120821ED

Page 19370

1 like to thank the translation unit, the CLSS, for the special efforts it

2 has made to ensure that the translations were completed before the summer

3 recess. I recall that the Prosecution will be presenting its closing

4 arguments today and the Defence will be presenting its closing arguments

5 tomorrow, and that on Thursday each party has an opportunity to present a

6 rebuttal of 30 minutes' duration if it wishes. This morning there was

7 informal communication from the Chamber to the parties about 15 exhibits

8 which are at the moment marked for identification. I would invite the

9 parties to be prepared to deal with that matter to resolve the final

10 administrative problems on Thursday after the end of the closing

11 arguments.

12 Mr. McCloskey, before I invite you to make your submissions, I

13 should remind you that they need to be completed by the end of today.

14 Please bear that in mind. You have the floor.

15 MR. McCLOSKEY: Thank you, Mr. President.

16 I first want to tell the Trial Chamber that it has been an honour

17 to be in front of you and I thank you for your courtesy and your

18 professionalism. As much as it can be in a case like this, I can tell

19 you it's been a pleasure to be before this Tribunal, before this Court.

20 It's been a long trial, but you've allowed us, both the Prosecution and

21 the Defence, to put on our cases. We've not been rushed. And that is

22 more appreciated than you can imagine. I want to thank the Defence team

23 of Mr. Gajic who did a very good job and came on when they were very much

24 needed, the staff of this courtroom, especially the interpreters, and my

25 team, Nelson Thayer who is not here with us, Kweku Vanderpuye,

Page 19371

1 Rupert Elderkin, Abeer Hasan, and of course Janet Stewart.

2 Now the plan today is for me to speak to you for about a third of

3 the time, concentrating on the significant contributions of

4 General Tolimir to the joint criminal enterprise to murder, what we refer

5 to as the murder operation. After me Kweku Vanderpuye will take roughly

6 one-third and discuss the same thing regarding General Tolimir and his

7 responsibility of the forcible transfer charges. The last third will be

8 divided by Rupert Elderkin and Abeer Hasan. Mr. Elderkin will speak to

9 you of the opportunistic killings and murders that occurred and Ms. Hasan

10 will speak to you of the impact of the victims and how that relates to

11 the genocide.

12 So I will try not to overly repeat what we have said in the trial

13 brief. I do want to address some of the defences that were brought up,

14 but this is finally a chance for me to put the key factors and evidence

15 in one targeted approach, hopefully within an hour, an hour and a half,

16 and so I will be going over some of the most important contributions of

17 General Tolimir.

18 From 13 July through 16 July and even beyond that, the VRS

19 summarily executed over 7.000 men and boys of Srebrenica. This

20 horrendous crime was ordered by Ratko Mladic and Radovan Karadzic and

21 carried out by elements of the Main Staff, forces of the Drina Corps, and

22 the forces of several Drina Corps brigades. All of these forces you are

23 by now familiar with and I won't repeat them here.

24 The murder operation, the JCE to murder the Srebrenica men and

25 boys, was organised and overseen and implemented by the intelligence and

Page 19372

1 security administration of the Main Staff led personally by

2 General Tolimir; organised, overseen, and implemented on the ground by

3 his chief of security, Colonel Beara. Beara was assisted on the ground

4 by the chief of intel Colonel Salapura and Main Staff intel officer

5 Colonel Jankovic. The Main Staff security worked closely with and

6 professionally supervised the Drina Corps security branch, in particular

7 Colonel Vujadin Popovic, together with the Bratunac and Zvornik Brigade

8 security units, Captain Momir Nikolic, Bratunac; Lieutenant Drago Nikolic

9 and Milorad Trbic of Zvornik. The murder operation was carried out and

10 implemented with exceptional discipline, organisation, and efficiency.

11 In no less than four days the VRS murdered an enormous part of the

12 Srebrenica population of men and boys. And this was largely due to the

13 experience, efficiency, and cold ruthlessness of the security branch and

14 their work with the commanders in carrying this out. General Tolimir

15 must bear responsibility, as he led this murderous group.

16 The operation was conducted in a traditional military command

17 according to the principles of the VRS and the chain of command was

18 strictly adhered to. Without the military organisations working

19 together, as they had throughout the war, with well-trained discipline

20 and a solid chain of command, there is no way the VRS could have murdered

21 over 7.000 Muslim men and boys in just four days. The adherence of the

22 chain of command and military discipline is what allowed this terrible

23 crime to be committed so quickly and efficiently. The fact that the VRS

24 remained disciplined, organised, and respected procedures in the chain of

25 command is an essential foundation by which all the evidence must be

Page 19373

1 reviewed. It does not by itself of course negate the Prosecution's duty

2 to prove beyond a reasonable doubt the contributions of General Tolimir.

3 But once we see this working as it should with the people in the places

4 doing their job, it provides you with a very important foundation by

5 which to judge all the evidence.

6 The Defence is of course very aware that a functioning chain of

7 command is a -- undercuts any defence they have and is something they

8 must attack, and they do. They first do it by quoting Mr. Butler, who

9 very succinctly stated the position. On July 8th Mr. Butler stated in

10 part:

11 "The fact that a military has been ordered to carry out an

12 unlawful order doesn't mean they're going to carry it out in a

13 non-military manner. A military organisation is just that, it's an

14 organisation. It operates along a defined structure and hierarchy."

15 He goes on to say:

16 "Despite the involvement in unlawful acts, the people that a

17 commander needs to involve are those military professionals who by

18 training and by profession are responsible for making certain activities

19 happen within a military organisation."

20 Mr. Butler went on to explain General Tolimir's and the

21 Main Staff responsibilities and their job and tied that into the crimes

22 as our brief and has been the focus of most of this case. The Defence

23 challenges Mr. Butler and says that that did not happen.

24 In their brief they say that for a mass murder to be conducted by

25 the VRS, there must have been some deviation in the customary practices

Page 19374

1 in the chain of command. Now, they say that but then they don't provide

2 us with any deviation; and frankly, we don't see any deviation. The

3 evidence doesn't reflect a deviation. That's why we spent so much time

4 with the procedures, the rules, the documents, so you could see that this

5 thing was functioning as it should.

6 The only deviation that we see is that instead of caring for the

7 prisoners in their custody as they should and delivering them safely and

8 securely to the Batkovic prison camp, they delivered them to the killing

9 fields of Orahovac and Petkovci and other places where they were in a

10 systematic and organised fashion summarily executed by firing squad.

11 The only thing the Defence really tells us is that

12 General Tolimir was in Zepa at the time. Now, of course there's

13 nothing -- this is no deviation. Perhaps we're to infer from the fact

14 that he was in Zepa that he was somehow not involved, but of course as

15 you know Zepa is within the Drina Corps zone of responsibility, it's very

16 close, very connected to the Srebrenica events. General Tolimir was

17 within comms the entire time that he was there, and as chief or as the

18 head man of the intel and security of the Main Staff, he was clearly

19 responsible for the events that are going on in the Main Staff as well as

20 his responsibility in Zepa. So by purely saying that he is in Zepa

21 provides no defence whatsoever. And to suggest that he is not involved

22 in the Srebrenica events is a flat-out misstatement by the Defence. Of

23 course we'll go over and see soon, he is constantly writing and making

24 proposals regarding the Srebrenica events and the prisoners that he's

25 learning all about there.

Page 19375

1 Perhaps there is another defence which we haven't heard frankly,

2 that Mladic sidelined Tolimir for some reason. We have no reason why.

3 We all know Tolimir is a brilliant strategist, a hard worker, he knows

4 his job better than anybody else. And remember the witness said lo to

5 the man that keeps information from General Tolimir. The Srebrenica

6 murder operation was one of the most important and critical aspects of

7 this war. Should that secret have gotten out, it could have changed and

8 did change the history of this war. Mladic needed his top man on this.

9 Why on earth would Tolimir have been sidelined? Though they don't say

10 that. I would think it. I would suggest you would think it. There is

11 no reason. They give us no reason.

12 Perhaps there is a suggestion that it is because he is an

13 honourable man, a man of faith, that would not be involved in the mass

14 murders, and therefore he was set aside from this. This is not said

15 anywhere that I can see. But there's one document in this case that

16 destroys that Defence, and it's not ever my position to come into this

17 court and judge people personally. That's not what this is about. It's

18 about criminal responsibility. But there's one document in this case

19 that is the most insidious document I have seen in my career here or that

20 is in this case, and it's drafted by General Tolimir and it shows the

21 depth and the deprivation that he was willing to go during this war.

22 This is Exhibit P488 and it's one of the few exhibits that I want you to

23 take a look at, if we could.

24 You'll remember this is dated 21 July 1995. It is in the middle

25 of the attack on Zepa, a few days before the Zepa population is forced

Page 19376

1 out. The Zepa troops are holding out, they're in that amazing terrain

2 that you saw, in caves, in ravines, they're very hard to get at by the

3 VRS. And from his position near the Rogatica Brigade Tolimir sends out

4 this proposal to -- personally to General Miletic, the chief of

5 operations and the person that's clearly involved and able to communicate

6 with Mladic and others.

7 You can look briefly at the first three paragraphs. It just

8 provides intel, information, and others. And then Tolimir goes on to

9 say:

10 "We believe that it would be more favourable to hold direct

11 negotiations after inflicting losses on the enemy's military personnel.

12 We request the means for crashing the enemy's defence in the sectors of

13 Brezova, Ravna, and Purtici."

14 Negotiations from a point of military strength is normal, it's

15 fine. But then this is what he says:

16 "The best way to destroy them would be by using chemical weapons

17 or aerosol grenades and bombs. Using these we would ... the fall of

18 Zepa and the surrender of the Muslims."

19 Now, a lot has been made of these chemical weapons. We know --

20 as we all know this is tear gas, and the tear gas in a combat can be used

21 to ferret these people out of these places and then shoot them down.

22 It's not something that you could tell with the VRS officers we talked to

23 wanted to talk about. But that's not really what I'm talking about here.

24 That's not what concerns me so much. Yes, he wants to use these weapons

25 to ferret people out and he wants to use what are fuel air explosives

Page 19377

1 which detonate in the air and can bring people out of these areas, if you

2 recall Mr. Butler's testimony. And he's suggesting this is the best way

3 to take down the army.

4 And then this is the part that I'm getting to.

5 "We believe that we could force the Muslims to surrender sooner

6 if we destroyed groups of Muslim refugees fleeing from the direction of

7 Stublic, Radava, and Brloska Planina."

8 Here he is simply proposing that refugees, civilians, be

9 destroyed in order to get the army to surrender sooner. This is a

10 calculated and vicious and criminal proposal. As you could see from the

11 reaction of the various VRS officers we asked about it. It's not a

12 question of translation. I asked General Obradovic read it and tell us

13 what he said about it, and he said, Oh, this means attacking civilians

14 and that's not what the VRS was about. And then he opined for the first

15 time that was a misinformation. It could be part a misinformation

16 campaign by General Tolimir to scare the enemy. And that fell apart

17 because as you know this is a proposal for chemical weapons, and we saw

18 the chemical weapons come personally to General Krstic through very

19 confidential means. So this is a real document. General Tolimir did not

20 adopt this idea that this is a misinformation. It was a real document.

21 There's nothing in his brief that this is misinformation. This is

22 General Tolimir doing what he feels needs to be done to win the object:

23 Get the Muslims defeated and get the population out the of Zepa. He is

24 willing to do Mladic's bidding, he's willing to do what it takes.

25 One of the reasons we're here is because in the 20th century

Page 19378

1 targeting civilians in large scale was a common practice to bring

2 countries to their knees. We're here to stop that. General Tolimir

3 tried to make it happen. I don't know if it happened. We don't know if

4 shells fell on civilians up there, but the fact that he is able to target

5 civilians, women and children, provides a clear indication to you that he

6 is capable of leading an operation to murder the able-bodied men of

7 Srebrenica. There's no reason to bring Tolimir out of the chain of

8 command. He is the man that will get the job done. He will do what it

9 takes.

10 Now, I'd like to get into the specifics of his involvement. In

11 any human endeavour where people are organised to achieve a particular

12 purpose, be it military, diplomatic, business, academic, legal, or

13 whatever, there are periods of crisis, where planning and decision-making

14 and directions become particularly important and intense; and it's during

15 these times that communication is vital. It's also, as we see during

16 these periods of crises or critical phases that the VRS was most likely

17 to let their guard down and perhaps put something in a document that they

18 wouldn't have otherwise or say something over an open line. And so what

19 I've done is I've divided this case into ten critical phases roughly

20 along chronology, but I don't want to be bound by a pure chronology, and

21 talk to you about each one of them and General Tolimir's involvement in

22 them.

