

 2             The Trial Chamber considered Drago Nikolic's intent for the

 3     underlying crimes in light of his membership in the alleged JCE to kill,

 4     judgement 1403.  But, again, at the same time, the Trial Chamber also

 5     considered that Drago Nikolic was not involved in the forcible transfer

 6     and his corresponding lack of intent for an important component of the

 7     genocide.  Just in this specific regard, Mr. President, I'd like to bring

 8     the attention of the Trial [sic] Chamber to the indictment because the

 9     indictment defined the genocide as including four components, and we

10     believe that this is important when you consider those four components in

11     drawing whether the inference of genocidal intent can be drawn when you

12     look at his participation in the overall genocidal acts as charged in the

13     indictment.

14             The forcible transfer, by the way, was at judgement 1395 and

15     1402-1403.

16             Regarding the use of derogatory language, the Trial Chamber,

17     contrary to what the Prosecution advances, specifically addressed this

18     issue, holding that while the use of derogatory language may be of

19     relevance in relation to genocidal intent, it does not in and of itself

20     evidence such intent.  And the Trial Chamber goes on in saying this is

21     particularly the case, given the culture in the VRS and the

22     Zvornik Brigade, in which such language was commonplace.

23             Now, the Trial Chamber also considered -- sorry, this was 1399,

24     judgement.

25             The Trial Chamber considered the general context in which

Page 551

 1     Drago Nikolic's acts occurred, 1402, judgement.  The Trial Chamber goes

 2     further and also considers his belated entry into the JCE and his limited

 3     contextual knowledge, and that's one of the issues I'll come back to.

 4     The judgement -- that was at 1402 to 1403.

 5             Concerning the existence of a plan, this was also considered by

 6     the Trial Chamber at 1403-1404.  Strikingly, the Trial Chamber also

 7     considered that Drago Nikolic was not involved in the inception of the

 8     plan and was never fully informed in this respect, judgement 1402 to

 9     1404.  It necessarily follows in our submission, Mr. President, that all

10     nine factors invoked by the Prosecution were indeed considered by the

11     Trial Chamber and that the Prosecution failed to establish any error on

12     the part of the Trial Chamber.

13             Second part of my argument, contrary to the Prosecution's

14     assertion, the Trial Chamber applied correct law and accurately weighed

15     all appropriate factors related to Drago Nikolic's intent.  Firstly, it

16     is incorrect to say that the Trial Chamber assessed Drago Nikolic's

17     genocidal intent based on what he could have done instead of what he did.

18     That's incorrect.  To begin with, it is very well accepted that in

19     assessing genocidal intent, a Trial Chamber must consider the totality of

20     the evidence, including the non-involvement or the absence of involvement

21     of an accused, that can be found in Stakic appeal judgement 5245 --

22     sorry, this is -- I might have a problem here with the -- I have a

23     four-digit paragraph which cannot be.  I'll come back to that,

24     Mr. President.

25             Now, the key here is the Trial Chamber's finding that Popovic and

Page 552

 1     Beara were the architects of the plan, while Drago Nikolic, and here I

 2     quote, "...  was brought in to carry out specific tasks assigned to him

 3     in implementation of a monstrous plan designed by others."  Judgement

 4     1410.

 5             The Trial Chamber correctly found that the acts were confined,

 6     the acts -- of course Drago Nikolic's act were confined to his area of

 7     responsibility, and thus that his participation and role in the operation

 8     was not overarching, as demonstrated by his non-involvement in important

 9     aspects.  It follows, Mr. President, that the Trial Chamber considered

10     both what Drago Nikolic did as well as what Drago Nikolic could have

11     done, all of which in our submission is relevant.

12             Secondly, it isn't correct to say that the Trial Chamber

13     unreasonably demanded that Nikolic's participation in criminal acts that

14     were completed before his joining the genocide.  For starters, this fails

15     to take into account the Prosecution's own allegations in the indictment

16     charging Drago Nikolic with many acts committed outside of Zvornik,

17     including of course the forcible transfer.  In our view, the Chamber was

18     right in considering the fact that Drago Nikolic was involved in these

19     acts -- the fact that he was not involved in these acts a relevant

20     factor.  More importantly, the Prosecution's argument ignores that

21     Drago Nikolic's non-participation in the events which took place before

22     the JCE are directly related to his lack of contextual knowledge.  Again,

23     I'll come back to this later.

24             Now, the Prosecution did not reply here to this -- when we

25     responded on this specific issue.  There's no reply from the Prosecution.

Page 553

 1     Thirdly, it isn't correct to say that the Trial Chamber contradicted its

 2     own findings.  This is a quick one.  Clearly, not much needs to be said,

 3     as there are no contradictions.  You can verify, Mr. President, the

 4     paragraphs advanced by the Prosecution.  The Trial Chamber correctly

 5     found that Drago Nikolic did not take part in the transfer of prisoners,

 6     as he was not involved in the JCE to forcibly transfer the prisoners.

 7             Fourthly, it isn't correct to say that the Trial Chamber erred,

 8     finding that Nikolic's involvement in the unarmed detention of the Milici

 9     hospital patients further negate Nikolic's intent.  Now, even before I go

10     into the substance of this statement which we say isn't correct, it is

11     important, Mr. President, to bear in mind one thing:  It is not for

12     the -- for Mr. Nikolic to show that he does not have genocidal intent.

13     So we're not talking about a factor that will negate his intent.  What

14     the Prosecution must bring forward is the factors that do establish his

15     intent.  They have the burden of reversing the inference drawn by the

16     Trial Chamber.  Now, in this specific instance about the Milici hospital

17     patients, at paragraph 1380, the Trial Chamber found that:

18             "There is scant evidence as to the precise circumstances of their

19     murder and even less evidence as to what, if any, the role of Nikolic had

20     in the matter."

21             The Prosecution claimed that Drago Nikolic would have allowed the

22     prisoners to be taken away and murdered.  This must be firmly rejected.

23     The Trial Chamber found that Drago Nikolic had a role in the custody, and

24     thus that he had an opportunity to further the genocidal plan by

25     arranging himself for their execution.  Yet, they remained safe within

Page 554

 1     the custody of Nikolic and the Zvornik Brigade and they were killed only

 2     after Popovic took control of them, judgement 1411.

 3             The Prosecution's contention that Drago Nikolic's involvement in

 4     the murder was a result of the timing of the superior order for their

 5     execution must also be dismissed.  The fact of the matter remains that

 6     the prisoners remained safe within the custody of Nikolic.

 7             The Trial Chamber, in our view, Mr. President, correctly

 8     considered Nikolic's subordinate role, contrary of course to the

 9     Prosecution's argument.  As previously mentioned, Drago Nikolic acted or

10     acts must be considered in the context of the evidence in totality.  And,

11     to that end, Nikolic's personal circumstances are very relevant:  The

12     fact that he is a second lieutenant; the fact that this is the lowest

13     rank in the army; the fact that he didn't attend any military academy;

14     the fact that the position he was holding was a position for someone of a

15     rank at least three ranks higher than his.  In the context of an

16     operation, of course, directed, according to the Trial Chamber, by

17     Popovic and Beara, he had little authority of his own.  As mentioned --

18     referred to specifically by the Trial Chamber, the evidence provided by

19     Pandurevic that Nikolic was wearing a coat much too big for him.  How is

20     this relevant, Mr. President?  Well, simply because the determination

21     that Nikolic did not have genocidal intent because the fact that he had

22     little authority of his own could very well provide other reasons

23     justifying his actions, other than the fact that he harboured genocidal

24     intent.

25             The Trial Chamber also did not err in law or in fact in

Page 555

 1     considering Drago Nikolic's dedication to the security service.  Now,

 2     here again, Mr. President, I pause because this is actually not a

 3     finding.  This is actually another reasonable inference, and this, in our

 4     view, is different from a finding.  The Trial Chamber did not confuse

 5     intent and motive, rather it correctly applied the burden of proof in

 6     relation to inferences regarding the mens rea of an accused.

 7             In conclusion on this second topic, Mr. President, it follows

 8     from the above, even if the Appeals Chamber was to take into

 9     consideration the alleged errors committed by the Trial Chamber in

10     determining Nikolic's mens rea for genocide, Nikolic's specific intent

11     would not be unequivocally established.  Why?  Because genocidal intent

12     on the part of Drago Nikolic is not the only reasonable inference

13     available on the evidence.

14             And I move to my third part, which is the lack of contextual

15     knowledge, but before I do so I'd like to come back quickly to something

16     which was stated by the Trial Chamber, citing the Krstic appeal

17     judgement, where the Trial Chamber quoted the following paragraph 37,

18     appeals judgement Krstic:

19             "The gravity of genocide is reflected in the stringent

20     requirements which must be satisfied before this conviction is imposed.

21     In this context, the demanding proof of specific intent is one of the

22     safe-guards to ensure that convictions for this crime will not be imposed

23     lightly."

24             These requirements, Mr. President, guard against a danger that

25     convictions for this crime will be entered or imposed lightly.  This is

Page 556

 1     Krstic appeal judgement, paragraph 37, and cited by the Trial Chamber at

 2     paragraph 1408.

 3             The Trial Chamber properly identified this danger in

 4     paragraph 1408, and therefore acted with caution when determining whether

 5     the genocidal intent on the part of Drago Nikolic was indeed the only

 6     reasonable inference.  The Trial Chamber concluded that it was not, and

 7     we say that the Appeals Chamber should follow in the footsteps of the

 8     Trial Chamber in applying the same degree of care.

 9             I move to my third argument which has to do with the lack of

10     contextual knowledge.  I said at the beginning that it is our submission

11     that Drago Nikolic was not aware of a genocidal intent; however, even if

12     he was aware of genocidal intent, the contextual knowledge is also

13     something that must be considered.  At paragraph 237 of its appellant's

14     brief, the Prosecution submits that Nikolic's actions and participation

15     in the genocide, with full knowledge of the genocidal aims of the

16     operation and that of his fellow JCE members, Popovic and Beara, evidence

17     his genocidal intent.  Well, we say, Mr. President, that this must be

18     considered in the light of the Trial Chamber's holding that genocidal

19     intent, in the absence of direct evidence, must be inferred from the

20     acts, the conduct, the knowledge, as well as other relevant

21     circumstances.  Judgement 1398, quoted earlier.