23 The first critical phase is around that period of 11 and 12 July

24 when there is a potential for the VRS to capture large numbers of Muslim

25 men and boys in Potocari and that on -- and on the 12th of July that same

Page 19379

1 potential, to capture the fleeing Muslims that are going through the

2 woods. Do we see General Tolimir getting involved in this critical phase

3 right before the decision to murder the men from Potocari? Well, the

4 first thing we'd look at is his job responsibility. Capturing prisoners

5 in large quantities and interrogating them and dealing with them and

6 getting them securely transported, does that -- is that something he

7 fits? Well of course it is. That's why we spent so much time on the

8 military police, the security job, the responsibility to oversee the

9 military police. We see the documents from Popovic, from Beara, even

10 Tolimir about the military police.

11 Also did Tolimir get involved in large group? Of course he did.

12 We see that from the evidence. Remember, we spent such a long time with

13 Mr. Butler going over the history of General Tolimir and all the various

14 prisoner exchanges he was involved in, from the little to the big, from

15 the beginning of the war onward. So not only is it in his job

16 description but up until July 11th, 1995, he had been doing just that for

17 large numbers of potential prisoners and prisoners. So he should have

18 been involved. Was he?

19 Well, on the evening of 11 July that we know from Momir Nikolic,

20 and from the reality of the situation, that a thousand able-bodied Muslim

21 men could be viewed from VRS positions and this was reported up the intel

22 chain. These were the men that were later separated in the next two

23 days. Was Tolimir aware of this? Absolutely. How do we know that? We

24 know that on the 12th of July, the very next day, he travelled by car to

25 Bijeljina, where he met with Todorovic, the East Bosnia Corps security

Page 19380

1 officer to arrange for 1.000 to 1200 prisoners reception at Batkovic. We

2 know this from Todorovic, we know this from Tolimir's driver. So clearly

3 Tolimir at this point is keyed in on these 1.000 potential folks even

4 before they're separated and arrested.

5 Also the day of the 12th we know that the army and the civilians

6 are fleeing through the woods and this is when the VRS gets a good intel

7 grasp that most of them are heading in the direction of Cerska and on

8 towards Tuzla. Does General Tolimir become aware of those folks? Well,

9 the answer is absolutely yes. We know that because he comes back from

10 Bijeljina on the evening of the 12th and stops by Vlasenica, the

11 Drina Corps headquarters, according to his driver. And we see two

12 documents authored by Tolimir that come out of the headquarters, both of

13 which deal with the subject of these fleeing groups. And he says, and I

14 quote, in the first one which was Exhibit P02203:

15 "Prevent armed Muslims from illegally reaching Tuzla and ordered

16 to arrest them."

17 Of course, we need to take prisoners.

18 The next document he sends out shortly after that in the late

19 evening is Exhibit D64, and it talks about the same topic and says:

20 "To prevent the withdrawal of enemy soldiers:," and I quote, "and

21 to capture them."

22 So he is fully involved in knowing about the men in Potocari, the

23 men in the woods. At this point who is captured and who is not has not

24 really happened yet as far as he knows. And then Popovic sends a report

25 to the Drina Corps saying that they've kept -- they're keeping separated

Page 19381

1 men and Tolimir should have seen that. And in the same document I just

2 mentioned, we can see that he is aware that men are being separated and

3 kept because he says after talking about capturing men from a column:

4 "Note down the names of all men fit for military service who are

5 being evacuated from the UNPROFOR base in Potocari."

6 This means he knows the separations and is keeping these men.

7 There would be no reason to note their names down if he is merely

8 referring to men that are being shipped off to Kladanj. It serves no

9 purpose to note their names. The men go off to Kladanj, they return to

10 the BiH, the names don't mean anything to them. It's only if they're

11 going to keep them and screen them, which, as is their right, to

12 determine if they're good intel sources, if they're perhaps war

13 criminals, they're perhaps army that they can keep to exchange. So he

14 knows about that. He knows that those men are being separated and he

15 sends out this order, to note down names. Now, the next -- I will

16 comment on what that means in our view relating to his knowledge in the

17 murder operation. And that brings the next critical area, and that is

18 the decision to kill the approximately 1.000 Muslim men that are in

19 Potocari.

20 And there is no evidence in this case that General Tolimir was

21 consulted before that decision was made or that he was involved in the

22 original decision. In fact, the very fact that he suggests that he

23 ordered lists be made is completely inconsistent with the murder

24 operation because that would create the evidence of the crime, and we

25 never saw lists being made of this murder operation except for a small

Page 19382

1 time in Nova Kasaba when Mladic came and stopped that list being made, as

2 you recall. But in Potocari, with Mladic present, with Popovic present,

3 no lists were ever made. It would not have been made. So that's an

4 indication that by the 12th of July Tolimir has not been engaged in that.

5 He's been on the road to Bijeljina, he's been up in the East Bosnia Corps

6 which has not been brought into this as yet. And the one thing we learn

7 from expert Ratko Skrbic that wasn't complete nonsense was that in any

8 operation it's essential to keep it as closely held as possible and it

9 only goes out when it needs to go out for the operation to succeed. So

10 Mladic and his people in Bratunac. And they hadn't even been able to

11 arrest the people from Potocari yet. I don't believe they contacted

12 Tolimir. So at that point we don't see Tolimir involved. But it is

13 important for your deliberations to determine when the decision to murder

14 the men at Potocari took place.

15 And as you should recall, it's always been the Prosecution's

16 position that this happened sometime the night, the late night of 11 July

17 when Mladic and Krstic, Zivanovic, Popovic were together at the Hotel

18 Fontana and they found out about these men and before the 10.00 meeting

19 when Mladic announced that he would be screening the men captured in

20 Potocari, men 16 to 70. So clearly by the morning meeting when Mladic

21 says men 16 to 70 will be screened, Mladic has made a decision what to do

22 with these men.

23 What was that decision? Well, go to the testimony of

24 Momir Nikolic, it's very clear. Popovic after the meeting tells him to

25 begin separation processes and identify areas that these men will be

Page 19383

1 killed. Nikolic gives him the name of the Ciglane, the brick factory,

2 the Sase mine. Now, Momir Nikolic, any person that testifies pursuant to

3 a plea agreement, a plea agreement that was involved in the events, must

4 be viewed with great caution by you. You need to carefully look at

5 everything he says and it is that material that's corroborated that can

6 be used in your judgement. But in corroborating this kind of evidence

7 you can look to the entire set of facts and circumstances. One thing to

8 look at in this particular case, the Ciglane brick factory. Look to

9 Deronjic's testimony. This is, according Deronjic, was where Beara was

10 trying to kill people on the 14th. And it's no coincidence that Beara is

11 using the brick factory and Momir Nikolic has told Popovic to use the

12 brick factory.

13 But fourthly as a factor in determining when the murder operation

14 occurred is, Mladic says he's going to screen the men for war criminals.

15 There is no screening done. Mladic flat out lied. No significant

16 screening. They did not even minimally keep IDs. IDs were piled up and

17 burned. If you were screening, you would need to get the IDs of the men

18 so you could identify who were men of interest and who were men that

19 could be released. Once they go to Batkovic, they're going to be

20 registered by the ICRC and you're going to lose them. So if you truly

21 want to screen them and be able to get people in order to -- God only

22 knows what would happen to them, probably the same thing that happened at

23 Palic. But you need to make lists. You should interrogate them. None

24 of that happened in any significant way. This is the factor that you can

25 rely on and you can bank to show that this murder operation was in play,

Page 19384

1 had been decided by the afternoon of 12 July because we see no screening.

2 In addition, the men are treated less than animals. There's little,

3 little water, just enough to keep them alive. No food, no first aid.

4 They're kept in horrendous conditions. Worse than animals. You wouldn't

5 treat an animal that way. They were clearly marked for death.

6 All right. So that brings us to the next critical phase. On the

7 13th of July, thousands of prisoners, at least 1.000, appear on the road

8 at Kasaba in the morning. These are men that are turning themselves in,

9 as we know. Is Tolimir involved in that? Does he know about that, like

10 he has with every other group of prisoners or potential prisoners? Yes,

11 absolutely. And we know that because even though he is in Zepa that --

12 beginning on the morning of the 13th, we have a document, a now-famous

13 document, and I want you to see that document, it's Exhibit P125. This

14 is the document authored by Savcic, talking about a proposal that

15 General Tolimir made --

16 JUDGE FLUEGGE: Mr. McCloskey, I think this document is

17 confidential. It should not be broadcast. No, it was a mistake. I was

18 misled. Please continue.

19 MR. McCLOSKEY: It's good to have caution.

20 You will recall this as the document from the very beginning the

21 Defence has challenged its authentic. They said it's a fake. They said

22 it in their trial brief, they said it during trial. They said it in

23 their closing brief. They repeatedly challenged it. This is a fake.

24 But let's see what it is. We know from the testimony of General Savcic

25 that he and Tolimir in the morning are in Borike and that there's

Page 19385

1 discussion over the telephone with Malinic who's in Kasaba. We have

2 intercept to that fact, about these men that are appearing in large

3 numbers in Kasaba and that this is a topic of discussion between Tolimir

4 and Savcic. Despite the fact that Zepa is due to start on the 14th,

5 Tolimir is completely involved in this and receiving detailed information

6 on it. We know that. Whenever you see a Tolimir document, don't forget

7 it's basing information that he has received. It's not just a one-way

8 street. He doesn't send out these proposals unless he gets the material.

9 We don't have -- we only have a fraction of the material in this case.

10 So he is getting quite a bit of information. Look at the proposal. It's

11 to the commander of the Main Staff, Mladic, and for the information of

12 General Gvero and the commander of the military police who was Malinic.

13 And it's "order." So this is an order. And then it leads with a factual

14 background about the thousand members of the former 28th Division that

15 are in the area of Kasaba and under the control of the MP battalion of

16 the 65th Protection Regiment of the Main Staff. And then it says --

17 Savcic says:

18 "Assistant commander for security and intelligence affairs of the

19 GSVRS proposes the following measures ..."

20 And then he lists the four proposals, all of which have to do

21 with secrecy, normal secrecy to hide the operation that's going on. But

22 what has always been considered abnormal was this fourth proposal:

23 "Once the commander of the Military Police Battalion receives

24 this order, he shall contact General Miletic and receive from him

25 additional orders and verify if the proposal has been approved by the

Page 19386

1 commander of the Main Staff" -- I'm sorry, I've got the wrong one. I

2 meant 3.

3 "The commander of the Military Police Battalion shall take

4 measures to remove war prisoners from the Main Staff Milici-Zvornik road,

5 place them somewhere indoors or in an area protected from observation

6 from the ground or air."

7 Now, Savcic told us - as we knew otherwise - that the only people

8 who had access to the air in the daytime was NATO. And so this is a

9 deliberate attempt to hide these large number of prisoners from NATO.

10 And why would they want to do that? Mladic has told Nesib Mandzic early

11 that he had a choice: If they surrendered, they could survive; if they

12 did not, they could disappear. Now, this is Tolimir's effort to be

13 consistent with Mladic's order and make them disappear. We asked Savcic

14 to give us an interpretation of what this would be about. He didn't say

15 it was authentic, he didn't say it was not authentic. And when first

16 asked about this, his explanation was: Well, we would have been

17 concerned that NATO would have thought that this large group of people

18 were, in fact, Serbs and would bomb them. I mean, this is so absurd that

19 this clearly goes to the consciousness of General Savcic, knowing that

20 this is an inculpatory document and he's doing his best under questioning

21 to get away from the truth. That's exactly what General Tolimir's

22 continued allegation that this is a fake is all about. If this is just a

23 document trying to keep military issues secret, why isn't it said so

24 early on and frequently, by Savcic, by Tolimir, by anyone? It's not.

25 The one thing you got finally in the trial brief: Oh, if you believe

Page 19387

1 this isn't a fake, well then it doesn't mean anything anyway. There's

2 nothing wrong about it. Well, you can't unring that bell. You can't

3 call this document a fake over and over and over again and ignore the key

4 evidence of a soldier, Danko Gojkovic, who recognised his handwriting and

5 said that this kind of document is the kind of thing he sent. I won't go

6 over all the evidence with you, how genuine this document is. It's

7 immense. We found another document in this collection that was by the

8 same typewriter, the same typewritten. So someone somehow faked two

9 documents, somehow placed them in the Drina Corps collection that we

10 ended up finding, or we faked it. I mean, it's absurd as a lot of their

11 Defence case is full of conspiracy theories and false allegations.

12 This document, this proposal is a significant contribution to the

13 murder operation to keep it secret, to keep it quiet, everything says

14 that, all the factors in this case lead to that conclusion.

15 Now, Butler, if you may recall, felt that the order to put them

16 indoors came from Savcic. However, the four proposals of Tolimir, this

17 is proposal number 3, so in any event, as Mr. Butler said, this document

18 is a joint effort of Tolimir and Savcic to hide those prisoners pursuant

19 to the murder operation.

20 All right. The second known contribution of General Tolimir on

21 the 13th or perhaps the 14th was when Tolimir, having remembered, if you

22 recall, going up to Bijeljina to prepare them for the 1.000 to 1200

23 prisoners, when Todorovic calls Tolimir and says: Where are these people

24 coming? He first told us he did this within about 24 hours of Tolimir

25 arranging it, and since Tolimir arranged it on the 12th that's about the

Page 19388

1 13th, maybe 48, so the 13th or the 14th. But it's absolutely clear,

2 Todorovic was clear as a bell, he calls Tolimir because the families of

3 people, Serbs relatives that are in custody desperately want prisoners so

4 that they can be exchanged. This is a huge issue that -- if you remember

5 that Todorovic's commander is worried about and so they call. You don't

6 make preparations for a thousand people and sit around for days wondering

7 when they're going to be there. So he calls Tolimir and he speaks to

8 Tolimir and Tolimir says:

9 "It's not going to happen. Drop all further preparations. This

10 idea has been given up on."

11 This means General Tolimir knows that those prisoners are no

12 longer going to the ICRC camp at Batkovic. He must know about the murder

13 operation. He has to know their fate by this time. And remember, when

14 Todorovic calls 13th, perhaps the 14th, he tried to stretch it on to the

15 15th, Tolimir clearly will have known about this before Todorovic called

16 because Tolimir was the one who was so personally involved in getting to

17 Batkovic, he has to be told and informed and involved in the decision not

18 to send them to Batkovic. And if you recall, the decision to send people

19 to Zvornik was made the afternoon/evening of the 13th of July. In fact,

20 the first group went up on the 13th of July to Zvornik. So there's no

21 way that by the evening, early evening of 13 of July when the VRS has

22 decided to send people to Zvornik to be executed, they have not told

23 General Tolimir. It was his job to get them to Batkovic, now they're

24 going to their death in Zvornik, he has to be told. So by the evening of

25 13 July there's no doubt now that General Tolimir is fully aware and

Page 19389

1 engaged, he's still in communications, he's still the top man of intel

2 and security. He's at Borike. They even have a line to Boksanica by the

3 14th of July.

4 So the next critical phase happens later that evening. First we

5 have the afternoon when the thousand show up. Surprise enough. By the

6 evening it's now, according to the VRS intercept and rough records 5- to

7 6.000 people in that area. Now, remember they started the killing on the

8 morning of the 13th of July at the Jadar River where they had an

9 execution squad and a bus load of people pulled away from the

10 transportation operation of the women deliberately to kill people along

11 the road. That kind of thing does not happen without the command's

12 involvement. And then later in the day around 5.00 or 5.30, they murder

13 a thousand people at the Kravica warehouse. And so by the time we have

14 the evening come around there's 6.000 people, 5- to 6.000 people that

15 need to be put indoors. People are dead at the Jadar River, they're

16 lying dead in the Kravica warehouse. Is Tolimir aware of this? Does he

17 know that thousands show up? Absolutely. Absolutely he does. We know

18 that.

19 And remember, they've tried killing people at Jadar, they've

20 tried killing people at -- or they have killed people, they've killed

21 people at Kravica, but now they have not 1500 to 2.000, they've got 6.000

22 people, and there's internationals going up and down that road. DutchBat

23 is still trying to get to Kladanj, ICRC, MSF, UNMOs, these people are in

24 Bratunac, these people are in Potocari, the world is focused on that

25 particular area. They've got 5.000 people. They've got this huge issue.

Page 19390

1 They've got to get them out of there. We see this. At this critical

2 juncture look at Deronjic again. Deronjic is trying to get the Milici

3 people to take these folks. Milici won't have anything to do with it.

4 Beara wants to keep them in Bratunac and kill them. There is a huge

5 fight between Deronjic and Beara on that point. Remember the intercept

6 between Karadzic and Deronjic, where Karadzic is saying get those people

7 out in warehouses outside. That's clearly the thousands that they're

8 talking about. And they finally decide as Beara sends Momir up to

9 Zvornik that they get them to Zvornik. Well, is Tolimir engaged in this

10 controversy, in this critical decision on how to best dispose of these

11 6.000 live people that they can't possibly murder in Bratunac? Of course

12 he is. He's been made aware of every other movement of prisoners, so of

13 course he is and we know absolutely. The Defence acknowledges this

14 because of the next document.

15 This is a document. I don't think you need to see it, but it's

16 late night, the 13th of July, and it's a document that as you recall

17 security officer from Rogatica Carkic said he took his dictation from

18 Tolimir. There's no way they could call that a fake. And it's Tolimir's

19 proposal to move 800 people from the Kasaba area down to Sjemec to do

20 farm work. Now, you heard from the logistics officer Radzulac [phoen].

21 There was no farm work to be done in that area at that time of year.

22 That was nonsense. That was Tolimir's internal covering himself and

23 covering him, which he did frequently. You'll see plenty of documents,

24 oh, there's the -- we'll get to the famous September document where he

25 criticises the VRS for not taking enough prisoners knowing all the

Page 19391

1 prisoners that were taken by the Drina Corps. He throws in the

2 Geneva Conventions when he doesn't mean it. Well, this was an internal

3 security designation to hide his true intention, basically move 800

4 people secretly down to Rogatica to try to relieve the burden off of

5 Zvornik and Bratunac and to enter into this. It's personally to Gvero,

6 so -- and remember Jadar River at this time, dead, Kravica, dead.

7 Probably a hundred people around the Vuk Karadzic school, dead, and who

8 is implementing this but Beara, Salapura, Jankovic, Popovic, all the

9 whole security branches.

10 So by the evening, late evening of 13 July when Tolimir

11 admittedly sends this document down, he is fully engaged. And this

12 document -- we're -- we -- I wouldn't be surprised if we found a mass

13 grave down there some day, but we do not have any evidence that this

14 proposal was taken up on. But that is planning. It's part of the

15 planning process, when senior officers make proposals to do people, to do

16 things, it's part of the planning, it's pursuant to the murder operation.

17 Whether the 800 are designed to be killed or not, he knows the rest are

18 going to be killed. And all the 800 were killed. But this is where it

19 gets absurd. Of course he knows and he's engaged and he's writing about

20 it and he's receiving information on it.

21 The Defence's explanation for this is that: Oh, this is just him

22 making his effort to give them adequate accommodations or some such

23 thing. I mean, you saw those awful Kravica -- worse than Kravica

24 warehouse-like buildings, barely good enough for animals, if that, and

25 that's exactly the kind of place people were stored and butchered.

Page 19392

1 Tolimir got intel from Carkic or the commander and was able to fill that

2 in. He says in his brief: Oh, no, it's not those places, it's the

3 houses along the road. 800 people are going to fit in those houses?

4 This is absurd. I'm surprised they even suggested as much.

5 All right. The next critical phase now that by the evening of

6 the 13th a decision's been made, everyone's going to Zvornik. The next

7 day is the first day for the Zepa attack. Tolimir is there. He's at

8 Borike, he's overseeing it. Now Krstic remembers commanding that attack,

9 so Tolimir is not an active combat commander, no one's ever said he was,

10 but he is there. What is one of the first things he does? Does it have

11 to do with Zepa? No, it's Srebrenica. Exhibit P124 is a document that

12 he sends out to the Drina Corps saying: We have received information

13 that unmanned aircraft are flying above the Srebrenica, Zepa, and Gorazde

14 enclaves. The next exhibit is P128, and he sends it to the

15 Bratunac Brigade, the Zvornik Brigade, all Drina Corps Brigades, and it's

16 an order to shoot down that unmanned aircraft that is recording.

17 Well, what's going on up there around Srebrenica on the morning

18 of the 14th that Tolimir would know about? Now, militarily the

19 Bratunac Brigade is going through the woods, mopping up, trying to find

20 any remaining Muslims. Is this going to be seen from the air? No. Men

21 running around in the woods like that. But what else is happening,

22 there's a huge convoy containing 5- 6.000 men that's gearing up and

23 driving off to Bratunac the morning of the 14th. Also the morning of the

24 14th they're finishing off people at the Kravica warehouse, bringing in

25 bulldozers, scraping the remains of the people up, and making a big pit

Page 19393

1 at Glogova. Also, you've seen yourself that that can be seen from the

2 air. And of course we know what goes on in Zvornik that day at Orahovac.

3 So Tolimir's order to shoot down this plane that is recording images over

4 the killing fields is a significant contribution to the murder operation.

5 He knows unquestionably that this is happening, and despite that this is

6 the first day of the attack he's still focused on Srebrenica. And this

7 is the tip of the iceberg. What other information he's getting?

8 Now, at this period of time which, just to remind you, our

9 critical point was the job of secretly executing and burying thousands of

10 prisoners as soon as possible 14 through 16 July. He issues the order to

11 shoot down the unmanned aircraft. We don't hear from him much after

12 that, but we know that Beara, Popovic, the whole, the security branch,

13 Salapura, are organising and implementing the murder operations in

14 Zvornik, Orahovac, at Petkovci during this time. And there is a

15 document, I won't put it up on the screen, it's an exhibit in the case

16 that shows all the security branch personnel at all the crime scenes

17 during these days, and Beara is leading it from the headquarters of the

18 Zvornik Brigade and is on the ground, Popovic is all over the place, as

19 are Nikolic and Trbic, Tolimir is leading it from Zepa.

20 The other thing I won't spend a lot of time on but on the 14th

21 Tolimir is within communications, and we know from the evidence that on

22 the -- earlier on the 14th of July, Salapura called the Zvornik Brigade

23 duty officer and left a message that Drago and Beara are to report to

24 Golic, that's got to be Drago Nikolic. We know who Beara is.

25 Pavle Golic is the intel officer at the Drina Corps in Vlasenica who is

Page 19394

1 co-ordinating communications of the murder operation. So there's no way

2 Salapura is passing on messages to Beara without Salapura being involved

3 in the murder operation. Clearly we know Beara and Drago are. And

4 information is being focused on Golic at the Drina Corps Brigade, which

5 in turn goes of course to the Main Staff, and Tolimir has access to the

6 Main Staff information at all times from where he is. That's been clear.

7 We spent a lot of time on that in the brief and you'll see the

8 communications show that.

9 Salapura says he doesn't remember this call but he doesn't

10 contest it. He suggests he received the information from Mladic but he

11 says it should have gone through the staff, meaning of course Tolimir.

12 On the evening of the 14th of July, the Zvornik Brigade receives

13 a call and a messages that Beara is to call 155. So the evening of all

14 these mass executions going on in Orahovac and Petkovci, there's a call

15 to call 155, and I'm sure you remember 155 is the line that is picked up

16 by the operations room in the Main Staff. This is a room that Tolimir is

17 imminently familiar with, can access from Borike, from Boksanica, from

18 Rogatica, from the forward command post at Krivace. He's also got

19 portable radios that he's called in. This is where the hub of

20 information now is and Beara is having to report, naturally. Beara is

21 the subordinate of Tolimir. Tolimir suggests merely that Beara is --

22 that he does not oversee Beara, that he does not command Beara. He just

23 says it with no backup. Completely disregards the testimony of Obradovic

24 and Milovanovic who clearly establish that as the top man of intel and

25 security Tolimir is the commander of his staff, Beara, Salapura, Jankovic

Page 19395

1 as the other assistant commanders are the commanders of their staff.

2 They are not military combat commanders but they are commanders, they

3 have the right to order, they're responsible for the work of those

4 people. They don't deal with that at all. Maybe we'll hear something

5 today about that. They make this bold conclusion, but then it's

6 completely contradicted by all the evidence.

7 All right. Number 6, the critical event that's now occurring

8 over the period of 14 and 15 July is that the job of executing 1500

9 prisoners in Pilica has been delayed. They've had to spend the nights of

10 14th and 15th in Pilica without men to execute them. Remember we have

11 Beara at the Zvornik Brigade calling Zivanovic first and then calling

12 Krstic and trying to get men that Mladic had ordered to come to the

13 execution sites. That's because they were able to kill the people at

14 Orahovac on the 14th. The night of the 15th they killed the people at

15 Petkovci. The day of the 15th they killed the people at Rocevic, at

16 Kozluk. But the 15th goes by with nobody of the 1500 men that are

17 rotting literally in the Pilica school and the Pilica dom. They are

18 going on their second night, the night of the 15th, in this squalor

19 unexecuted, and Beara is fit to be tied as you can tell by looking at

20 that. Why doesn't Beara call his commander, his boss, Tolimir? Well,

21 Tolimir is not a military commander, he does not control troops. Tolimir

22 can get on the line to Krstic or Mladic and say that the commander has

23 ordered you get it to them, but it's easier for Beara who's in the

24 Zvornik Brigade to go directly to the Drina Corps and get Zivanovic and

25 Krstic who are commanders who do have the right to control troops, that's

Page 19396

1 why he goes there. But of course Tolimir is going to be abreast of this.