22             Consequently, Mr. President, while knowledge of the genocidal aim

23     of the operation or that of others is a relevant consideration to assess

24     intent, so is the contextual knowledge of the accused.  And the

25     contextual knowledge refers to the full spectrum of the knowledge of the

Page 557

 1     accused which necessarily has a bearing on his understanding of the

 2     situation and, accordingly, on his actions.  In this case,

 3     Drago Nikolic's lack of contextual knowledge is a determining factor.

 4     Let us recall a few of the Trial Chamber's findings.  Drago Nikolic was

 5     first informed of the murder plan on the evening of 13 July.  Now, I say

 6     these findings, of course, without prejudice to our arguments that many

 7     of these findings are challenged in our appeal.

 8             In the evening of 13 July -- and that the information he was

 9     given was sparse, a large number of prisoners were being brought from

10     Bratunac to Zvornik to be executed.  By that time, the murder operation

11     was well underway, judgement 1402.  The vast majority of the victims had

12     already been detained.  Over 1.000 victims had already been or were about

13     to be executed at Kravica warehouse and Sandici meadow.  This was at

14     judgement 1402.  We could add what happened the executions at Cerska.  On

15     the evidence before the Trial Chamber, Nikolic had no knowledge of those

16     events, other than his general understanding that these were prisoners

17     taken as a result of the attack on and fall of the Srebrenica enclave.

18     He had no information as to the circumstances by which these men had

19     ended up in VRS custody.  He did not know about the indiscriminate

20     separations in Potocari and he did not know about the vigorous pursuit of

21     victims on the Konjevic Polje road.

22             It follows, Mr. President, that even through Drago Nikolic was

23     likely aware of the fall of Srebrenica on 11 July, he was not aware of

24     the adoption of any plan by anyone to murder the able-bodied men from

25     Srebrenica who had been separated from their families, judgement 1051.

Page 558

 1     Moreover, Drago Nikolic might have had some information concerning the

 2     column of people from Srebrenica, which was no way -- it's -- which was

 3     on its way, of course, to Konjevic Polje and then headed towards Tuzla -

 4     and we know the information in the evidence in relation to this column -

 5     but he had no information concerning the composition of the column.  More

 6     importantly, he had no information concerning the presence of civilians

 7     in this column, nor did he have information concerning the ongoing

 8     operation to capture members of the column.  What he did know, however,

 9     is the fact that a significant component of the column was on its way to

10     the area of Zvornik and that this column was armed.

11             In addition to this, there is little, if any, evidence,

12     Mr. President, of any working or close working relationship between

13     Nikolic and Popovic or Beara before 13 July 1995.  And of course

14     Drago Nikolic had no direct involvement with the prisoners prior to that

15     time, judgement 1402.  The fact that Drago Nikolic had no knowledge of

16     these events is, in our view, highly significant.  Even if the

17     Trial Chamber's finding that Drago Nikolic knew the genocidal intent --

18     genocidal aim of the operation or that of others, even though if that was

19     to be affirmed by the Appeals Chamber, when you look at Drago Nikolic's

20     lack of contextual knowledge, it makes it possible to draw another

21     reasonable inference, other than the one identified by the Trial Chamber.

22             For example, Mr. President, another reasonable inference that can

23     be drawn on the basis of the totality of the evidence is that

24     Drago Nikolic due, amongst other things, to his low rank, lack of

25     training, lack of power of influence and little authority of his own, was

Page 559

 1     drawn into an operation much bigger than him in which he had no other

 2     option but to contribute, but that he was nonetheless able to extract

 3     himself from at the earliest opportunity.

 4             The most important factor supporting the Trial Chamber's

 5     inference concerning Drago Nikolic, last part of my argument today.  Most

 6     important factor, Mr. President, is the fact that Drago Nikolic did not

 7     harbour genocidal intent is that his contribution to the killing

 8     operation ended abruptly after 36 hours.  Genocidal intent is not a

 9     switch that you can flick on or off at pleasure, nor is it an intent that

10     you can have for one day and not have it the next.  The fact that as of

11     15 July in the morning Drago Nikolic no longer contributed to the killing

12     operation is the most powerful indicator that he never had genocidal

13     intent.  Genocidal intent, Mr. President, cannot be established through a

14     series of inferences.  We are talking about a person that will be tagged

15     with having genocidal intent.  The burden or the threshold of the burden

16     of proof must be very high.  That is why, as mentioned earlier, the

17     gravity of genocide is reflected in the stringent requirement that before

18     this conviction can be imposed, specific intent must be proved beyond a

19     reasonable doubt.

20             Mr. President, I will stop here and simply end my argument by

21     saying that based on the totality of the evidence in this case when the

22     Appeals Chamber analyses all of the evidence, and of course with all the

23     findings that we are challenging concerning Orahovac and the presence at

24     the execution site, concerning Rocevic and the fact that this

25     conversation never took place, concerning the fact that he never offered


Page 560

 1     uniforms, all of this put together, there will be no doubt in your mind,

 2     Mr. President, that this inference -- it's certainly the inference that

 3     the Prosecution would like to say, that he had -- that Drago Nikolic had

 4     the specific intent is certainly not the only one.

 5             Thank you, Mr. President.

 6             JUDGE ROBINSON:  Thank you very much.

 7             Counsel for Mr. Pandurevic.

 8             MR. HAYNES:  Would you just give me a few minutes to set myself

 9     up.

10             Thank you.  Good afternoon.

11             The Prosecution appeals in the case of Vinko Pandurevic, in our

12     submission, raise no true issues of law.  They are, in reality, a request

13     for a review of the evidence by the Appeals Chamber, and the irony of the

14     Prosecution's approach to these appeals and cross-appeals will not escape

15     the Chamber's attention, whereas in the case of those substantially

16     convicted it seeks to uphold as reasonable the findings of the

17     Trial Chamber.  In the case of Pandurevic, it seeks a complete revision

18     of the central factual findings, sufficient not just to correct a minor

19     legal error, but rather completely to relitigate almost every charge of

20     which he has been acquitted.

21             On behalf of Vinko Pandurevic, I respectfully remind the Chamber

22     of the strict standard of review of Trial Chamber findings of fact on

23     appeal, namely, that no Trial Chamber could have found such facts.  I was

24     giving that concept some thought the other day when it occurred to me

25     what a steep gradient it truly is, because what it really means is that

Page 561

 1     you can't think of any two Judges who would agree with the finding of the

 2     Trial Chamber.  And why do I say that?  Well, a Trial Chamber, as we know

 3     in the case of Vinko Pandurevic, can make a decision by majority of two

 4     to one.  And so, if you find yourself thinking:  Well, I do actually know

 5     a couple of Judges who might agree with that, then that standard will not

 6     have been met.  It makes it rather interesting if there are two among you

 7     who would support a finding of fact but three disagree.  I would submit

 8     it would be extraordinary for the majority to overrule the minority in

 9     those circumstances because you have necessarily identified the component

10     of a Trial Chamber which would have found that fact.

11             As I say, it's a steep gradient to invite a Chamber on appeal to

12     re-write the factual findings of a Trial Chamber below, and more so, I

13     submit, for the Prosecution because not only does it have to satisfy you

14     that no Trial Chamber could have found a fact, it has to satisfy you now

15     that you could be sure that that fact should be found.

16             Mr. Rogers the other day made some statistical observations to

17     you.  I'm not going to repeat them.  This was a case which lasted the

18     best part of three years.  It generated an enormous amount of transcript.

19     There were many, many witnesses, thousands of exhibits, and if I may

20     pause just to say this because I know an English court of appeal would

21     observe to me that, Mr. Haynes, this was a very experienced Judge.

22     Your Honours, this was a very experienced Chamber.  It composed -- it

23     comprised the current Vice-President and immediate Vice-President of this

24     Tribunal and in Judge Prost, one of its most respected jurists.  They

25     managed the proceedings admirably, they managed the case throughout very

Page 562

 1     well.  They were attentive, they watched the evidence, they wrote a

 2     concise, considered, and eloquent judgement.

 3             I just want to make a few observations whilst I'm talking about

 4     this on some of the things you've heard today.  The Trial Chamber, for

 5     example, heard far more detailed evidence as to who was doing what and

 6     how they came to be at the crime sites.  I didn't object today to the use

 7     by the Prosecution of maps with arrows on them.  Doubtless, that was a

 8     useful visual aid for you, but please bear in mind what underlines those

 9     graphic -- underlies those graphic images.  Simply to characterise them

10     as Zvornik Brigade assets or resources is oversimplistic.  You need to

11     know what they were, how they were -- got there, and what they did there.

12     Just by way of example, paragraph 1881 of the judgement was cited by the

13     Prosecution as justification for one of the arrows on the maps this

14     morning.  But an examination of the judgement reveals only that some

15     soldiers cleared some bodies from outside a school building because the

16     local villagers asked them to do it.  It's no indication at all that

17     those men were acting regularly within their capacity as members of a

18     battalion of the Zvornik Brigade.

19             Secondly, that the Chamber heard a wealth of evidence about

20     Pandurevic's military capabilities within the brigade, what units and

21     artillery he had at his disposal, and in -- particularly, the heavy

22     artillery with which he could have crushed the column or even murdered it

23     as it passed by, in particular it heard from PW-168 whose evidence it so

24     readily championed on this topic.  Such evidence was central to the

25     Chamber's findings about the passage of the column at Baljkovica and how

Page 563

 1     it stood to Pandurevic's credit and how it helped them determine his

 2     intent to participate in any joint criminal enterprise or criminal

 3     scheme.

 4             More importantly, perhaps most importantly of all, in a case in

 5     which a man's culpability turns on a single conversation, the

 6     Trial Chamber heard from PW-168 for 18 whole days and Pandurevic for 22.

 7     However they may have articulated Pandurevic's knowledge on the 15th of

 8     July in the judgement and whether or whether not the expressions they

 9     used were consistent or slightly different, they articulated that -- I'm

10     sorry, the knowledge he derived from a conversation that could have

11     lasted no more than a few seconds, they were ideally and uniquely placed

12     to gauge in a way which, with respect, Your Honours are not.

13             I just want to say a few words about Vinko Pandurevic.  In

14     July of 1995 he was 35 years of age and married with one daughter.  He

15     became the commander of the Zvornik Brigade in 1993, aged 33.  He was

16     well beneath the expected age to be a brigade commander and well below

17     the rank that one would expect a brigade commander to be.  He was

18     nonetheless regarded as a fine soldier.  The Zvornik Brigade was a unit

19     of 5 and a half thousand men, two or three times the size of an ordinary

20     brigade, and as you've seen from the schematics this morning it comprised

21     eight battalions which were spread along a front line about 40 kilometres

22     in length.  The soldiers were substantially non-professional.  This was,

23     after all, a time of civil war when ethnic groups were fighting each

24     other.  The 1st Battalion, quite literally, were a farming unit.  You're

25     not going to get the opportunity which the Trial Chamber had of hearing

Page 564

 1     from Vinko Pandurevic, as they did for the best part of a month, during

 2     which time every conceivable question was put to him by me and five other

 3     parties, including the Prosecution.  It's axiomatic to say that the

 4     determination of his case was substantially shaped by the evidence he

 5     gave, so I'm therefore going to try my best to do justice to the case he

 6     advanced and which was substantially accepted.  I promise it won't take

 7     me 22 days.

 8             We all agree that prior to the 15th of July, 1995,

 9     Vinko Pandurevic had no knowledge whatsoever of the murder plan.  That

10     has seemed therefore the natural starting point for any narrative;

11     however, it's perhaps worth just backing up a little.  The movement of

12     the prisoners from Bratunac to Zvornik began on the 13th of July.  It is

13     universally acknowledged that the original plan had been to murder them

14     in Bratunac, but Deronjic objected.  The prisoners were moved to Zvornik

15     during the night of the 13th of July and during the day of the 14th.

16     They were transported and guarded by substantial resources drawn from the

17     Bratunac Brigade and other units.  At noon on the 15th of July,

18     Vinko Pandurevic returned to the brigade headquarters in Karakaj after an

19     absence of two weeks.  He knew that there was a serious military

20     situation developing with a large enemy force behind his front lines

21     commonly called the column, and there were also enemy attacks from the

22     front.  What we're all agreed about now is that he had not a clue as he

23     pushed the door open of the Standard Barracks that somebody had brought a

24     number of prisoners to the Zvornik municipality, detained them in schools

25     and some other buildings, and was killing them.

Page 565

 1             The first person he met was his deputy or Chief of Staff,

 2     Dragan Obrenovic, who held a brief conversation with him in the corridor.

 3     He is characterised throughout the Prosecution's submissions as the

 4     Chief of Staff, as though that is some key to his knowledge.  Formally he

 5     was the Chief of Staff; however, Obrenovic had been absent from the

 6     brigade throughout the 14th of July until about an hour previously.

 7     Accordingly, the information he had was very limited and it derived

 8     almost exclusively from a brief exchange with the duty officer,

 9     Dragan Jokic.  What he, in fact, said, the Trial Chamber found, was:

10     Pursuant to Mladic's order, Beara and Popovic had brought a large number

11     of prisoners from Bratunac to the Zvornik sector, where they were

12     executing them.  And Jokic had informed him that there were enormous

13     problems with the guarding, execution, and burial of prisoners.

14             Significantly, what Obrenovic knew and didn't say was that

15     Nikolic was involved or that Beara and Popovic were taking whomever they

16     want wherever they want, which Jokic had just told him.  There it is.  We

17     can't go behind what PW-168 told us about that conversation.  That is the

18     only evidence and the Trial Chamber accepted it.  It must have shocked

19     Vinko Pandurevic.  He didn't even know prisoners had been taken, let

20     alone brought to the area, and the Trial Chamber significantly found no

21     significance in his response about civil protection.  Know well also his

22     immediate concern with his formal orders to block the column and

23     Obrenovic's alarming report in that regard, conveying to him that the

24     situation was serious.  The other thing Obrenovic's report cannot have

25     failed to indicate to him was that the operation he was referring to was

Page 566

 1     one being conducted by the Main Staff.  The name of Beara would

 2     necessarily have alerted him to that.

 3             Shortly afterwards, they entered a room, where together with

 4     police and other military commanders, they discussed how to fulfil their

 5     orders to block and destroy the column of combatants behind their lines.

 6     Is the Trial Chamber's finding at paragraph 1972 about what

 7     Vinko Pandurevic would have known from that conversation thus not

 8     reasonable?  That that's all he was told, that's all his knowledge can be

 9     based upon.  Jokic was the duty officer.  Pandurevic would know that from

10     his contact with the brigade that morning and his entry into the

11     building.  Indeed, he even gave evidence about that.  The suggestion now

12     that the mention of Jokic's name would necessarily trigger some

13     understanding that the brigade was involved in burials is not the only

14     possible inference, though I accept the contents of the report he wrote

15     later.

16             Pandurevic is criticised for his inaction in the light of this

17     skeletal information from somebody whom himself did not know very much,

18     namely, Obrenovic.  Indeed, it is said that his inaction from that point

19     as a commander makes him guilty of a joint criminal enterprise.

20     Certainly, the Prosecution, nor anybody, can point to any positive act by

21     Pandurevic at any time, let alone after noon on July the 15th.  And if he

22     were, as it were, to have responded in any other way, then we would know

23     about it.  If he had been told prior to that, we would know about it.

24     One compelling piece of evidence which the Trial Chamber heard and which

25     I'll invite you quickly to look at is an intercept, it's P1179, it's

Page 567

 1     conveniently set out at paragraph 1282 of the trial judgement.  It's a

 2     lengthy intercept and it takes place earlier that morning and the

 3     participants in the conversation are Beara, who is somewhere in the

 4     Zvornik area, and Krstic, who is at the front line command post near

 5     Zepa.  You will recall that at 9.00 that morning, Krstic had ordered

 6     Pandurevic to return to Zvornik to crush the column.  It is shortly after

 7     that that Beara contacted Krstic at the command post.

 8             Beara is, throughout the course of the conversation, making it

 9     plain that he is having difficulty dealing with the murder plan in the

10     Zvornik area, and he discusses with Krstic the various possibilities for

11     the provision of men and other resources to complete the task.  A number

12     of possibilities are discussed between them, including men from a unit

13     commanded by Bobo Indic and men from the Bratunac Brigade.  What of

14     course is conspicuously absent from this conversation is any suggestion

15     that Beara in Zvornik should turn to the Zvornik Brigade to ask them for

16     any resource.  That simply is not on the table and it's an indication, we

17     say, of the extent to which Pandurevic was kept always in the dark about

18     this Main Staff and Drina Corps operation.

19             During the course of that afternoon, Pandurevic was visited at

20     the forward command post by a local politician called Branko Grujic, and

21     Grujic was who told him about the presence of prisoners in a couple of

22     schools.  And, hence, in his later interim combat report is featured the

23     mention of schools.  There were in that conversation indications that the

24     local population were insecure about the presence of the prisoners there,

25     and so Pandurevic decided to consult further with a man called

Page 568

 1     Ljubo Bojanovic who was present at the forward command post to find out

 2     what he knew about the prisoners.

 3             Bojanovic told him that a day previously buses had passed by the

 4     command in Karakaj containing prisoners.  He said he thought they were on

 5     their way to Bijeljina, that is the place where the exchange centre of

 6     Batkovici is, and that the brigade had no task in relation to the

 7     prisoners.

 8             What Pandurevic did next is, we say, very significant.  He knew

 9     from earlier that morning that the commander of the Muslim forces in

10     Nezuk, Semso Muminovic, had been trying to make contact with him, and it

11     was at that point that Pandurevic contacted Muminovic.  He contacted him

12     several times that afternoon, and the Trial Chamber accepted his evidence

13     at paragraph 1867.  The contact began at about 2.00 in the afternoon,

14     very shortly after Pandurevic had arrived at the forward command post.

15     There is in the evidence in fact a record of one of their conversations,

16     and I think we'll just have a look at this on the screen, it's 7D00656.

17     No, I only want the transcript.  There's no point in playing the audio.

18     Thank you.

19             The English is at the lower half.  This is Pandurevic on the

20     early afternoon of the 15th of July, contacting Muminovic, whom he refers

21     to as Zukov, his nickname.  In his evidence he described this as the

22     second conversation and you'll see that Pandurevic says:

23             "From that ... there's no."

24             Zukov says:  "Good, good."

25             Pandurevic says:  "Zukov, Zukov, Zukov, answer me."

Page 569

 1             And Zukov says:  "Speak, I hear you.  I hear you.  Speak.  He's

 2     not answering me.

 3             "Zukov, send the civilians to one place, choose it yourself.  We

 4     will transport them all to Tuzla.  This way they will be protected

 5     certainly, copy.

 6             Zukov:  "Well, let the whole column pass and it's all right."

 7             Pandurevic:  "Not with weaponry, it has to be surrendered, not

 8     with weaponry, I won't repeat twice, so that they also have the chance to

 9     gather at the same place.  Copy!"

10             The military necessity on which the Prosecution have always

11     relied did not exist at the time of this contact with the enemy

12     commander, didn't arise until the morning of the 16th of July.  And

13     literally within an hour or so of arriving back in Zvornik, having got to

14     the forward command post, Pandurevic is making contact with the ABiH

15     commander in Nezuk, starting negotiations for the passage of the column

16     of men to safe territory.  It is unsurprising, we submit, that the

17     Trial Chamber formed the view that this was compelling evidence to negate

18     any suggestion that Pandurevic had merely by being given information by

19     Obrenovic --

20             JUDGE ROBINSON:  Mr. Haynes, we --

21             MR. HAYNES:  -- become a member of any joint criminal enterprise

22     to murder --

23             JUDGE ROBINSON:  Mr. Haynes, sorry, we will break in five

24     minutes.

25             MR. HAYNES:  Thank you.

Page 570

 1             The negotiations continued and you'll see at paragraph 1872 of

 2     the judgement the following morning a Muslim officer from the column

 3     called Selikovic [phoen] was taken prisoner.  He was treated and he was

 4     sent back to his unit.  Again, an example of humane treatment,

 5     inconsistent with any intent or contribution to a joint criminal

 6     enterprise to murder.  At 10.00, Pandurevic and Muminovic agreed the

 7     opening of the corridor, and at 1.00 it was opened.  I'll return to this

 8     point later, but I do submit that that act as a piece of evidence in

 9     determining Pandurevic's deeds and thoughts and what inference the

10     Trial Chamber must have drawn is fantastically compelling.  Do not

11     underestimate, we say, the significance of the disobedience of the order

12     he had been given to crush the column.  That had come from Mladic through

13     Krstic.  This was the column of the 28th Division.  This was the unit

14     that had been the thorn in the side of the whole VRS in Srebrenica.

15     Pandurevic had the military capability to wipe it out and he chose not

16     to.

17             Your Honour, that may be a convenient moment.

18             JUDGE ROBINSON:  Thank you.  We'll break for 20 minutes,

19     that's 35.