2 Mladic is in Belgrade. This needs to be -- happen. Every day that 1500

3 men go without it being executed is a day longer that this thing could be

4 exposed. So this is a very, very difficult situation they are facing.

5 You remember that Pilica official comes down and complains to the

6 Zvornik Brigade. It's a mess. Who do they get to solve this problem?

7 The 10th Sabotage Detachment, controlled by the intel section, Salapura,

8 who's controlled by Tolimir. Of course Tolimir was -- gave his approval

9 for the 10th Sabotage, fully aware and in the know of it. Mladic is --

10 it's Mladic's unit, of course, but it's controlled and dealt with by

11 Tolimir. Mladic doesn't have time to deal with the units that he's

12 dealing with. Mladic is in Belgrade. Of course Tolimir was informed of

13 this. Something this major, this big a problem has to take precedence

14 for Tolimir, and the 10th Sabotage for his people, they get sent over and

15 they do the job on the 16th.

16 Also on the 16th the Main Staff orders the Drina Corps to

17 continue the murders at Pilica. Remember, we have an intercept, Cerovic,

18 probably the duty officer at the Drina Corps, says to Beara that Trkulja,

19 the Main Staff officer, I think, for artillery, Trkulja was just here and

20 wants triage to be -- and is passing on from above that triage needs to

21 be done on the prisoners in Pilica. Then we have the intercept where

22 Beara and Cerovic get on the phone and Cerovic is telling Beara this.

23 Beara says don't talk about it over the phone. So we have Trkulja coming

24 from the Main Staff on the 16th telling the Drina Corps to get -- make

25 sure those prisoners are killed.

Page 19397

1 Tolimir has full access to the Main Staff and the information,

2 and in fact I'm sure is co-ordinating it and the efforts of his

3 subordinates on the 16th. Later on in the evening Tolimir goes to

4 Crna Rijeka. We know this from Keserovic, and this is critical testimony

5 because Keserovic gave us a statement early on before really

6 understanding how it was going to be used. Tolimir is there, Mladic is

7 there, and according to Keserovic, Tolimir is advising him and talking

8 with Mladic about reducing Keserovic's task and going to command troops

9 for a sweep operation in Bratunac the next day. Well, what does that

10 mean?

11 The evening of 16 July, 7.000 Muslims are almost dead, I'm sure

12 hundreds are still dying of their wounds on the killing fields of

13 Branjevo and in the squalor of the Pilica dom, but there is Mladic and

14 Tolimir at Crna Rijeka, and Tolimir - there's no question - is briefing

15 Mladic on what's happening. Tolimir has to know what's gone on, he's got

16 the information from the Main Staff, the ops room, he's gotten from the

17 Drina Corps. He's briefing Mladic. It's a critical contribution to the

18 murder operation. He's also briefing Keserovic on how to deal with

19 Jankovic who he knows is in Bratunac. But very importantly, remember

20 Keserovic said to us: Oh, Tolimir told me Beara was in the Drina zone.

21 In the interview which is in evidence, Keserovic said Tolimir told us

22 Beara was at the Drina Corps headquarters. So Tolimir is not only

23 briefing Keserovic on what Jankovic is up to, he's briefing them on

24 Beara. The man that they won't even talk about. Another outrageous

25 point in the brief. Oh, Beara. We're not going to talk about Beara,

Page 19398

1 Naval Captain Beara, as if the fact that he's a naval captain means

2 something. Here is direct evidence that Tolimir is aware that Beara is

3 in the heart of darkness on the Vlasenica Brigade on the key night of the

4 16th when people are dead and dying all over Pilica. And they're

5 thinking about killing these poor MSF workers. I won't go through all

6 the detail on that.

7 But I refer to that. It's part 7 is the -- the job post-16 July,

8 what to do with the Muslim men in Bratunac and who should be executed and

9 who should not be. I'll merely remind you of the documents Jankovic

10 wrote explaining this problem, what do we do with the MSF and that

11 amazing and outrageous intercept where Djurdjic, the person who deals

12 with internationals, says to Jankovic over the phone, Well, are they

13 able-bodied? Well, yes. He goes, Well, you know what they procedure

14 was, you were in Bratunac the previous days, and they get into an

15 argument about it. And it ends with wait until Toso gets there. He's

16 the commander. He'll decide. It's about the third reference to Tolimir

17 being involved in this whole situation where MSF become involved. So

18 they're clearly going through Toso, Tolimir, for these issues.

19 This again is part of the planning even though thank God these

20 MSF workers were not killed, Tolimir was involved in the planning and in

21 the discussions on their fate and very smartly decides not to kill them

22 because it's his job to keep this thing secret. You go and kill 15 MSF

23 workers that were sitting with DutchBat and this organisation and ICRC, I

24 mean, it really makes things obvious. Tolimir had to put the lid on that

25 and I'm sure he did.

Page 19399

1 All right. Point 8, the job to receive, transport, and kill 30

2 or more Muslims captured in Serbia and return to Popovic on the 22nd/23rd

3 of July. You'll remember the documents and the material showing that

4 people tried to escape to Serbia and got grabbed and sent back. There

5 was Muslims that actually cut themselves to try to stay. They were given

6 through the Bratunac Brigade to Popovic, and on the 23rd of July Popovic

7 got the 10th Sabotage and murdered them. On the 22nd of July Popovic

8 does something unusual, it was stupid, insecure, he gets on an insecure

9 line and he calls Tolimir directly. The only reason he was stupid enough

10 to do this was because it was a family issue. He had a cousin that was

11 captured and he wanted to go directly to Tolimir to get the information.

12 But in that conversation he says, Oh, I'm doing work. Yeah, this is the

13 work he's doing. He's about ready to butcher 30 people and he's gone

14 over to the Zvornik Brigade that day, and I believe that's when he picks

15 up the Milici patients. So Popovic is a very busy guy and there's only

16 one thing he's doing and that's killing people. Tolimir tells him: Keep

17 up the work or something to that effect, Tolimir fully engaged with the

18 knowledge of this operation now. Knows precisely what Popovic is doing

19 and issues him the comment: Keep doing your work. This is another clear

20 contribution.

21 Number 9, the job to continue to hide and cover up the murder

22 operation and the continued murders. Those murders as they are charged

23 in the indictment are Nezuk, Snagovo. Those two are people that get

24 captured, just a small number, and they get shot by the soldiers that are

25 there. No real reason to believe that Tolimir is going to be aware of

Page 19400

1 that or in on those particular small-level murders, but that is a clear

2 indication that the murder operation, if they can get away with killing

3 people they will and they do. The evidence on Nezuk and Snagovo is

4 clear.

5 The Milici patients, some 10 to 15 seriously injured patients. I

6 bring them up because if you look at the documents and how they got

7 transferred from Milici to the Zvornik to the Zvornik Brigade to Popovic

8 on the 23rd, the Main Staff medical officer was involved in the approving

9 of that transfer. To murder seriously injured patients that had been

10 seen by two hospitals and are still alive on the 23rd is an outrageous

11 decision that could only have been made at the highest levels. Mladic

12 and Tolimir, they have to know about that.

13 The four Branjevo farm survivors, as you recall, the four folks

14 that were helped by the two Serb soldiers, given an apple and sandwich

15 and told where the front lines were. Then they were captured and

16 confessed that they were helped by these two Serbs. Well Drago Nikolic,

17 Vinko Popovic, General Tolimir prosecuted those two Serb soldiers for

18 helping the enemy, and they used the statements of those four guys to

19 prosecute them and punish them. And those four guys, we have their

20 names, have never been seen since. They got murdered. They're part of

21 the official record of that case. There's no way that happened. That

22 kind of thing does not happen without a green light given to it at the

23 highest level. I don't know if he knew about that in particular. But

24 it's just -- it's the kind of thing that his army was doing throughout

25 this time-period.

Page 19401

1 The Skorpions were a unit that were working with the MUP in

2 Trnovo. The MUP was under the command of the army. The MUP were working

3 with the MUP -- sorry, the Skorpions were working with -- it was

4 Borovcanin outfit, actually. They send Srebrenica victims all the way

5 across Bosnia and then they're murdered by the Serbian MUP unit who

6 happens to be working with the VRS and RS forces. There's no way you

7 send that many people across the country to be murdered by a foreign unit

8 or a unit from the Republika Krajina without the Main Staff knowing and

9 without Tolimir knowing. Mr. Elderkin will talk about Palic. People

10 were killed in the woods.

11 There's one document that's particularly disturbing. It's

12 P00755, it's a daily combat report of Rajko Kusic. And in that he

13 basically says: Today we liquidated several Muslims and from them we

14 learned the following, and then he gives their location and what they

15 were doing. They clearly captured people, got information from them, and

16 then murdered them, and then reported that up the chain to the

17 Drina Corps command. Talk about impunity. This kind of thing does not

18 happen unless it's part of the ongoing process of the Drina Corps and of

19 the Main Staff.

20 Now, that brings me to an end of my ten critical points. I could

21 talk about the other issues, the other factors involved, but I wanted to

22 be able to tell that to you in a compact form as it's been in my head all

23 these years. And as you go over this material and think about it and

24 understand it, please don't forget: This army is working, it's working

25 according to the chain of command. Tolimir is at its head, he's fully

Page 19402

1 engaged even from Zepa, he is involved.

2 Now, I think it's a good time to take a break. We'll get

3 Mr. Vanderpuye here. I hope to have just a few minutes at the end to

4 wrap this up or perhaps we can wait for the rebuttal which you have

5 kindly offered us, but if we could take the break now, Mr. President, it

6 would be great.

7 JUDGE FLUEGGE: Thank you very much, Mr. McCloskey. We will have

8 our first break now and resume with a submission by Mr. Vanderpuye after

9 the break at five minutes past 4.00. We adjourn.

10 --- Recess taken at 3.34 p.m.

11 --- On resuming at 4.07 p.m.

12 JUDGE FLUEGGE: Good afternoon, Mr. Vanderpuye. Welcome to the

13 courtroom. As we heard from Mr. McCloskey, it's now your turn to present

14 the views of the Prosecution. You have the floor.

15 MR. VANDERPUYE: Thank you very kindly, Mr. President, and good

16 afternoon to you, Your Honours. Good afternoon to you, Mr. Gajic and to

17 you, General Tolimir and everyone.

18 Your Honours, it's my privilege to appear before you today to

19 present part of the Prosecution's closing submissions in this very

20 serious and obviously historically important case. As the Chamber is

21 aware, the accused is charged with responsibility for the crimes alleged

22 in the indictment under Article 7(1) of the Tribunal's Statute and under

23 each mode of liability including joint criminal enterprise.

24 In his closing brief, aside from basically acknowledging his

25 position as the VRS Main Staff's assistant commander for security and

Page 19403

1 intelligence during the war, General Tolimir has acknowledged little

2 else. He has challenged essentially every material aspect of this case,

3 including the crime base evidence, ranging from the number of Srebrenica

4 dead and missing to the very nature of the Muslim population's removal

5 from the Srebrenica and Zepa enclaves.

6 It is clearly General Tolimir's right to put the Prosecution to

7 proof, and of course we recognise and accept that the burden of proof in

8 this case is ours alone. We are nevertheless confident that on the

9 record of these proceedings, General Tolimir's involvement and guilt in

10 the horrendous and unspeakable crimes charged in the indictment is proved

11 beyond any reasonable doubt.

12 Except to underscore and highlight some of the core issues

13 establishing General Tolimir's individual criminal responsibility and to

14 respond to specific assertions that are made in the Defence closing

15 brief, I will to the greatest extent possible try to refrain from

16 restating matters that are extensively addressed in the Prosecution's

17 final brief. Instead, I'll focus on two salient aspects of

18 General Tolimir's responsibility. First, following on from my colleague

19 Mr. McCloskey's submissions, I'll address the facts and circumstances

20 proving General Tolimir's significant contributions to the murder JCE by

21 means of his omissions. Second, I'll address the key facts proving the

22 JCE to forcibly transfer the Muslim populations of Srebrenica and Zepa

23 and General Tolimir's full participation in it.