20                           --- Recess taken at 3.15 p.m.

21                           --- On resuming at 3.37 p.m.

22             JUDGE ROBINSON:  Yes, Mr. Haynes.

23             MR. HAYNES:  Thank you, Your Honour.

24             I'll just complete the story of the column.  The column was

25     originally open for a period of 24 hours, but because there was

Page 571

 1     stragglers, Pandurevic kept it open for a further period, sent his men

 2     out into the area around Baljkovica with megaphones to make sure that as

 3     many people got through as was possible, and it's estimated that about

 4     10.000 people passed through.

 5             The Trial Chamber found at paragraph 1964 that in his interim

 6     combat report of the 15th of July, Pandurevic was preparing to disobey

 7     his orders, and I simply note within the time-scale of things that that

 8     is within five and a half hours of his arrival back at Zvornik and no

 9     more than four from his arrival at the forward command post.  And the

10     Trial Chamber was satisfied that by then he had that in mind.  On the

11     16th of July he wrote what can only be described as a dishonest report,

12     lying to his superior command, attesting to the fact that he was still

13     fighting when he wasn't and saying that some people had slipped through

14     but they were unarmed.  That was quite the opposite of the position

15     because he was letting the whole Muslim column pass through, contrary to

16     his orders.

17             Two days later when, as the Trial Chamber found, he was fixed

18     with rather more complete knowledge of what had been going on with the

19     murder operation, he wrote the interim combat report of the 18th of July,

20     and I will read that to you.  It said:

21             "During the last ten days or so, the municipality of Zvornik has

22     been swamped with Srebrenica Turks.  It is inconceivable to me that

23     someone brought in 3.000 Turks of military age and placed them in schools

24     in the municipality in addition to the 7.000 or so who had fled into the

25     forests.  This has created an extremely complex situation and the

Page 572

 1     possibility of the total occupation of Zvornik in conjunction with the

 2     forces at the front.  These actions have stirred up great discontent

 3     among the people and the general opinion is that Zvornik is to pay the

 4     price for the taking of Srebrenica."

 5             Concurrently to that, he ordered the Zvornik Brigade to ensure

 6     that all prisoners taken on the terrain were brought back to the

 7     barracks, and you'll find that at paragraph 1893 of the judgement.  The

 8     reports which he wrote firstly to prepare his higher command for the

 9     passage of the column and then condemning them for the murder operation

10     were described in these words by Judge Kwon in his dissenting opinion.

11     He said:

12             "They were the sole instance of a subordinate so openly

13     challenging Mladic in relation to the murder operation.  I would add

14     this, they are the sole instance of any document recording the existence

15     of prisoners rather than referring to them in some sort of secretive

16     code."

17             This material also the Trial Chamber in our submission rightly

18     felt was relevant to determine the purpose of his acts and deeds and his

19     involvement in the murder operation.

20             Throughout the 20th to the 24th of July he took and exchanged

21     prisoners at a time when for -- in other regions such as Bratunac,

22     prisoners were being routinely executed.  On the 27th of July, he visited

23     his command superior General Krstic, the Trial Chamber found at

24     paragraph 1915, and asked Krstic if he had any more specific information

25     following his combat reports relating to the prisoners executed in

Page 573

 1     Zvornik area.  According to Pandurevic, Krstic essentially told him that

 2     it was not something that should be his concern and that he would deal

 3     with the problem anyway.

 4             On those facts as described by the narrative and attested to by

 5     Pandurevic in evidence on oath, the Trial Chamber perfectly reasonably

 6     concluded not only that Pandurevic's actions throughout the 30 hours from

 7     noon on the 15th of July were not consistent with his membership of the

 8     JCE nor as an aider and abettor to mass murder.  Neither did they

 9     consider that his actions in writing reports or letting the column go had

10     to be viewed with the cynicism that the Prosecution now invites.  Quite

11     the contrary, in relation to the column they found the following:

12             "At the time in which other VRS members were actively hunting

13     down, capturing, and executing Bosnian Muslim men without mercy and

14     pursuing the genocidal claim, Pandurevic's decision to open the corridor

15     enabled the safe passage of thousands of Bosnian Muslim men is striking.

16     In doing so, thousands of men were potentially spared.  Pandurevic's

17     action in this regard stands out as an instance of courage and humanity

18     in a period typified by human weakness, cruelty, and depravity."

19             Plainly, they were not regarded by the Trial Chamber in the same

20     way, even after the Prosecution had cross-examined him for hours as

21     self-serving or corroboration of his having accepted Mladic's illegal

22     order.  In our submission, it would be quite wrong of you to reverse

23     those factual findings.

24             Under the Prosecution's first ground of appeal, we submit that

25     the alleged actus reus for the joint criminal enterprise is little more

Page 574

 1     than a linguistic sophistry.  He did not accept Mladic's order, he did

 2     not give any orders in relation to the murder operation, he did not

 3     approve any orders, he didn't sanction the use of any resources or

 4     assets, and he did not know they were being used such as they were.

 5             I'll turn now to the appeal under Article 7(3).  It is our

 6     position that the correct standard of knowledge for a superior is that he

 7     has to have reason to know that his subordinates have committed, are

 8     committing, or are about to commit crimes.  But we accept that the

 9     terminology has become fuzzy and vague and we would welcome clarification

10     in this case.  However, even under the lower standard of Strugar and

11     Nahimana we contend that the Trial Chamber was perfectly entitled to

12     conclude that they were not sure that Vinko Pandurevic was liable under

13     Article 7(3) for extermination and persecution, and I will briefly

14     underline why.

15             Extermination, this deals with the second question which we've

16     been asked to address.  Essentially, these questions come back and back

17     and back again to the conversation between Pandurevic and Obrenovic in

18     the corridor of the Standard Barracks on the 15th of July, and we ask

19     rhetorically:  What was it about what Obrenovic told him that would have

20     made him think that this was extermination or persecution.  Pandurevic's

21     knowledge about the scopes of the crimes underway was skeletal in the

22     light of what he was told by Obrenovic.  He had no information whatsoever

23     as to the numbers of prisoners brought to the area or even their

24     approximate location.  He had no knowledge as to whether they were all

25     being killed or just some of them were being killed, nor as to whether

Page 575

 1     the executions were complete, over, or ongoing.  All of those are facts

 2     emerged later.  The Trial Chamber found out that Pandurevic only learned

 3     of the full scope of the operation on the 18th of July.  He did not know

 4     at that time that extermination was being committed.  The use of the word

 5     "enormous," moreover does not lead to the necessary inference --

 6     influence that that is invited.  There may have been enormous logistical

 7     problems getting somebody to carry out the tasks, for example, and so we

 8     submit that the brief conversation with Obrenovic was correctly

 9     characterised by the Trial Chamber, as only giving rise to the necessary

10     influence that Pandurevic would have known of murder but not necessarily

11     extermination.

12             Can I turn to the third question you have posed us about

13     persecution.  Again, I'm sorry to say it involves an analysis of the

14     information passed from Obrenovic to Pandurevic on the 15th of July.

15     Nothing in that information could have conveyed to Pandurevic the reasons

16     why prisoners were being killed.  He would not have known from what

17     Obrenovic said that they were being killed because of their ethnicity

18     rather than, for example, what they might have done or for some arbitrary

19     reason, in other words, revenge, or because some -- simply they were

20     enemy soldiers.  The conversation with Obrenovic does not relay that

21     information in any way at all.

22             It's important also, given that the information was passed so

23     shortly afterwards, to bear in mind what Pandurevic learned from Grujic

24     and Bojanovic.  In other words, that prisoners were being held in

25     schools, in other words, not dead yet.  And that Bojanovic told him that

Page 576

 1     they were in buses on their way to Bijeljina which would have signalled

 2     to Pandurevic, Batkovic, and hence exchange and not murder at all.

 3     Unless there are any questions, those are my responses to your questions

 4     2 and 3.

 5             I'm going to move on now to the appeal in relation to

 6     Pandurevic's failure to punish.  In our submission, the Trial Chamber

 7     correctly found that Vinko Pandurevic discharged his duty to punish by

 8     writing the 15th of July and 18th of July reports and by his conversation

 9     with Krstic.  At paragraph 2062, the Chamber articulated as follows:

10             "Having considered all of the relevant evidence, the

11     Trial Chamber is satisfied that in his 15th and 18th of July interim

12     combat reports were a means, potentially the only such realistic

13     available means, for Pandurevic to communicate and report to the

14     competent authorities about the crimes that were committed in the Zvornik

15     area."

16             The Trial Chamber also recalls that Pandurevic raised the issue

17     of the execution of prisoners in Zvornik with Krstic in person on the

18     27th of July, specifically Pandurevic asked Krstic if he had any more

19     specific information about the matter, to which Krstic responded that it

20     was not something that should be Pandurevic's concern and that he,

21     Krstic, would deal with the problem in the appropriate way.

22             The Prosecution challenged that finding by arguing that the

23     Trial Chamber added an element to the legal standard requiring for the

24     measures to be necessary, reasonable, and certain to be effective.  That

25     is not what the Trial Chamber did.  The correct standard, reasonable and

Page 577

 1     necessary measures means the availability of measures has to be assessed

 2     on the basis of the circumstances surrounding each particular situation.

 3     And that's the Blaskic appeals judgement at paragraph 417.

 4             "Reasonable" means measures reasonably falling within the

 5     material powers, not a question of substantive law but of evidence,

 6     according to the Appeals Chamber in Halilovic, paragraph 63.

 7             Pandurevic's material ability needs to be assessed, taking into

 8     consideration the circumstances at the time.  An abstract listing of all

 9     the measures the Prosecution can think about now, some of which were not

10     even litigated during trial, is not the proper legal standard.  This

11     brings me to question 4, the military prosecutor and other measures.

12             The Trial Chamber reasonably found that Pandurevic had taken the

13     only necessary and reasonable measures he could.  This question,

14     Your Honours, cannot be divorced from reality.  It has to bear upon the

15     circumstances in which the commander found himself, and I may reach

16     slightly outside this case and this courtroom for just a moment, but let

17     us take a look around ourselves.  Karadzic is being tried down the

18     corridor for offences relating to the events of Srebrenica.  Mladic is

19     being tried downstairs in relation to events concerning Srebrenica.