24 General Tolimir's failure to protect the Muslim prisoners in VRS

25 custody following Srebrenica's fall was a serious violation of

Page 19404

1 international law, and there is no question about that. On the evidence

2 in this case, the fact of his failure is not complicated nor is it

3 particularly nuanced; to the contrary, it is stark, it is glaring, it is

4 unassailable, and it is undeniable. General Tolimir's omissions were no

5 less a significant contribution to the JCE to murder the men and boys of

6 Srebrenica than his positive conduct which you've just heard about. Like

7 his positive actions, the omissions were the product of a conscious

8 choice and demonstrate his commitment to achieving the criminal

9 objectives of the JCE, and for this reason they too give rise to his

10 responsibility under Article 7(1) of the Tribunal's Statute.

11 To be clear, indictment paragraph 29(D) alleges General Tolimir's

12 responsibility for failing to protect the Muslim prisoners and it

13 provides specifically that he had responsibility for the handling of all

14 of the Bosnian Muslim prisoners taken after the fall of the Srebrenica

15 enclave and to ensure their safety and welfare and he failed to do so.

16 Your Honours, the evidence in this case bears this out.

17 First, General Tolimir had a duty under customary international

18 law to ensure the humane treatment and protection of the Muslim prisoners

19 in VRS custody, especially those within the custody of the organs, units,

20 and officers over which or whom General Tolimir exercised control. As

21 explained in the Prosecution's closing brief under the

22 Geneva Convention III, all agents of a detaining power, in this case the

23 Republika Srpska, having custody of prisoners have a duty to ensure their

24 humane treatment, and that duty applies to individuals including those

25 with direct custody of prisoners and those individuals who supervise

Page 19405

1 them.

2 Given his position, there is no question that General Tolimir was

3 an agent of the detaining power. He was a member of the VRS, of the

4 Main Staff of the VRS, and the duty to protect applied to him.

5 Second, and equally clear, Tolimir supervised many of the

6 officers in whose custody the Muslim men and boys taken prisoner

7 following the collapse of the enclave -- Srebrenica enclave and then

8 later Zepa found themselves. These officers included Ljubisa Beara,

9 colonel, chief of the security administration of the Main Staff;

10 Dragomir Pecanac, who I'm sure you remember, was an intelligence officer

11 within General Tolimir's sector; Vujadin Popovic, who my colleague's just

12 referred to was the chief of security of the Drina Corps; Momir Nikolic,

13 the chief of intelligence and security of the Bratunac Brigade;

14 Drago Nikolic, the chief of security of the Zvornik Brigade;

15 Milorad Trbic, another security officer and Drago Nikolic's assistant in

16 the Zvornik Brigade; Zoran Carkic; as well as Bratunac Brigade MPs

17 including Mirko Jankovic; Zvornik Brigade MPs including Milomir

18 Jasikovac, and that's just to name a few.

19 That General Tolimir "commanded," and I say this in quotes,

20 "commanded" Ljubisa Beara, his immediate subordinate within the security

21 and intelligence sector who was a key figure in the planning and

22 implementation of the murder operation is amply established by the

23 evidence in this case, and it is not in doubt that General Tolimir

24 maintained professional control over the VRS military police and the

25 subordinate security organs which included officers having custody over

Page 19406

1 the Muslim prisoners.

2 It was General Tolimir's sector that was responsible for the

3 training and equipping and guiding subordinate security organs, sabotage

4 units including the 10th Sabotage Unit and the military police within the

5 VRS, and indeed it was his sector that was responsible for dealing with

6 prisoner issues such as their interrogation and their securing.

7 The legality and correctness of the work of a subordinate

8 security officers and organs were General Tolimir's exclusive

9 responsibility. You will find that in P1112, page 3, item 7.

10 A number of documents in evidence further establish

11 General Tolimir's active exercise of authority over subordinate security

12 organs, personnel, and the military police. These documents show, for

13 instance, his issuance of assignments and orders. An example is P2430

14 and that's a Main Staff document where he reports on the combat-readiness

15 and issues assignments to the 65th Regiment Protection military police.

16 There's another document which is P2141 in which he is enforcing a prior

17 order for subordinate units to submit names so that the Main Staff can

18 establish the 10th Sabotage Detachment. And other documents such as the

19 promulgation and dissemination of rules and guide-lines, in particular

20 concerning the treatment of prisoners. An example of that is P1970.

21 Remember that Tolimir's security and intelligence subordinates

22 and the military police were directly engaged in the events in Potocari,

23 in Bratunac, in Zvornik, and in fact they were involved in every single

24 phase of the murder operation. They had, without question, custody and

25 control over the prisoners at every stage. They detained them, they

Page 19407

1 secured them, they questioned them, they transported them, and in the end

2 they were the ultimate instrumentality of their extermination.

3 THE INTERPRETER: Interpreter's note: Could the counsel please

4 slow down a bit. Thank you.

5 JUDGE FLUEGGE: Mr. Vanderpuye, you heard the comment. Please

6 slow down a bit.

7 MR. VANDERPUYE: I'll do, Mr. President.

8 There is no real contest about whether General Tolimir was under

9 a duty to protect the Muslim prisoners, particularly as one in a

10 supervisory position over the VRS officers and units in whose custody the

11 prisoners were.

12 Similarly, General Tolimir's knowledge of the VRS custody of

13 these prisoners is not an issue. You'll recall, and I believe my

14 colleague has just reminded the Chamber, of a 12th July document in which

15 General Tolimir is directing that fleeing Muslims be arrested and

16 detained. You recall the document that my colleague referred to, I think

17 it was P122, 13 July document, referring to the thousand prisoners in

18 Dusan Nova Kasaba.

19 JUDGE FLUEGGE: May I interrupt you again. It's very difficult

20 to listen when we hear the sound of typing at the same time because of

21 the -- it's from the same table. Please continue.

22 MR. VANDERPUYE: Thank you, Mr. President.

23 Aside from the document which the Defence has disputed in their

24 brief, the testimony in the evidence of General Savcic who was with

25 General Tolimir on 13 July in the morning establishes that

Page 19408

1 General Tolimir was put on notice of the numbers of prisoners that were

2 surrendering at Dusan Nova Kasaba through a telephone call or a series of

3 telephone calls that General Savcic received from Zoran Malinic, the head

4 of the 65th Protection Military Police Battalion.

5 Further evidence of General Tolimir's knowledge of the numbers of

6 prisoners can be found in the 13 July document that he issued on the

7 evening of 13 July requesting or proposing that 800 prisoners be sent

8 down to the Sjemec farm in Rogatica.

9 He also communicated with Milenko Todorovic, the chief of

10 security of the East Bosnia Corps, advising him to prepare or take steps

11 to prepare the Batkovic prison camp to receive a thousand to 1300

12 prisoners. He knew that there were thousands of prisoners by 13 July in

13 VRS hands and he knew that they were going to be killed.

14 Leaving aside the ample evidence of his direct involvement in the

15 planning and implementation of these executions as my colleague has just

16 detailed, the evidence in this case leaves no room for the Defence's

17 fanciful suggestion that General Tolimir could not reasonably foresee the

18 prisoners' exposure to grave harm in VRS custody and at any point during

19 the ten-day period over which they were slaughtered. I say again "the

20 ten-day period" because we start on the 13th of July by the Jadar River

21 and we end up on the 23rd of July in Bisina. And in that time some 7.000

22 individuals were summarily executed with the involvement of the security

23 and intelligence sector and their subordinates. Given the pervasive and

24 sustained involvement of the security administration in perpetrating

25 these crimes, nothing short of an army-wide, and in fact nation-wide,

Page 19409

1 conspiracy to hide this information from General Tolimir could support

2 his claimed ignorance of the grossly criminal acts and conduct of his

3 immediate and professional subordinates throughout this unmitigated

4 bloodletting.

5 The serious mistreatment of Muslim prisoners in VRS custody was

6 rampant and it was known. The Chamber will recall the evidence of the

7 opportunistic killings in Bratunac and in Potocari. You saw the video

8 footage of the Kravica warehouse from 13 July with bodies strewn all over

9 the ground there.

10 The executions that happened -- those executions, rather,

11 happened within hours of General Tolimir sending his proposal to send 800

12 prisoners down to Rogatica. On 14 July bodies were being buried at

13 Glogova, as arranged by Tolimir's immediate subordinate Ljubisa Beara.

14 That day Beara and Popovic and Nikolic, all three security officers

15 together with the military police, organised and transported thousands of

16 Muslim prisoners to the Zvornik area, implementing their plan to

17 exterminate them.

18 You heard from Tanacko Tanic, he was a member of the

19 Zvornik Brigade command, and he told you that the murders up at Kozluk on

20 the 15th could be seen from across the Drina River. He also made this

21 key observations, and it's rather astute in its frankness. He says:

22 "These killings were taking place in populated areas. People saw

23 this, people had phones."

24 The VRS had phones too. They had radios, they had teleprinters,

25 they had couriers. This didn't happen in the Stone Age; it happened in

Page 19410

1 1995, and the suggestion that the highest intelligence officer in the

2 Main Staff of the VRS and the highest organ of the VRS was in the dark

3 because he wasn't physically at the locations where these crimes

4 occurred, at the locations where his colleagues were perpetrating these

5 crimes, crimes committed on an unprecedented scale, on an arrestive scale

6 in this war insults the intelligence. These were crimes that involved

7 his very subordinates from the battalion level to the brigade level to

8 the corps level and to the Main Staff level, virtually every level of the

9 VRS organisational structure under his direction. These are crimes that

10 could easily have jeopardised the Bosnian Serb war effort and they did

11 and they were crimes of a scale, as I say, in many ways unparalleled

12 throughout the war.

13 What the evidence proves in this case, Your Honours, beyond any

14 reasonable doubt is that with knowledge that thousands of Muslim men and

15 boys were in VRS custody, with knowledge that they were to be harmed, at

16 least harmed gravely, and in this case murdered, and with knowledge that

17 his own subordinates and others were directly and actively involved in

18 planning, organising, and executing their deaths in the most brutal and

19 systematic, sustained, and callous way, Tolimir failed absolutely to

20 ensure their protection.

21 These omissions directly and at least significantly contributed

22 to the success of the murder operation and ensured its successful

23 planning, it ensured its successful organisation, and ensured that it

24 could be carried out unimpeded and in fact professionally implemented and

25 run by members of the security and intelligence sector of which

Page 19411

1 General Tolimir was concededly in charge.

2 Tolimir had the material ability to act to protect these

3 prisoners. He was one of General Mladic's most trusted assistant

4 commanders. He was part of General Mladic's inner core, as he put it.

5 Not only as a senior officer and as a general, but as a security official

6 General Tolimir had a specific obligation under the VRS military

7 rules - and these are rules of the security service and the constitution

8 and laws of the Republika Srpska. I'm not going to go into too much

9 detail here because a lot of this is covered in the brief, but in essence

10 the rules of service for security officers applied in the VRS and

11 required General Tolimir to detect and prevent acts committed within the

12 VRS as well as those outside of them. I stress within the VRS because

13 these are the circumstances of this case. He was required to act in that

14 way with respect to any act carried out in the VRS which subverted the

15 constitutional order which is described in evidence in this case, and you

16 have it in this case, and concerns the guarantee of and protection of

17 human freedom and rights with respect to international standards. That's

18 what it says in Article 5. It ostensibly assured national equality and

19 protected the rights of ethnic groups, including Muslims. It ostensibly

20 provided for the inviolability of life and protection from cruel and

21 inhumane treatment.

22 His job, his core competency was to prevent the violation of

23 those guarantees. In that capacity, his responsibilities required him

24 under VRS rules - not international rules - VRS rules for him to

25 discover, prevent, report, arrest, and investigate the perpetrators and

Page 19412

1 the accomplices of crimes against humanity in international law including

2 those committed within the VRS, precisely the types of crimes that are

3 alleged here.

4 So the question is: What would have happened if General Tolimir

5 had done any of this before or during the course of the murder operation?

6 What would have happened if General Tolimir decided to act to actually

7 protect the prisoners? If he took an action to arrest the planners of

8 these crimes or the organisers of these crimes or the perpetrators of

9 these crimes? If he investigated the issues? If he reported them? If

10 he withdrew members of his sector and subordinates from participating in

11 the plan? I think the answer's pretty clear, and that is: There's no

12 way that these murders could have occurred and certainly not on the scale

13 in which they were perpetrated.

14 General Tolimir chose not to take an action for one reason and

15 one reason only and that is because he was a part of it and because he

16 intended to bring about the objectives of the joint criminal enterprise

17 to murder the Muslim men and boys of Srebrenica. It was his intention

18 through his omission to ensure that the murder operation was carried out

19 efficiently. It was his intention to ensure that the murder operation

20 was carried out undetected. It was his intention to simply make it

21 happen, to implement the commander's orders like he's supposed to do as

22 an assistant commander, and he did.