20     Beara, Tolimir, Miletic, Gvero, the whole Main Staff were involved in the

21     events at Srebrenica.  By the 27th of July, when he visited Krstic,

22     indeed by the 23rd of July, when he spoke to Dragan Obrenovic, and I

23     particularly invite you to consider paragraph 1910 about that

24     conversation, Pandurevic was rightly aware that the whole of the

25     Main Staff was involved in these events.  If he were here today offering

Page 578

 1     up the fact that he had reported his concerns to the military prosecutor,

 2     an organ of the Main Staff of the Army of Republika Srpska, the

 3     Prosecution would laugh at him and suggest that such a measure was wholly

 4     inadequate to discharge his duties as a commander.  They would say that

 5     reporting this matter to the military prosecutor was mere window

 6     dressing.

 7             It's worthy of note that during the many days he cross-examined

 8     Vinko Pandurevic, Peter McCloskey never once suggested to him that that

 9     was an option he should have chosen.  Moreover, during the trial, the

10     Prosecution did not find it important enough to present evidence on the

11     military prosecutor, that's at the trial judgement paragraph 2057, and

12     the evidence that was presented mentioned by Mr. Wood this morning was

13     only suggestive of its impartiality.  In our submission, the

14     Trial Chamber rightly looked at all the options available to Pandurevic

15     and decided that in the writing of reports to his immediate superior and

16     by personally visiting his immediate superior he had taken all necessary,

17     appropriate measures.  That was a considered and intelligent reflection

18     upon the position he realistically found himself in.

19             We addressed the other points suggested or the other measures

20     suggested he might have taken regarding investigations and disciplinary

21     measures in our response brief at paragraphs 256 to 269, and I will not

22     and I doubt I have the time to go through them now.

23             It remains our position that the 15th and 18th of July reports,

24     as well as the conversation with Krstic, were the only reasonable and

25     necessary measures he could have taken.  They created a written record,

Page 579

 1     higher command who were informed could deal with his superiors as well as

 2     his subordinates.  As for our position on question 5 which you've posed

 3     us, the reports of the 15th and the 18th of July invite an inquiry which

 4     is not in fact limited in time.  So the question whether he can be found

 5     liable for failing to punish the crimes committed before he returned to

 6     Zvornik is moot because it is our case that the Trial Chamber correctly

 7     considered that he had discharged that duty in relation to both the

 8     crimes before and after his return.  For what it is worth, we take no

 9     position on the question as to whether as a matter of principle

10     Pandurevic could be liable for failing to punish those crimes which

11     occurred between the 13th and the 15th of July, when we say he was not in

12     command of the brigade.  We note that in the Prosecution's submissions

13     this morning as to the relevant law on this topic, the one case they

14     didn't make reference to was that of Perisic, where the same legal

15     standard was applied and the Prosecution did not express the view that

16     they expressed here this morning, with the necessary effect that Perisic

17     was acquitted.

18             I'm coming to the end.

19             Paragraph 2209 of the trial judgement, the Trial Chamber

20     acknowledged the uncommon and extraordinary set of facts that set aside

21     the case of Vinko Pandurevic.  One of its uncommon and extraordinary

22     features is the narrative I've described for you, whereby a young

23     commander doing, as the Trial Chamber found, the work of a soldier

24     properly, returned to his headquarters to be told that others had brought

25     into what is termed his zone of responsibility a lot of prisoners and

Page 580

 1     they were going about killing them.  As you know, I did not address you

 2     about Vinko Pandurevic's sentence.  The Prosecution have done so today

 3     and invoked the rights of victims.  I wholly support the rights of

 4     victims, as does Vinko Pandurevic, to whom the Trial Chamber in this

 5     instance found to have performed a compelling act of assistance in

 6     July of 1995.

 7             One of the principal rights of victims is the right to truth, and

 8     for all the rhetoric about the digger drivers and guards who in a formal

 9     sense might have been Pandurevic's subordinates and who might have aided

10     and abetted unbeknown to him the scheme to murder people, the Prosecution

11     have repeatedly denied the victims of Srebrenica this right.  But perhaps

12     they'll do so in a reply today.  We know that a few soldiers from the

13     1st Battalion went to the Kula school to stand guard, but who was in

14     charge there?  Who ordered the shootings to start?  And at Petkovci, who

15     was in charge on the ground?  Who ordered the killings to begin?  And at

16     Orahovac and at Kula?  The answer to that central question has always

17     born and continues to bear on every level of Pandurevic's culpability and

18     sentence.

19             Unless you have any questions to ask of me, those are the

20     submissions I wish to make.

21             JUDGE ROBINSON:  Thank you very much.

22             We'll now have the Prosecution's reply.

23             MR. KREMER:  Thank you, Mr. President, Your Honours.

24             I'll just make some brief remarks on -- in reply on all of the

25     submissions other than those made on behalf of Mr. Nikolic, and my


Page 581

 1     colleague, Mr. Rogers, will reply to those.

 2             I want to start by very quickly dealing with the Popovic and

 3     Beara comments in relation to the cumulative conviction for conspiracy to

 4     commit genocide responses, and I have no comments on Mr. Popovic's

 5     response.  But in respect of Mr. Beara my invitation to you is that you

 6     should ignore his response as non-responsive.  He does not address the

 7     legal issue raised in the ground or in the submissions.  What he used the

 8     opportunity to do was to rehash his appellant's argument and challenge

 9     the underlying factual findings on conspiracy to commit genocide, and in

10     our respectful submission that was improper.  And I note that - and

11     Your Honours are probably well aware of this - that Beara did not file a

12     response to the Prosecutor's -- Prosecution appeal brief and, as such,

13     his response on paper, at least, again is not available to you for any

14     purpose that would serve you in terms of deciding this legal issue that

15     has been decided by the Appeals Chamber of the

16     International Criminal Tribunal for Rwanda.

17             In terms of Miletic, I have no comment, given the concession by

18     Ms. Faveau on this legal issue, and so I will turn to Mr. Pandurevic.

19             The submissions on grounds 1 and grounds 2 are interesting but

20     generally non-responsive because Mr. Pandurevic's counsel avoided the

21     central issue put forward by the Prosecution as the basis for the error

22     in 1972 and 1973 of the Trial Chamber's judgement.  And that is, in

23     considering Vinko Pandurevic's shared intent for the joint criminal

24     enterprise to murder, the Trial Chamber ignored its own findings,

25     particularly the findings in relation to the words used and the meaning

Page 582

 1     that it derived from and found from the 15th July interim combat report.

 2             Mr. Haynes avoids the question and it's been a question that I

 3     think vexes him because the Trial Chamber did, in fact, spend a lot of

 4     time analysing the evidence and making those findings so that our

 5     position is, quite clearly, that there is a legal error, a legal error

 6     that compels this Appeals Chamber to look at the findings and look at the

 7     facts and make your own determination to see what the proper conclusion

 8     would have been had the findings in 1948 been applied and the contextual

 9     circumstances been used to do that evaluation.  We have -- in our

10     submissions today and in our Prosecution appeal brief and reply we have

11     tried to help the Trial Chamber -- or the Appeals Chamber in evaluating

12     whether or not this ground of appeal is factually and legally founded and

13     also to provide you with ample references to the trial record to assist

14     you in making the determination that we suggest, with respect, you should

15     be making.

16             The standard of review put forward by Mr. Pandurevic's counsel in

17     our submission is wrong.  It essentially suggests that if there is a

18     dissenting opinion then there is no possibility to make a determination

19     that no reasonable Trial Chamber could make that conclusion.  Our

20     position is that this Appeals Chamber on a regular basis applies the

21     standard of review for appeals, and I won't tell you what the law is.

22     You know it and you apply it regularly.  And this Appeals Chamber is not

23     afraid to take on the difficult and challenging job of reviewing factual

24     findings and evidence and replacing its findings on facts and guilt or

25     innocence in place of decisions made by Trial Chambers.

Page 583

 1             The emphasis in the response by Pandurevic is on the conversation

 2     of Obrenovic and Grujic, but again without addressing the problem that it

 3     create -- that is created by the 15th July ICR which suggests, as found

 4     by the Trial Chamber, that Pandurevic in fact held much more knowledge

 5     when looked at in the context of the conversations and the document.

 6             During the course of his remarks, he made one submission relating

 7     to prisoners and that prisoners were regularly exchanged from the 20th

 8     to the 24th of July.  I note to remind you of the fact that he has been

 9     convicted for the aiding and abetting of murder of the ten patients from

10     the Milici hospital that were turned over to Popovic that you've heard

11     about in the proceedings, and I also refer you to paragraph 59 of our

12     reply, where we address this specific point in response -- in reply to

13     his response.

14             I can just simply repeat for Your Honours that we did in our

15     brief set out the basics of the legal and factual position of the

16     Prosecution and why an appeal on these two grounds should be allowed.

17     And Mr. Haynes, on behalf of Mr. Pandurevic, has replied -- responded in

18     full.  The arguments that he advances this morning on these grounds add

19     little, if anything, to what he says in his response.  And we have

20     addressed any points that are worth responding -- responding to in our

21     replies, and, consequently, I will rely on your study of the response and

22     reply and not bore you anymore this afternoon.

23             I'll pass the podium on to Mr. Rogers for a brief reply in

24     respect of the Nikolic points - thank you, Your Honours - unless there

25     are some questions.

Page 584

 1             MR. ROGERS:  Your Honours, I have three points I wish to make in

 2     reply to the submissions of my learned friend for Drago Nikolic.  The

 3     first relates to his assertions concerning withdrawal or extraction.

 4     Your Honours, I want to address that suggestion that he withdrew from the

 5     enterprise, that's Drago Nikolic withdrew.  My learned friend at

 6     transcript 64 said:  The Trial Chamber considered the limited scope of

 7     his acts and his withdrawal from the criminal acts prior to their

 8     completion and he referred to the judgement at 1410.  But, Your Honours,

 9     this might imply that the Trial Chamber considered that Drago Nikolic had

10     made some positive decision to withdraw or, as my learned friend put it

11     later in the transcript at 74, that Drago Nikolic was nonetheless able to

12     extract himself at the earliest opportunity.  But if we examine the

13     judgement at 1410, we see what they said.  They said:

14             "His participation in the killing operation is limited in time

15     beginning on the night of 13 and ending suddenly midday on 16 July.  As a

16     result, he is not directly implicated in the killings at

17     Branjevo Military Farm or Pilica cultural centre."

18             In our submission, that is not an extraction or a withdrawal.

19     This was not the Trial Chamber's impression of him at all.  What they

20     said when considering his responsibility in relation to the joint

21     criminal enterprise to murder at paragraph 1392 was this:

22             "He played an important role in the organisation of the operation

23     by which the common purpose was achieved and he made a number of

24     contributions to that common purpose through his work, behind the scenes

25     of and at various detention and execution sites in Zvornik.  Notably, he

Page 585

 1     arranged for personnel to guard and carry out executions and was

 2     personally present at Orahovac in an organisational capacity at the

 3     detention and execution sites at times when the executions were being

 4     carried out.  Through these acts, he made a significant contribution and

 5     from his steadfast and resolute approach to the task given to him in the

 6     murder operation, it is clear that he shared the intent of the common

 7     purpose."

 8             Your Honours, the second that I wish to address is the comments

 9     relating to Drago Nikolic's belief about the prisoners.  At transcript

10     page 64, my learned friend referred to Drago Nikolic witnessing the

11     targeting of the Bosnian Muslims and said that:

12             "The Trial Chamber considered Drago Nikolic's belief that

13     prisoners as opposed to any other description of victims were being

14     brought in to the Zvornik area."

15             And he referred to the judgement at 1402-1403.

16             However, Your Honours, this reference should not be misunderstood

17     to indicate that Drago Nikolic only thought that prisoners were prisoners

18     of war.  The Trial Chamber referred to Drago Nikolic's knowledge when he

19     left the Standard Barracks on the morning of the 14th of July, in

20     judgement 1404, when it stated:

21             "The only reasonable inference to draw from such a planning

22     meeting is that when he leaves Standard Barracks that morning, he knows

23     the details of the plan, the executions were to be carried out in

24     multiple locations in the Zvornik area, and the victims would number in

25     the hundreds to thousands.  Later that morning, he sees the convoy of

Page 586

 1     buses, and, subsequently, he acquires first-hand information from his

 2     observations at Orahovac about the composition of the victims, soldiers

 3     and civilians, men, boys, and elderly.  It was also apparent that these

 4     unarmed weakened Bosnian Muslim males already in VRS custody constituted

 5     no military threat."

 6             Finally, I wish to address my learned friend's remarks concerning

 7     contextual knowledge.  At the transcript at page 72 of today's hearing,

 8     my learned friend stated that contextual knowledge refers to the full

 9     spectrum of the knowledge of the accused which necessarily has a bearing

10     on his understanding of the situation and accordingly on his actions.

11             Your Honours, I'd like to address you and take you to some of the

12     judgement findings referring to the broad spectrum of that knowledge to

13     contextualise it.  In the judgement at 1418, dealing with the knowledge

14     requirements under Article 5, the Trial Chamber found that:

15             "Nikolic, as chief of security of the Zvornik Brigade, whose

16     commander took part in the attack on Srebrenica, knew of the military

17     attack against the protected Srebrenica enclave.  He further knew that

18     the Bosnian Muslim prisoners were transported from Bratunac to Zvornik,

19     therefore he knew that these were prisoners who had come into the custody

20     of the VRS as a result of the attack on the civilian enclave of

21     Srebrenica.  Nikolic saw that the Bosnian Muslim prisoners detained at

22     the Grbavci school and executed at Orahovac were not only soldiers but

23     also civilians and that no distinction or selection was made in terms of

24     those to be executed.  Nikolic's acts of murder are clearly tied to the

25     attack on Srebrenica and Nikolic knew that this was the case."

Page 587

 1             Concerning their findings relating to extermination, the

 2     Trial Chamber found that these murders were either within the common

 3     purpose of the JCE to murder or were a natural and foreseeable

 4     consequence of it.  Nikolic participated in the JCE to murder and he also

 5     ordered and planned murder as a crime against humanity.  These murders,

 6     to Nikolic's knowledge, were carried out on a massive scale with

 7     thousands of victims; thus Nikolic committed, ordered, and planned murder

 8     on a large scale.  On the basis of these combined circumstances, the

 9     Trial Chamber finds Nikolic guilty of extermination.

10             And the circumstances are further confirmed in their full context

11     in the Trial Chamber's judgement at paragraph 1426 concerning

12     persecution.  They found:

13             "Nikolic participated in the killing operation with the specific

14     intent to discriminate on political, racial, or religious grounds.  The

15     Trial Chamber is of the opinion that Nikolic's involvement in the

16     organisation and co-ordination of the massive-scale murder of a single

17     ethnic group, the Bosnian Muslims, shows his discriminatory intent.

18     Moreover, his active participation in the detention, killing, and

19     reburial, the circumstances and manner of which plainly display

20     discriminatory intent as previously found by the Trial Chamber is further

21     proof of Nikolic's intent.  The Trial Chamber therefore finds that

22     Nikolic participated in the JCE to murder with specific intent to

23     discriminate on political, racial, or religious grounds, and thereby

24     committed persecution through murder and cruel and inhumane treatment."

25             Your Honours, those are the full contextual circumstances of


Page 588

 1     Drago Nikolic's acts.  Your Honours, we have no further submissions

 2     unless we can help you any further.

 3             JUDGE ROBINSON:  Thank you.

 4                           [Appeals Chamber and Legal Officer confer]

 5             JUDGE ROBINSON:  Yes, okay, we'll take the break now and return

 6     at 20 minutes to 5.00.

 7                           --- Recess taken at 4.21 p.m.

 8                           --- On resuming at 4.41 p.m.

 9             JUDGE ROBINSON:  We come now to the personal addresses by the

10     appellants, and I advise all the appellants that they have a right, if

11     they wish to exercise it, to make an address.

12             Mr. Popovic, do you wish to make an address?  The address is not

13     to exceed ten minutes.

14             THE APPELLANT POPOVIC: [Interpretation] Yes, Your Honours.  It is

15     my intention to do so and I know that I have ten minutes.

16             Can I begin, Your Honours?

17             JUDGE ROBINSON:  Yes, please do.

18             THE APPELLANT POPOVIC: [Interpretation] Thank you.

19             Your Honours, it is not my intention to repeat what was said in

20     either my appeal or my judgement.  I just wish to point out some facts

21     that I noticed.  I would like to say that I never even thought of

22     eliminating a group or part of a group belonging to the opposing side.  I

23     never commanded, ordered, or made it possible for anybody to be killed.

24             During the conflict, I never commanded a combat unit.  I did not

25     notice that it was the plan of my superiors to commit genocide or kill

Page 589

 1     anybody.  Your Honours, is it possible that the genocide at Srebrenica

 2     was committed by three security officers of whom I am one?  On the other

 3     hand, 14 persons have been tried here, of whom many were commanders,

 4     which means that they exercised command duties in whose area of

 5     responsibility crimes were committed and genocide by using their

 6     resources and yet nobody was convicted of genocide.

 7             It is observed that according to the findings of this Tribunal, I

 8     was assisted in genocide by my commander, Krstic.  In this courtroom

 9     Article 17 of the temporary regulations of the VRS was shown, but it was

10     not correctly explained.  Your Honours, an officer from the superior

11     command cannot come without any authorisation and do what he pleases, as

12     has been said, without a verification.  If he has a written

13     authorisation, that's all right, but if he doesn't then he must be

14     verified by the superior officer in his own unit and in the superior

15     command.  They must be informed.

16             And as for using the resources of a unit for which the commander

17     and the crews can be held criminally responsible, namely, engaging

18     manpower, using fuel, ammunition, machinery, and equipment, I can say

19     that I haven't had any conversations with Momir Nikolic by any means,

20     although this was -- this is contained in the judgement.  I never talked

21     to Drago Nikolic about the entry of prisoners of war at Zvornik.  I

22     didn't assist or wasn't present at any execution at Orahovac, and I saw

23     Acimovic for the first time in this courtroom.  I

24     didn't take the members of the 10th Sabotage Detachment to Branjevo, and

25     I have never been at Branjevo, especially not at the time of the

Page 590

 1     execution.  That people from Milici were members of the Zvornik Brigade,

 2     I heard of them first -- for the first time here.  Please pay attention

 3     to P1309.

 4             Your Honours, this intercept cannot establish a link between the

 5     wounded at Milici and this.  The commander says:  I have prisoners, I

 6     have injured men.  But of course after such a fierce combat it is not

 7     possible to take prisoner only healthy men.  Of course there are wounded

 8     people.  And then there was the letter:  Should I send the wounded to the

 9     Zvornik hospital?  What would be the point of sending the wounded from

10     Milici to the Zvornik hospital when they already had been there?  And

11     thirdly, there are no entries in the log-book that I stayed at the

12     brigade at Zvornik on that day at all.  And fourthly, these people

13     mentioned here were exchanged and I am still not familiar with the fate

14     of the wounded from Milici to this day.

15             Now let me say why the evidence has been so twisted.  All --

16     everybody was at the Tribunal at the same time, Krstic, Obrenovic, Jokic,

17     Blagojevic, Momir Nikolic, some were politicians, some were servicemen.

18     Of course they had at their disposal evidence and everything that

19     incriminated them.  They had time to think of how they could shift the

20     blame to somebody else.  The system of the empty chair was used.  The

21     character of this judgement is such that to my mind all evidence was

22     twisted in the worst possible manner.  Where nobody recognised me, the

23     Trial Chamber did.  When it was a person with a moustache, it was me.

24     When it was a person without a moustache, it was me again.  If he was

25     tall with greyish hair, about 50 years old, it was me.  If he was

Page 591

 1     standing beside a Kampanjola vehicle, it was again me.  If he was driving

 2     a Golf, of course it was me.  A description was made which didn't fit me

 3     at all, but it was me.

 4             On a number of occasions I must have been at two places at the

 5     same time, Dragasevac and Kozluk, for example, Kozluk and Nis, Orahovac

 6     and Krivaca, although the distance is from 60 to 80 kilometres.  Then how

 7     can I defend myself?  Half truths and lies were used here.  Words were

 8     taken out of context and all the evidence of the Defence was neglected

 9     and different standards were applied to the Defence and to the

10     Prosecution.

11             In not one case was the principle of favouring the defendant

12     applied.  If the purpose was to convict me at all costs, then the

13     Trial Chamber surely achieved its goal and the red square shown by -- but

14     then the red square shown by the Prosecutor would not have been red,

15     there would have been an interruption in the line of command.  But the

16     line of command is one thing and the professional lines are something

17     else.

18             And let me finish by saying that I appeal to you to use both ears

19     in your heads.  Thank you for listening to me.  May I sit down?

20             JUDGE ROBINSON:  You may, and I thank you for your statement.

21             Mr. Beara, do you wish to make a statement?

22             THE APPELLANT BEARA: [Interpretation] Your Honours, I thank you

23     for offering me to make a statement, but I have nothing to say.  Thank

24     you.