23 As a career JNA officer, General Tolimir knew perfectly well that

24 he had an obligation to ensure the humane treatment of prisoners, and

25 this was not only as a result of his training but also because that duty

Page 19413

1 was specifically codified in various army regulations. I will refer the

2 Chamber to P2482, Article 210 which says:

3 "Prisoners of war shall be treated humanely. In particular, they

4 must be protected against violence, insults, and intimidation."

5 Those are from the SFRY regulations on the application of the

6 rules of international law of war.

7 Protection from murder goes without saying. On the evidence in

8 this case the fact that the murders of thousands of prisoners in VRS

9 custody were planned, organised, and successfully implemented by members

10 of the VRS Main Staff and VRS officers immediately proximate to the

11 accused, whether his subordinates or not, and that General Tolimir chose

12 not to take any action to protect those prisoners in accordance with his

13 responsibilities under the VRS rules, the RS rules, the RS constitution,

14 and international law all speak to his intent to achieve the objectives

15 of those crimes.

16 Keep in mind that given his long-standing involvement in prisoner

17 exchange issues, his failure to act disregarded the VRS's own vested

18 interests because it deprived them of the ability to use these prisoners

19 for the purposes of exchange and for the purposes of extracting crucial

20 and important intelligence information. As plain as day, the evidence in

21 this case proves that General Tolimir's failure to act was deliberate, it

22 was intentional, and can only have been calculated to further the

23 criminal objectives of the murder JCE. They did that and he should be

24 held fully to account for it.

25 I would like to turn your attention if I could to the forcible

Page 19414

1 transfer JCE.

2 Notwithstanding the Defence's refusal to acknowledge that there

3 was a JCE to forcibly remove the Muslim populations of Srebrenica and

4 Zepa, the fact of its existence is proven beyond any reasonable doubt in

5 this case. Proof of General Tolimir's unrelenting and substantial

6 participation and contribution to this JCE is as clear as it is

7 overwhelming. While the indictment alleges that the forcible transfer

8 JCE began in March 1995, the underlying policy of the RS and VRS

9 leadership to rid the eastern -- rid Eastern Bosnia of its Muslim

10 inhabitants was in place much earlier, beginning with the implementation

11 of the six strategic objectives. Other compelling evidence in this case

12 establishes the criminal aims of the RS and VRS leadership to ethnically

13 cleanse Serb-claimed territory in Bosnia and Herzegovina, including the

14 eastern enclaves.

15 Remarkably the Defence argues that the six strategic objectives

16 were put forward, and I quote, "as a kind of action plan." This is at

17 paragraph 371 of the Defence closing brief.

18 The evidence in this case of course proves that at the 16th

19 Session of the RS National Assembly on 12 May 1992, these objectives were

20 laid out, they were discussed, and they were fully embraced. Although

21 their publication in the gazette in 1993 is anomalous, it is clear from

22 the number that is assigned to the publication, which is 02-130/92, that

23 the decision was taken in 1992, consistent with the declaration itself

24 which attributes that to the 12th May 1992 Assembly Session.

25 In any event, these war goals were clearly disseminated and

Page 19415

1 implemented by the VRS. In his evidence, General Novica Simic, who is

2 the commander of the East Bosnia Corps, recounted his 2nd September

3 meeting, 1992, with Generals Mladic, Gvero, and Presidents Karadzic and

4 Krajisnik, president of the RS National Assembly. At that meeting the

5 strategic objectives were discussed and he wrote them down in his war

6 diary. You have that evidence before you. You have his testimony at

7 P2756 and you have the diary at P2752.

8 The VRS Main Staff's 1992 analysis of combat-readiness, which is

9 P2880, also refers expressly to the implementation of the strategic

10 objectives. It talks about their progress, and this exposes of course

11 the fallacy of the Defence's arguments. The 1992 combat report states in

12 part:

13 "The strategic objectives of our war which were promptly defined

14 and set before the Main Staff of the army of Republika Srpska, the

15 commands and units, served as a general guide-line upon which we planned

16 the actual operations and concerted battles."

17 You'll find that in that exhibit, 2880, at page 159.

18 The Defence's assertions concerning the circumstances under which

19 the strategic objectives were decided fundamentally amount to nothing

20 more than an unfortunate attempt to distract from the real issues in this

21 case, those issues which unmistakably underpin General Tolimir's criminal

22 responsibility for the forcible transfer of tens of thousands of Bosnian

23 Muslims in 1995.

24 As noted in the Prosecution's brief, strategic objectives 1 and 3

25 culminated in the forcible transfer of the Muslim population of

Page 19416

1 Srebrenica and Zepa. Strategic objective 1 called for, and I quote, "to

2 establish state borders separating the Serbian people from the other two

3 ethnic communities."

4 As General Simic noted down in his diary in shorthand:

5 "Separation from the Muslims."

6 Strategic objective number 3:

7 "The elimination of the Drina River as a border between Serb

8 states."

9 This was implemented so as to remove the Muslim presence in

10 Eastern Bosnia. Again General Simic wrote this down:

11 "Drina River valley to Serbs."

12 The 16th Assembly Session minutes confirm that interpretation and

13 say:

14 "That the belt along the Drina must basically belong to the

15 Serbs."

16 In addition, recall that operational directives issued at the

17 Main Staff level were also implemented and in particular directive 4.

18 That was issued on the 19th of November, 1992, and was an important step

19 in the realisation of strategic objective number 3. Directive 4

20 expressed the RS leadership's policy of ethnic cleansing and put it in

21 motion, and this policy was pursued by the VRS in Eastern Bosnia right

22 through 1995.

23 General Tolimir and the security and intelligence sector under

24 his command had to have been involved in developing this directive which

25 required the expertise and input of each assistant commander. Directive

Page 19417

1 4 ordered the Drina Corps to:

2 "Force him," meaning the military, Bosnian Muslim military, "to

3 leave the Birac, Zepa, and Gorazde areas together with the ... Muslim

4 population."

5 Birac of course included Srebrenica. Given the gravity and the

6 manifest implications of this language, it hardly comes as a surprise

7 that a number of VRS officers have tried to explain it away. However,

8 the candid evidence of Colonel Milenko Lazic, who was a Drina Corps

9 operations and training officer who worked in the Main Staff from 1992 to

10 1993, puts things in perspective. Asked whether an objective of the VRS

11 was to separate the peoples of Bosnia and Herzegovina by their ethnicity,

12 he said this: You'll find this by the way at P2733, transcript lines are

13 21833 basically through to 21835. He says:

14 "I think the main objective of the VRS was to defend the Serb

15 population from the attacks coming from the other side. And if there was

16 no other solution available, then to separate ... us on ethnic

17 principles. And I believe that that was the understanding of every

18 individual member of the VRS."

19 If there was any ambiguity in directive 4's language,

20 Milenko Zivanovic, the commander of the Drina Corps, the one responsible

21 for implementing the tasks assigned to the Drina Corps under the

22 directive makes things even clear. In issuing order 2-126 on 24 November

23 1992 implementing the tasks of directive number 4, he ordered:

24 "Inflict on the enemy the highest possible losses, exhaust them,

25 break them up or force them to surrender."

Page 19418

1 And I'll add this. Significantly and unambiguously he says:

2 "Force the Muslim local population to abandon the area of Cerska,

3 Zepa, Srebrenica, and Gorazde."

4 Confronted with this language you'll remember the Defence's

5 so-called military expert. His explanation was:

6 "I honestly don't know why" Zivanovic "put this sentence in this

7 order in this manner."

8 I would submit to the Chamber that there is one very obvious

9 explanation and that is that the language reflects precisely what

10 General, at the time Colonel, Zivanovic meant and it reflects precisely

11 what directive 4 really called for, the separation along ethnic lines.

12 On 4 July 1994 we see the Bratunac Brigade's then-commander

13 Slavko Ognjenovic's report. He issued a report following

14 General Mladic's briefing regarding the Corps's combat-readiness. In his

15 report Ognjenovic says:

16 "We must attain our final goal - an entirely Serbian Podrinje.

17 The enclaves of Srebrenica, Zepa, and Gorazde must be defeated

18 militarily. We must continue to arm, train, discipline, and prepare the

19 RS army for the execution of this crucial task: The expulsion of Muslims

20 from the Srebrenica enclave. There will be no retreat when it comes to

21 the Srebrenica enclave. We must advance. The enemy's life has to be

22 made unbearable and their temporary stay in the enclave impossible so

23 that they leave the enclave en masse as soon as possible, realising that

24 they cannot survive there."

25 If the language about making life unbearable and not surviving

Page 19419

1 together with the rubric of disappearing and vanishing sounds familiar to

2 the Chamber it's because it is and you've heard it countless times in the

3 evidence of this case like a mantra. For instance, in August 1994 - and

4 this is at P2228, it's a videotaped conversation with General Mladic and

5 Milan Lesic who you recall was a Canadian supporter of the VRS and donor.

6 As Mladic and Lesic are in the car driving towards the Zepa enclave

7 you'll recall, Mladic says bluntly this:

8 "Here you see, the Turks had blocked up all this. Here is the

9 road to their village of Godjenje. Here is the village of Plane. It

10 used to be Turkish. Now we will go towards it. You film this freely,

11 you know, let our Serbs see what we have done to them, how we took care

12 of the Turks. In Podrinje we thrashed the Turks. If the Americans and

13 English, the Ukrainians and Canadians in Srebrenica - in the meantime

14 it's the Dutch - would not protect them, they would have disappeared from

15 this area long ago."

16 Significantly in March 1995, seven months later, the supreme

17 commander JCE member Radovan Karadzic issued directive number 7 and again

18 we hear the mantra: Make the Muslims' lives unbearable. Drive them out.

19 In assigning tasks to the Drina Corps directive 7 says:

20 "By planned and well thought out combat operations, create an

21 unbearable situation of total insecurity with no hope of further survival

22 or life for the inhabitants of Srebrenica and Zepa."

23 And we are not talking about the army here. We are talking about

24 regular people. We're talking about the whole of the Muslim population.

25 The directive continues and says that: Relevant state and military

Page 19420

1 organs responsible for work with UNPROFOR and humanitarian organisations

2 shall through the planned and unobtrusively restrictive issuing of

3 permits, reduce and limit the logistics support of UNPROFOR to the

4 enclaves and the supply of material resources to the Muslim population,

5 making them dependent on our good will while at the same time avoiding

6 condemnation by the international community and international public

7 opinion.

8 Astonishingly, or really perhaps not so astonishingly, the

9 Defence claims that directive 7 was never implemented. They cite the

10 fact that humanitarian aid convoys continued to come into the enclaves in

11 support of this. However, indeed that was the point. The point was to

12 strangle enclaves, allowing only so much in as would avoid international

13 condemnation while at the same time bringing the populations in the

14 enclaves to the breaking point. Obviously a complete cessation of aid

15 into the enclaves would have assured international condemnation, it would

16 have brought immediate action, and it would have defeated the directive's

17 objective and exposed the pernicious plan behind it.

18 In the end I suppose the Defence is left with no choice but to

19 deny directive 7's implementation because it is nefarious - and that is

20 clear on its face - and because the Main Staff had a direct involvement

21 in its drafting, development, and implementation of which General Tolimir

22 and his sector would have been a part. This would only crystallise the

23 Main Staff and General Tolimir's participation in the realisation of the

24 criminal objectives of directive 7.

25 Again, Drina Corps commander Milenko Zivanovic dispels the

Page 19421

1 Defence's vacuous contention that in fact detective 7 was replaced or

2 superseded by detective 7/1 issued by General Mladic.

3 In the Krivaja 95 attack order General Zivanovic specifically

4 noted, and this is why the way P1202, he specifically noted that it was

5 issued:

6 "Pursuant to operations directive number 7 and 7/1 of the

7 Main Staff of the VRS."

8 He took on the task of splitting apart the enclaves of Srebrenica

9 and Zepa and then reducing them to their urban areas. Obviously the

10 reduction of the enclaves to their urban areas would all but guarantee a

11 humanitarian disaster, forcing the surrounding civilian population into

12 the concentrated urban areas of Srebrenica and Zepa would clearly have

13 made life for the Muslim population unbearable and it did.

14 Let me add that this order was not a secret. It was copied to

15 the Main Staff and it was specifically approved by General Mladic.

16 You'll see his signature recorded on the attack map and his approval of

17 it. Given General Tolimir's crucial importance to Mladic and the

18 Main Staff's decision-making and his involvement in the development of

19 directive 7, Tolimir was fully informed of Krivaja 1995 including the

20 operations. I'll talk about that a little bit more specifically in just

21 a few minutes.