25             JUDGE ROBINSON:  Thank you very much.


Page 592

 1             Mr. Nikolic, do you wish to make a statement?

 2             THE APPELLANT NIKOLIC: [Interpretation] Mr. President,

 3     Your Honours, for the second time I have the opportunity now to address

 4     you.  I did so at the end of my trial, and I can say without any

 5     hesitation that what I said back then really helped me to cope with all

 6     these events.  Today that all the proceedings have come to an end, there

 7     are many things I would like to say, but I am not a man of many words and

 8     it has never been easy for me to show my feelings.  That's why I'll be

 9     brief.

10             At the very start I would like to thank my Defence counsel and my

11     Defence team.  It has been eight years now since they began to work with

12     me, and irrespective of the final outcome I wish to say thank you.  Not

13     only did my attorneys help me a lot, but working with them I learned a

14     lot about myself too.

15             Likewise, I would like to express my gratitude to the witnesses

16     who came to witness -- who came to testify in my defence, and many did so

17    jeopardising themselves although they didn't even know me. Of course I was

18    not satisfied with the judgement, which in many respects was surprising.

19    I really hope that the submissions made this week have convinced you that

20    what is described in the judgement is not what actually happened.

21    However, regardless of the outcome and the sentence that I will receive in

22    the end, I must tell you what weighs heaviest on my mind, namely, that I'm

23    simply not the man described in the judgment. My attorneys explained to me

24    that whatever I say today will not affect my proceedings in any way

25    because I did not testify, and yet I wish to say at least for those who

Page 593

 1    are following this trial -- these proceedings that I didn't know about the

 2    prisoners arriving in Orahovac until the late evening of the 13th of July

 3    and until I was summoned to the meeting with Beara and Popovic on the

 4   following day.  When I met with them, I was not informed that the prisoners

 5    would be killed.  It was a very short meeting, during which I was informed

 6    that for security reasons a great group of prisoners would arrive at

 7    Bratunac and that they will be put up at different schools in the area to

 8    be exchanged. To my mind, it was a crazy idea because of the security risk

 9    to the population.  And only later when armed people unknown to me arrived

10    at Orahovac, I realised that the prisoners would be killed.  From that

11    moment on I focused on two things:  I wanted to protect the young members

12    of the military police from my brigade from being involved in that

13    nightmare and I wanted to protect myself, for which I deeply regret.

14    There were conditions for me to do more, in spite of my low rank and my

15    lack of influence, and I am paying a heavy price today for this grave

16     mistake.  I wish this had never happened and I'm truly sorry that all

17     these people were killed.

18     No matter how we look at that war, such a tragedy cannot be justified.

19             And finally, I wish to say that from my arrival to the

20     Netherlands more than eight years ago, I was well treated by the guards

21     at the Detention Unit and that all Judges and attorneys treated me with

22     respect, for which I am grateful to them.  At this moment I really am

23     unable to say anything else.  Thank you.

24             JUDGE ROBINSON:  Thank you very much, Mr. Nikolic.

25             Mr. Pandurevic.


Page 594

 1             THE APPELLANT PANDUREVIC: [Interpretation] Your Honours, at trial

 2     I used the opportunity to testify for 22 days in public session and

 3     without any protective measures.  I did not hesitate to answer every

 4     single question.  I described the events that were relevant to the area

 5     and time covered by the indictment.  I did so fully, honestly, and with

 6     the best of intentions.  I think that my testimony was the best way to

 7     address the Chamber and tell them what I knew; however, Your Honour, I

 8     also appreciate highly this opportunity to address you here.  My career

 9     as an officer who graduated from the military academy started in

10     Slovenia, where I stayed when the war broke out.  This was a war that the

11     JNA officers were not ready for and had not been preparing for.  The

12     whirlwind of the war took me from Slovenia across Croatia to Bosnia and

13     Herzegovina, where the war was even more cruel, just as any civil war is,

14     yet another war that we weren't prepared for.  I was always guided by the

15     values that were given to me by my family and my father who always said:

16     Do not look beyond the fence into the neighbour's yard; rather, live as

17     best you can.  And I did so during the war, treating others humanely,

18     assisting the enemy as far as the laws of war and human ethics dictated.

19     As an officer, I went through various training courses, such as the one

20     in Ljubljana, where I got a master's degree in social studies, and I

21     attended other courses that had to do with the social sciences in the

22     army.  I had various duties including that of an assistant professor at

23     the University of Sarajevo.  All the duties in the army were command

24     duties from the battalion commander to the brigade commander, as well as

25     the duties of the deputy commander of the Main Staff of the VRS.

Page 595

 1             As you know, Your Honour, I'm the only accused in this case --

 2     and I was the one who fully experienced the command responsibility in the

 3     war.  Addressing the issue of command responsibility is a sensitive

 4     thing.  One has to approach it from one's own view of ethics.  To discuss

 5     command responsibility, or rather, in the US army military view, for the

 6     months of January/February 2012, there is a critical view of the fact

 7     that the -- commanders are responsible for everything that their

 8     subordinates may do.  [In English] A commander is responsible but very

 9     often not in control.

10             [Interpretation] An army is a human organisation where,

11     unfortunately, bad things happen.  One cannot anticipate them and know

12     how to react.  When chaos emerges, the commander needs to take decisions.

13     In terms of organisation, we cannot expect the commander to bear

14     responsibility for all the criminal actions on the part of his

15     subordinates unless he was aware of and ignored these circumstances or

16     engaged in activities that were conducive to such criminal acts.

17             The VRS was a people's army, and the commander was unable to

18     supervise and manage one 's units 24 hours a day, seven days a week.

19     This was impossible.  To control a brigade is not the same as controlling

20     a crew on the ship.  The commander cannot keep tabs on all the bad

21     things; however, the commander is responsible for creating -- [In

22     English] A commander is responsible but very often not in control.

23             [Interpretation] In the period between 4 and 15 July, I was

24     absent from the AOR of the brigade.  I was in command of a different unit

25     and had no effective control over the Zvornik Brigade.  In that period, I

Page 596

 1     did not receive a single report from the Zvornik Brigade nor did I issue

 2     a single order to the Zvornik Brigade.  As is well-known, Your Honours,

 3     after the capture of the members of the 28th Division of the BH army,

 4     some of them were transported to the Zvornik municipality and were then

 5     executed.  These prisoners of war were not within the AOR or

 6     responsibility of the Zvornik Brigade.  The execution of these soldiers

 7     in the Zvornik municipality was a deed of individuals who were not

 8     members of the Zvornik Brigade but of other structures of the VRS.  These

 9     criminal activities did include some members of the Zvornik Brigade;

10     however, they did not do so under my order, approval, or tacit approval

11     as brigade commander.  The Trial Chamber was not able to come across a

12     single illegal order that I would have issued in relation to the

13     prisoners of war.  As a former member of the VRS and as a human being, I

14     condemn most strongly all these crimes and express my commiseration with

15     the victims.

16             The members of the 28th Division who were captured by the members

17     of the Zvornik Brigade in July 1995 were prisoners of war in the custody

18     of the Zvornik Brigade.  They survived and they were treated in

19     accordance with the international humanitarian law regulations.  They

20     were sent to the Batkovic camp near Bijeljina and were later exchanged.

21     There were 145 of them.

22             As His Honour Judge Kwon put it, I was the only one who did not

23     stay silent about any of the events that happened in the territory of the

24     Zvornik Brigade; rather, I noted down all these events in my regular and

25     interim combat reports as information came to me.  This is the only

Page 597

 1     official information in the VRS documentation mentioning the execution of

 2     the prisoners.  The information that I noted down in my reports was not

 3     further conveyed in other reports.  My interim command report that I

 4     issued on the 18th of July and sent to the Drina Corps shows what I knew

 5     of the prisoners executed in the Zvornik Brigade.  These reports, in

 6     addition to my oral reports, constitute my legal duty to report to my

 7     superior of the illegal events in my AOR.

 8             It was impossible or quite something that I was not able to do,

 9     that's to say to try and have those who committed these crimes punished

10     because they were not within my AOR.  I was also there to release the

11     column by opening up the corridor.  Your Honour, I think as brigade

12     commander under those circumstances I did act within the remit of my duty

13     as commander and I did as was right.  As I did back then, I do now

14     condemn the fact that these crimes happened and I apologise on my behalf

15     and on behalf of the Zvornik Brigade to all the victims and their

16     families.

17             I thank you, Your Honours.  I thank the Prosecution and

18     especially my Defence team.

19             JUDGE ROBINSON:  Thank you very much.

20             Mr. Zivanovic says there's an error in the transcript.

21             MR. ZIVANOVIC:  Yes, Your Honour, I noticed -- I noticed an error

22     in transcript.  It is on the page 104, lines 16 and 17, it reads -- these

23     are Mr. Popovic's words:

24             "I saw Drago Nikolic for the first time in this courtroom ..."

25             The name "Drago Nikolic" is the error because Mr. Popovic said:


Page 598

 1     I saw Srecko Acimovic for the first time in this courtroom.  Thank you.

 2             JUDGE ROBINSON:  Very well, the correction will be made.

 3             I'm sorry, you have a comment on that, Mr. Bourgon?

 4             MR. BOURGON:  No, it's a different topic, Mr. President --

 5             JUDGE ROBINSON:  Well, because we have --

 6             MR. BOURGON:  -- which has to do with what Mr. Nikolic told the

 7     Trial Chamber -- the Appeals Chamber, sorry.

 8             JUDGE ROBINSON:  [Microphone not activated]

 9             THE INTERPRETER:  Microphone for His Honour, please.

10             JUDGE ROBINSON:  I'm sorry, I said we are now going to hear from

11     Mr. Miletic who has asked that his personal statement be read by his

12     counsel.

13             Counsel, you may read his statement.

14             MS. FAVEAU: [Interpretation] Thank you, Your Honour.  I'm going

15     to read Mr. Miletic's statement in the language he has written the

16     statement, i.e., in Serbo-Croatian.

17             Your Honours, anything that I may have to say about the judgement

18     and the assessment of evidence or the way the Trial Chamber proceeded

19     would be superfluous.  I am certain that through the evidence presented

20     by my Defence team you were able to arrive at all the relevant

21     information related to me personally and the position I had during the

22     war in the former Yugoslavia.  Primarily, I'm referring to my duty in the

23     staff sector of the Main Staff which did not have any de facto or de jure

24     command authority outside of the administration for operations and

25     training and outside of the south sector when the Chief of Staff was

Page 599

 1     absent from the command post.