22 There is no plausible debate about whether directive 7 was in

23 fact implemented on the evidence of this case. The evidence proves that

24 it was carried out in fact on its terms as calculated to create the

25 conditions to force the Muslim population from Srebrenica and Zepa, which

Page 19422

1 contrary to the Defence position at paragraph 411 of their brief, the

2 Bosnian Serb leadership clearly viewed as strategic.

3 President Karadzic's speech at the 53rd National Assembly on 28

4 August 1995 crystallises this issue. And he says this:

5 "We absolutely cannot let ourselves get any ideas about them

6 taking our traditional territories from us. To tell you the truth, there

7 are towns that we have grabbed for ourselves and there are only 30

8 per cent of us. I can name as many of those as you want, but we cannot

9 give us the towns where we made up 70 per cent. Don't let this get

10 around, but remember how many of us there were in Bratunac, how many in

11 Srebrenica, how many in Visegrad, how many in Rogatica, how many in

12 Vlasenica, in Zvornik, et cetera. Due to strategic importance, they had

13 to become ours and no one is practically questioning it anymore."

14 Tolimir was in attendance at this Assembly session and even

15 addressed the Assembly. You have that in evidence at P2435. That there

16 was a joint criminal enterprise to remove by force the Muslim populations

17 of Srebrenica and Zepa is as certain in this case as the resultant crimes

18 that you've seen. The Defence seems to argue in essence that the

19 populations of Zepa and Srebrenica were not forcibly removed, but they

20 left the enclave rather on their own accord or pursuant to an agreement.

21 The evidence in this case presents precisely the opposite

22 conclusion. I will not go into that much detail here either because I

23 think it's quite well addressed in the Prosecution's closing brief. But

24 the trial record is replete with evidence establishing that there was a

25 forcible transfer and deportation of the Muslims in Srebrenica and Zepa

Page 19423

1 as well as the foreseeable crimes that occurred. I'm sure that the

2 Chamber recalls the ample evidence of the shelling of civilian targets in

3 the lead up to the attack on Srebrenica. You've heard from UNMOs, you've

4 heard from victims, survivors, you've heard from other internationals

5 such as DutchBat. You will recall, I'm sure, the terror attack that was

6 carried out by the 10th Sabotage Detachment on 23 June 1995. The

7 evidence of the relentless destruction of humanitarian -- a restriction,

8 rather, of humanitarian convoys into the enclaves, the evidence of

9 starvation and desperation within the Srebrenica population prior to the

10 enclave's collapse, the fear and desperation of the Muslim population

11 fleeing Srebrenica into Potocari from their homes and nearby villages as

12 they were terrorised by Bosnian Serb forces, the deplorable and

13 deteriorating conditions in Potocari which the crowd endured, a crowd of

14 more than 20.000, 30.000 Muslim refugees, they endured for days prior to

15 their expulsion from the enclaves. During that time on top of it, they

16 were subjected to sniping attacks by VRS units. You will find that

17 evidence in P598, transcript lines 2440 through 41 and transcript page

18 2486. I'm certain that the Chamber has not forgotten the video footage

19 showing the despair and the fear on the faces of the women and children;

20 and the men, the husbands, the brothers, the fathers, that were

21 systematically torn away from as their families loaded onto waiting

22 vehicles and kicked out of their homes.

23 The Chamber, I'm sure, will recall the video footage of the

24 events in Zepa where a virtual repeat of these events took place, where

25 the population was shelled and forced into the hills and then forced back

Page 19424

1 into the town and booted out on trucks and on buses, shipped off to

2 Muslim-held areas. Or they were forced to flee on foot into Serbia, into

3 the hands of the Serbian MUP in order to seek protection while

4 Colonel Beara was arranging for them to be shot at as they crossed the

5 Drina River in rafts, makeshift rafts, and you'll see that in the

6 evidence, in the intercept evidence in this case, from August 2nd.

7 The suggestion, as the Defence has advanced in this trial, that

8 the populations of Srebrenica and Zepa left the enclaves on their own

9 accord flies in the face of history, it flies in the face of reason, and

10 it flies in the face of the overwhelming evidence, the overwhelming

11 credible evidence in this case. Remember General Mladic's monologue at

12 the Hotel Fontana when he said to Nesib Mandzic, a school teacher who was

13 selected to meet with Mladic about the status of Muslim refugees in

14 Potocari, and this is Exhibit P1008 which is the Prosecution's trial

15 video, he says to Nesib Mandzic:

16 "Have I made myself clear? Nesib, the future of your people is

17 in your hands, not only in this territory" and he says "I am finished."

18 "Bring the people who can secure the surrender of weapons and

19 save your people from destruction."

20 He says:

21 "I need to have a clear position of the representatives of your

22 people on whether you want to survive, stay, or vanish."

23 You will find this at P1008, transcript reference page 47 through

24 48.

25 Before General Mladic had his answer, because they adjourned that

Page 19425

1 meeting to the next day, 10.00 a.m., 12 July, before he had his answer

2 about whether or not that Muslim population wanted to stay, to survive,

3 or to vanish, those buses were already rolling. Before the 10.00 a.m.

4 meeting on the 12th when he repeated the mantra and as he says:

5 "As I told this gentleman last night, you can survive or you can

6 disappear," those buses were already on the ground rolling. They were

7 already on their way to take those Muslims out of the enclave.

8 At 12.50 on the 12th of July General Mladic was intercepted

9 saying this:

10 "They've all capitulated and surrendered and we'll evacuate them

11 all, those who want to and those who don't want to."

12 General Tolimir was one of Mladic's closest advisors. He was in

13 the inner core, as General Mladic said. He was part of the

14 decision-making process of the Main Staff and he was involved and active

15 in it. Is there really any doubt that he knew what the plan was?

16 Here's what he says on the 13th of July, this is General Tolimir.

17 We know that he's assigned to oversee the situation in Zepa as one of the

18 Main Staff generals, and he reported the ultimatum that he delivered to

19 the Zepa Muslims. He said:

20 "We made a condition that all necessary consultations be

21 completed by 1500 hours and that the 'evacuation' had to start at that

22 time. We have conditioned this with alternative solution -- with an

23 alternative solution - military force."

24 Hamdija Torlak, who you've heard from, recalled it this way. He

25 says at transcript line 4292 -- or rather page 4292:

Page 19426

1 "General Tolimir told us something along these lines: Srebrenica

2 has fallen and now it's Zepa's turn. We can go about it two ways. What

3 I'm offering is for all of you," meaning the entire Muslim population,

4 "to leave Zepa, to be 'evacuated,' get on the buses and leave."

5 Then he said there was nothing else to talk about. There was no

6 negotiation. There was no agreement. And even if there were, the

7 Tribunal's case law is clear in that that would not constitute a defence

8 because whether or not somebody is forcibly transferred is something that

9 has to be evaluated on an individual basis. Some government

10 representative can't go in there and agree for someone else to be

11 transferred. And our law is clear on this issue.

12 There was no legitimate evacuation of the population, either of

13 Srebrenica and Zepa. There was no combat going on and there was no need

14 for those people to be evacuated. In fact, the law is clear that you

15 cannot create the condition of exigency and then turn around and rely on

16 it as a basis to commit another act. You can't create the crisis and

17 then claim the crisis is the excuse to remove the population. That's

18 clear too. You've heard evidence about the so-called 17 July declaration

19 concerning the removal of the Muslim population, the one that was signed,

20 it was signed by Franken, it was signed by Mandzic, and it was signed by

21 Jankovic, who you've heard of course is General Tolimir's subordinate.

22 In that declaration it claims:

23 "No incidents were provoked by any side during the evacuation and

24 the Serbian side observed all the regulations of the Geneva Conventions

25 and the international law of war."

Page 19427

1 You will recall the testimony of DutchBat officer Robert Franken

2 who explained to you how this was pure "nonsense." He explained that he

3 signed the declaration with the reservation as concerns the UN

4 observation or escort of vehicles or people from the enclave. He said he

5 signed it because Jankovic, General Tolimir's subordinate, represented to

6 him or certainly gave him the impression that it was a condition in order

7 to get the wounded or evacuate the wounded.

8 You'll also recall the testimony of PW-71 with respect to this

9 declaration. The evidence concerning the 24 July agreement on

10 disarmament of the able-bodied population in Zepa was no different. You

11 heard Hamdija Torlak who told you unequivocally:

12 "As far as our choices went, well, we didn't have any."

13 UNPROFOR commander General Smith assessed the situation like

14 this:

15 "Let me be quite clear," he said, "the situation that the people

16 wished to be evacuated from resulted from the collapse of the defence of

17 the enclave and the presence of the Bosnian Serb army amongst them.

18 "It was reported to me that you," meaning General Tolimir,

19 "amongst others were in Zepa, that you and others were armed, and that

20 you were telling the population to leave."

21 This is at transcript page 11670.

22 Edward Joseph testified in this case and he talked about speaking

23 with the victims during the events and he was told, this is at

24 Exhibit P1949, transcript line 14184, he was told this -- he asked

25 whether somebody was leaving why the people were leaving, and he was

Page 19428

1 told:

2 "No, I'm not leaving of my own free will. I want to stay but who

3 will protect me?"

4 Someone else told him:

5 "There is very ample" -- or rather, he testified that:

6 "It was very ample and evident to us that these women were going

7 out and leaving their homes under duress."

8 General Tolimir was a key participant in the forcible transfer

9 JCE and the evidence overwhelmingly proves that his contributions were

10 not just at least significant, but they were substantial.

11 Tolimir contributed personally and through the use of his sector

12 and personnel to the VRS' relentless and ruthless implementation of

13 directive 7's plan to bring the enclaves to their knees, to make life

14 intolerable for the Muslim inhabitants, and ultimately to drive them out.

15 The VRS engaged in terror attacks against Srebrenica in which Tolimir's

16 sector played a vital part. I mentioned earlier the 23 June 1995 attack

17 on the enclave. Tolimir's subordinates planned that operation. As my

18 colleague mentioned, Colonel Salapura was involved in that planning,

19 Vujadin Popovic was involved in that planning, Pavle Golic an

20 intelligence officer with the Drina Corps, he was involved in that

21 planning too, together with 10th Sabotage Detachment Commander

22 Milorad Pelemis.

23 Colonel Salapura testified that he didn't believe that

24 General Tolimir was around at the time because had he been, he said,

25 General Mladic's order to engage the 10th Sabotage Unit in the operation

Page 19429

1 would have been passed from General Mladic via General Tolimir to

2 Colonel Salapura. Unfortunately, that testimony was not as helpful to

3 General Tolimir as Colonel Salapura probably hoped, because as it turns

4 out General Tolimir was around on 23 June 1995. President Karadzic's

5 appointment diary puts him at a meeting with Mladic, Petar Skrbic, who of

6 course you've heard from, and Karadzic at Pale some 40 kilometres from

7 Crna Rijeka at 1345 to 1500 hours on 23 July. You'll find that at P2198,

8 the ERN reference there would be the ERN ending 5399.

9 He's also caught in an intercepted communication together with

10 General Mladic. That intercept, contrary to the Defence's challenge to

11 the reliability, the accuracy, and the authenticity of the intercept

12 collection, is on tape and you've got it. It's P779.

13 Indeed, it would have been General Tolimir to approve of

14 Colonel Salapura's proposal to use the 10th Sabotage Unit in that attack

15 and it would have been General Tolimir who passed on General Mladic's

16 approval or the order implementing the engagement of that unit.

17 General Tolimir was a major player in the VRS' restriction of

18 humanitarian aid convoys and also the military convoys. You will no

19 doubt recall seeing his signature and initials all over convoy requests

20 and related documents. General Mladic consulted with General Tolimir and

21 General Gvero on these important issues. You will recall the testimony

22 of numerous Prosecution witnesses who described the humanitarian

23 conditions inside Srebrenica and Zepa, the effect of the restrictions of

24 these convoys, from survivors to internationals. I won't go into that.

25 These are all set out in the Prosecution's brief. You will remember the

Page 19430

1 testimony of Slavko Kralj, the VRS Main Staff colonel, who initially

2 sought to minimise General Tolimir's role in dealing with convoy issues.

3 He had to concede when confronted with his prior testimony that indeed

4 General Tolimir indeed had the authority to approve convoys second to

5 General Milovanovic.

6 Colonel Kralj testified that General Tolimir was "best versed" of

7 all the Main Staff generals in respect of the procedures to be

8 implemented regarding convoys. And as much as he tried to tone down

9 General Tolimir's involvement in this process, in the decision-making

10 process, tell-tale elements of his principal involvement in this emerged

11 and they underscore the significance of his contributions.

12 The Main Staff civil affairs department with respect to convoys

13 acted on information it received from the "intelligence services" to deal

14 with convoy requests. You may recall this, and I don't expect you to,

15 but you may recall that I confronted Colonel Kralj about that reference

16 to intelligence services. What did you mean by that? And he went round

17 and round in circles trying to explain a way that that had anything to do

18 with General Tolimir.