 2             None of the commands of the former JNA or the VRS had within its

 3     establishment the role of adviser.  It turns out here that my immediate

 4     superiors included both the Chief of Staff as my immediate superior and

 5     the commander who was my superior second in the line and was the

 6     immediate superior of the Chief of Staff.  Under the law, the rules of

 7     engagement and instructions, this is impermissible and impossible and

 8     contrary to the establishment of the Main Staff.

 9             Unlike the Chief of Staff and the assistant commander who had

10     command authority over specific units, I did not have any subordinate

11     units and I could only ever issue direct orders to the senior officers

12     from the administration for operations and training.  None of my

13     subordinates or myself, for that matter, were ever seen in Srebrenica or

14     Zepa in July 1995.  It is an exclusive right of the commander in all the

15     armies across the world to make decisions and in this way express his

16     intention as to the way in which he wishes to reach the objective, and

17     nobody else within the command has that right and especially not the

18     chief of the administration for operations and training.

19             In principle, where the commander is that is where the command

20     is.  Nobody has the right, nor would the commander allow for that, to

21     co-ordinate the work of the commander and his subordinates.  Nobody can

22     be more informed about the situation in the battle-field where the

23     commander is present than the commander himself, and this was what the

24     Trial Chamber erred in.  Co-ordination implies co-ordination and

25     management, and senior officers can exercise co-ordination only pursuant

Page 600

 1     to a written order from the commander of the Main Staff.

 2             My role within the drafting of the directive was regulated in

 3     precise terms in the instructions for the work of the commands and staffs

 4     and annexes, paragraphs 95 to 140 and 95 to 103, where it is stated where

 5     decisions are made within a team, this is what the role of the operations

 6     officer will be in drafting the directive.  The operations officer will

 7     draft the plan according to which the commander will work and take

 8     decisions pursuant to the order and instructions from the commander or

 9     the Chief of Staff.  He will also assess own forces and the terrain and

10     make an assessment of the time and will make an assessment for the

11     Chief of Staff to draw conclusions from.

12             Further duties of the operations organ until the -- a decision is

13     taken includes noting down or recording proposals given by the

14     Chief of Staff or the tasks that the Chief of Staff may have for the

15     units and command and control and will also write down the proposals from

16     the assistant commander -- from assistant commanders within their

17     professional lines of duty.  Thereafter, the commander himself will make

18     his decision known by either adopting these proposals fully or partly or

19     making his own decision.  The commander will then issue a task to the

20     Chief of Staff and other members of the team who are then to formulate

21     sections of the directive from their own purview and send them to the

22     operations officer.  The chief of the operations sector will then put the

23     directive together and would put the various proposals into the various

24     sections so that they, the directive itself, would have the proper shape

25     and form.  In keeping with paragraphs 103.3, 493, 502, and 504 of the

Page 601

 1     instructions governing the work of commands and staffs.

 2             The operations sector has the duty to compile and draft the

 3     directive on the basis of the proposals received without amending it or

 4     modifying it in any way and submit it to the Chief of Staff, who will

 5     review the draft and send it on to the commander.  This is the way the

 6     Directive 7 and 7.1 were drafted.  At the meeting of the commanders which

 7     took place on the 3rd of March, 1995, which is noted down in the

 8     commander's diary, the commander took the decision and I drafted the

 9     directive according to the said method.

10             The directive and the disk on which the directive was recorded

11     were handed over on the 4th of March, 1995, to the Chief of Staff who was

12     supposed to read it and send it on to the commander.  And this is how

13     things happened because both I and the Chief of Staff were away from the

14     Main Staff in the days that followed.  The directive was produced on a

15     computer.  It is hard for me, therefore, to understand why there is no

16     pagination on the first and last page and why the last line on page 10

17     should be repeated on -- as the first line on page 11.  I could not have

18     made such a mistake because Milovanovic would have spotted it and

19     returned the directive to me.  Normally he never would miss such

20     mistakes.

21             I would like to draw your attention to a couple of details about

22     myself as a human being, officer in general.  I have been in detention

23     for eight years now and I have been socialising with the detainees of all

24     ethnicities and I have never had the slightest of problems with that.  I

25     was born in a mixed village in Eastern Bosnia.  The whole family of mine

Page 602

 1     is multi-ethnic.  My wife is a Croat and our convictions that religion

 2     and ethnicity do not matter is something that we have transferred to our

 3     children.  My son is also married to a Croat and my daughter is married

 4     to a Macedonian.  We believe that multi-culturality is -- in the family

 5     is our enormous wealth.  Religion, ethnicity, or the colour of the skin

 6     have never been the parameters based on which we would judge people.

 7             In the beginning of the war, my two friends, one of them Zeljko,

 8     a Croat, and Muharem, a Muslim, risked their lives to help me pull out of

 9     Sarajevo the families of my brother and sister.  As a young man I lived

10     in Sarajevo and I cannot even begin to describe how sad I was when I had

11     to leave it in 1967 for Zadar and it was even harder for me to see what

12     was happening to Sarajevo during the war.  I am 100 per cent sure that I

13     and most of the senior officers of all ethnicities did not wish for the

14     war to happen.  We knew what war meant, unlike many of the hot heads who

15     had no idea what they were doing.  The war did not bring any good to

16     people, only innocent victims, destroyed homes, and devastated families.

17             My value judgement is such that there can be no justification for

18     a crime.  I am certain about what I am and what I did.  I was

19     honourable -- I was an honourable soldier and a general, and primarily as

20     a human being I can say that my conscience is clear and I can look

21     everybody in their eye.  An honourable and honest man has nothing to be

22     ashamed of.

23             Now, what is important here are victims, victims that do not have

24     a colour of the skin, religion, or ethnicity.  They are simply innocent

25     victims, and, as such, deserve that the truth be heard of their fate.  I

Page 603

 1     want to pay my respects and my condolences to their families.

 2             I did not have the intention of contributing to the tragic fate

 3     of any person through action or inaction.  I went through life doing an

 4     honest job of work and caring for my family.  That's why I volunteered as

 5     soon as the indictment was published on the 15th of February, 2005,

 6     because I believed that an innocent man has nothing to fear.  I

 7     volunteered to come before this Court.

 8             Your Honour, thank you for giving me the opportunity to address

 9     you in this way and for your patience in hearing me out.

10     Radivoje Miletic, Scheveningen, 6 December 2013.

11             JUDGE ROBINSON:  Thank you very much.

12             MS. FAVEAU:  [Overlapping speakers]

13             JUDGE ROBINSON:  Mr. Bourgon.

14             MR. BOURGON:  Thank you, Mr. President.  With your leave, I'd

15     like to address quickly the Chamber.  Maybe it would be better if

16     Mr. Nikolic could remove his earphones, Mr. President, because it has to

17     do with something that he said.

18             JUDGE ROBINSON:  This is a strange request.

19             MR. BOURGON:  It's -- the reason, Mr. President, is that he

20     informed us before what he would say and there's something in the

21     transcript that took us by surprise and we don't know if it was said

22     either in English or in his language.

23                           [Appeals Chamber and Legal Officer confer]

24             JUDGE ROBINSON:  Mr. Bourgon, I've consulted with my sister and

25     brothers and we will not accede to the request.


Page 604

 1             I turn now to the last matter, the next Status Conference in this

 2     case is due to be held on or before the 22nd of December, 2013, and I

 3     consider it wise to address the issues that would arise in such a

 4     conference.

 5             Currently the Appeals Chamber is seized of seven motions, which

 6     are all under consideration and the decisions will be issued in due

 7     course.

 8             Now, prior to adjourning I'd like to ask each of the appellants

 9     whether they wish to raise any concerns regarding their health or the

10     conditions of their detention.

11             Mr. Popovic, do you have any matters that you wish to raise?

12             THE APPELLANT POPOVIC: [Interpretation] No, Your Honours.

13     Everything is all right for the time being.

14             JUDGE ROBINSON:  Thank you very much.

15             Mr. Beara?

16             THE APPELLANT BEARA: [Interpretation] Everything is the way it

17     should be.  Thank you.  I have no problems at all.

18             JUDGE ROBINSON:  Thank you.

19             Mr. Nikolic.

20             THE APPELLANT NIKOLIC: [Interpretation] Mr. President, I have no

21     problems.  Everything is fine.

22             JUDGE ROBINSON:  Thank you.

23             Mr. Pandurevic.

24             THE APPELLANT PANDUREVIC: [Interpretation] Your Honours, the

25     conditions are good and everything is in line with the regulations.


Page 605

 1     Thank you.

 2             JUDGE ROBINSON:  And are there any additional matters to be

 3     raised by the Prosecution or the Defence?

 4             MR. KREMER:  Not by the Prosecution, but I note that Ms. Faveau

 5     has not spoken on behalf of her client.  She may want to offer --

 6             MR. OSTOJIC:  [Microphone not activated]

 7             MR. KREMER:  No, no, vis-a-vis his health and the conditions of

 8     detention.

 9             JUDGE ROBINSON:  Very well.

10             Ms. Faveau.

11             MS. FAVEAU: [Interpretation] Your Honour, could we go in

12     closed session or private session.

13             JUDGE ROBINSON:  Yes.

14                           [Private session]

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)


Page 606

 1                           [Open session]

 2             THE REGISTRAR:  Your Honours, we're back in open session.

 3             JUDGE ROBINSON:  Yes, any other matters to be raised?

 4             MS. NIKOLIC: [Interpretation] Your Honours, I respect the

 5     decision that you took a minute ago with regard to the submission of

 6     Mr. Bourgon, but I kindly ask you to allow us to have the transcript

 7     corrected subsequently because I heard what Mr. Nikolic said but it was

 8     recorded differently.  And we will try to correct the transcript if you

 9     allow.  Page 107, lines 18 through 23, are the reference in this regard.

10                           [Appeals Chamber and Registrar confer]

11             JUDGE ROBINSON:  Yes, I'm reminded that there is in place a

12     Registry procedure for the verification of the transcript, and I advise

13     that you follow that.

14             This concludes the hearing of the appeals.  I'd like to thank on

15     behalf of the Chamber the parties for their submissions, I'd also like to

16     express my gratitude to the interpreters, the court reporters, the

17     court officers, the court ushers, the audio/visual staff, IT, security,

18     and all staff involved for their assistance and co-operation during this

19     week.  The Chamber will issue its judgement in due course.

20             We are adjourned.

21                           --- Whereupon the hearing adjourned at 5.24 p.m.