19 Fundamentally, how could it not? General Tolimir, after all, was

20 the top intelligence and security officer in the VRS. Anything to do

21 with intelligence fell within his jurisdiction. Anything to do with

22 security fell within his jurisdiction. That information that was relied

23 on by the civil affairs department of the VRS was also furnished on a

24 regular basis monitoring the aid that was going into the enclaves.

25 So the Main Staff decision-making apparatus knew precisely what

Page 19431

1 was going in and what wasn't going in. They knew precisely the extent to

2 which they were cutting off the life-line of the Muslim populations

3 inside those enclaves, and that's the civilian population. They knew

4 this and they were monitoring.

5 If you take a look at D209 you'll see exactly what I'm talking

6 about and you'll see in that document that there's evidence that they had

7 information about how much flour and oil and salt were going into the

8 enclaves. They had precise details about what was going in, so they knew

9 exactly what they were doing. The result of these restrictions on

10 DutchBat you've heard, and you've heard lots of evidence about what

11 effect that had and how it rendered them utterly incapable of carrying

12 out their mandate to defend the enclaves. Tolimir was a part of all of

13 that.

14 General Tolimir also played a significant role in the lead-up to

15 the attack on Srebrenica. You'll recall how he persistently misled and

16 stalled and outright lied to UNPROFOR commanders about VRS intentions

17 going in. In a July 9 communication, General Tolimir tells

18 General Krstic:

19 "I replied to the UNPROFOR commander that I was checking the

20 information about the situation in Srebrenica and that their forces were

21 safe. I anticipate talking to them in 40 minutes. Send a battle-field

22 situation report every hour so that I can communicate with UNPROFOR which

23 will enable you to continue to work according to plan."

24 You'll recall the evidence of General Nicolai and others who

25 dealt with General Tolimir as this plan was being executed.

Page 19432

1 Remember that it was General Tolimir who passed on the 9 July

2 approval of President Karadzic for the VRS to go into Srebrenica and take

3 the town, which precipitated its fall on 11 July 1995 and the further

4 displacement of thousands of Muslims.

5 I would also like to remind the Chamber that throughout the

6 meetings of the Hotel Fontana and the expulsion of the Muslim population

7 from Potocari on 12 and 13 July, Tolimir's subordinates were on the

8 ground and they were engaged. His immediate subordinates were there, his

9 professional subordinates were there, and they were actively involved in

10 the forcible transfer of the civilian population.

11 THE INTERPRETER: Kindly slow down, please. Thank you.

12 MR. VANDERPUYE: Radoslav Jankovic was there, Vujadin Popovic was

13 there, Momir Nikolic was there, Svetozar Kosoric were there, in addition

14 the Drina Corps MPs were involved as were Bratunac Brigade MPs.

15 He directed them and he controlled them as he always did.

16 Remember Tolimir was "exclusively responsible" for the correctness and

17 legality for their work and that is the work of subordinate security

18 organs, P1112.

19 Of course he had to be and he was well informed of what they were

20 doing. From 13 July on, Tolimir oversaw the removal of the Zepa

21 population. As I mentioned earlier, he delivered the ultimatum to the

22 Zepa Muslims, the threat of force, which the VRS of course backed up upon

23 the Muslims' refusal to capitulate. He was directly involved in VRS

24 efforts to neutralise UNPROFOR, to facilitate the take-down of the

25 enclave, and the Chamber will recall the 14 July report to the Main Staff

Page 19433

1 and General Krstic in which General Tolimir reports on the VRS having

2 taken full control of check-point 2 at Boksanica, and he says:

3 "We plan to direct the work of other UN check-points through this

4 check-point."

5 He says:

6 "All check-points have received the task to remain at their

7 current locations even after the VRS units have passed and to report to

8 us on the activities of the Muslims."

9 In charge of the operation to remove the Zepa population, Tolimir

10 personally directed the operation until the last of them, that is, the

11 population, Muslim population, had been expelled. He even personally

12 removed men from a convoy who were then transferred to Rogatica prison

13 and personally escorted the last convoy of the day on 25th July.

14 Tolimir's contribution to the forcible transfer operation is clear, it is

15 palpable, and it was substantial. The intensity of that contribution is

16 matched to no lesser extent by his intent to use any and all force

17 necessary to achieve its objectives. And Mr. McCloskey referred the

18 Chamber to the 21 July proposal, the one proposing the use of chemical

19 means.

20 And what that document shows, Your Honours, is that

21 General Tolimir was prepared to use whatever force and whatever means

22 necessary to achieve the objectives to which he had been assigned to

23 carry out, and that is the removal of the Muslim population from Zepa.

24 There is no doubt that the intent of that document was to use that force

25 against the civilian populations, which has been attested to by

Page 19434

1 Colonel Obradovic and by General Savcic.

2 At paragraph 358 of General Tolimir's brief he says, and I quote:

3 "His role cannot be viewed in the context of events which took

4 place at two not very large locations."

5 And he's right. His role has to be viewed in terms of who he was

6 to and in the Main Staff. It has to be viewed in terms of his

7 involvement in Srebrenica and Zepa at the strategic level, the level of

8 conception, of planning, of organisation, and of execution. It has to be

9 viewed in the context of his favoured and influential position as a

10 trusted member of General Mladic's inner core, and it has to be viewed in

11 the context of his recognition and respect among the political leadership

12 of the Republika Srpska. Viewed in this context, there's no doubt that

13 he knew as well as anyone what the long-term goals were. He knew as well

14 as anyone what the policies were. And he knew as well as anyone how the

15 RS leadership and the VRS intended to reach those goals. He had to know

16 in order to do his job and he had to know to be able to counsel and ably

17 advise General Mladic, and he had to know in order to ensure the security

18 of VRS operations.

19 But the evidence in this case is much more than about what he

20 knew. It's also about what he did and what he failed to do and what he

21 intended. The evidence in this case proves all of this. Tolimir was as

22 invested as General Mladic, Radovan Karadzic, Vujadin Popovic,

23 Ljubisa Beara, Krstic, and others in achieving the Bosnian Serb war goals

24 through manifestly criminal means. Tolimir was a key to the

25 decision-making process of the VRS Main Staff. He personally

Page 19435

1 participated and contributed to the forcible transfer. He oversaw and

2 controlled his sector's involvement and the involvement of his

3 subordinates both immediate and professional in the operation and in

4 planning and implementing the conditions that brought misery and

5 suffering to thousands of Bosnian Muslims.

6 Your Honours, General Tolimir needs to be held to account for

7 what he's done. Thank you for your indulgence. That concludes my

8 submissions.

9 JUDGE FLUEGGE: Thank you very much, Mr. Vanderpuye. There are

10 15 minutes left. I see that Mr. Elderkin has already entered the

11 courtroom. Would it be a wise proposal to have the second break now and

12 that you, Mr. Elderkin, resume the last part of the session today with

13 your submission?

14 MR. ELDERKIN: Good afternoon, Mr. President, Your Honours. I

15 think that would be preferable. I have around half an hour, as does

16 Ms. Hasan, and I think my presentation would be cut in half if we took

17 the break at the usual time.

18 JUDGE FLUEGGE: Then we adjourn now for the second break and I

19 think you and Ms. Hasan should be aware of the wish of Mr. McCloskey to

20 have ten minutes left at the end of today's hearing.

21 We adjourn and we resume I would say ten minutes before 6.00.

22 --- Recess taken at 5.22 p.m.

23 --- On resuming at 5.52 p.m.

24 JUDGE FLUEGGE: Yes, Mr. Elderkin, welcome to the courtroom. You

25 have the floor for your submission.

Page 19436

1 MR. ELDERKIN: Thank you, Mr. President, Your Honours.

2 In this section of the closing arguments, I'm going to address

3 opportunistic killings and the foreseeable targeted killings charged at

4 paragraphs 22 and 23.1 of the indictment. My main focus today is to

5 address Tolimir's liability for these killings because they were the

6 natural and foreseeable consequences of the joint criminal enterprise to

7 forcibly remove and deport the Muslim population from Srebrenica and

8 Zepa, in other words, a so-called JCE 3 crimes.

9 However, Tolimir is also charged with all forms of Article 7(1)

10 responsibility for these crimes under Counts 1, 3, 4, 5, and 6 of the

11 indictment. As explained in detail in the Prosecution's final brief and

12 as I'll reiterate today, the evidence of Tolimir's and his security and

13 intelligence subordinates' involvement in the capture, detention, and

14 disappearance of the Zepa leaders, and of Avdo Palic in particular, is

15 compelling and he should be found guilty for those killings. He should

16 be found guilty not just as the killings were the foreseeable

17 consequences of the forcible removal JCE but because Tolimir authorised

18 and approved the commission of those crimes as well as failed to protect

19 these men who he and his subordinates had taken into custody.

20 Looking first at the Srebrenica-related opportunistic killings,

21 there is no need for me to repeat all of the evidence establishing that

22 the killings took place; that's set out in the Prosecution's final brief.

23 However, I will make a few remarks on some of those incidents.

24 First, indictment paragraph 22.1(a) concerns the killing of nine

25 Bosnian Muslim men who were found by DutchBat soldiers in a field some

Page 19437

1 distance behind the white house in Potocari. This is discussed at

2 paragraph 381 of the Prosecution brief. The Dutch eye-witnesses

3 identified those victims who were found lined up by a stream with

4 gun-shot wounds in their backs as Bosnian Muslims. In 2006 and 2007,

5 human remains were exhumed from the meadow where the bodies were seen and

6 these remains have been identified as Bosnian Muslim men reported missing

7 mostly either from Potocari or from nearby. This evidence can be found

8 in Exhibit P167 at pages 348 to 351 in e-court; also, the victims can be

9 cross-referenced to the list of persons reported missing and dead after

10 the take-over of the Srebrenica enclave, and that's Exhibit P1777.

11 Second, indictment subparagraph 22.2 charges opportunistic

12 killings in and around Bratunac when captured Srebrenica Muslims were

13 taken there for temporary detention prior to the move up to the Zvornik

14 area. The evidence of these killings is described at paragraphs 383 to

15 396 of the Prosecution brief. Notably there is support from at least one

16 Bosnian Serb witness, PW-64, as well as Muslim survivors about killings

17 in Bratunac. Those killings were taking place, of course, during the

18 period when Tolimir's deputy or chief of security of the Main Staff

19 Colonel Beara was in Bratunac busily making arrangements for those Muslim

20 men to be transported north to the sites of mass execution.

21 For the other opportunistic killing incidents charged, the

22 relevant evidence is set out in the same part of the Prosecution's final

23 brief, other than the killings at Petkovci school which are described at

24 paragraphs 650, 651, and 656 of the brief.

25 The opportunistic killings all took place in the days following

Page 19438

1 the VRS's take-over of the Srebrenica enclave. The reason why they are

2 charged as JCE foreseeable crimes, unlike the thousand of other killings

3 of Bosnian Muslim males that took place after the attack on Srebrenica,

4 is that they were not highly organised in the same way as the massive and

5 complex operation which was supervised in particular by Beara and other

6 of Tolimir's security and intelligence officer subordinates. Rather,

7 they are killings like the one that happened in the centre of Srebrenica

8 town where Your Honours may remember on the trial video seeing a man's

9 body in a pool of blood, corresponding to Drazen Erdemovic's testimony

10 that he saw one of his 10th Sabotage Detachment colleagues slit a man's

11 throat near the central mosque. We can see this now on screen, that's

12 from Exhibit P2799 at e-court page 43.

13 If the opportunistic killings weren't organised and managed in

14 the same careful way as the other massive scale killings in the murder

15 operation, you may ask how Tolimir can be found liable for them. Indeed,

16 this kind of question is raised in Tolimir's own final trial brief, where

17 he dismisses JCE 3 as "just convict everybody."

18 Of course JCE as a form of responsibility does not equate to

19 "just convict everybody," but it is worth reminding Your Honours what it

20 does take to convict a JCE member of crimes which go beyond the common

21 shared goals. Simply put, what is required to find a JCE member guilty

22 of a crime beyond the scope of the JCE is to find that the member chose

23 to take part in serious criminal activity knowing that fellow members

24 might commit additional crimes in the execution of the shared criminal

25 enterprise. If Tolimir willingly took that risk, as he surely did, as

Page 19439

1 evidenced most simply by the fact of his continued participation in the

2 forcible removal JCE, then he should be convicted of such additional

3 crimes as occurred. JCE 3 crimes must be the natural and foreseeable

4 consequences of carrying out the JCE. The Appeals Chamber has ruled that

5 foreseeable here means that:

6 "The possibility a crime could be committed is sufficiently

7 substantial as to be foreseeable to an accused."

8 That's from a 25th of June 2009 decision in the Karadzic case.

9 So the threshold is whether an accused could foresee that additional

10 crimes not were probable but at least were possible.

11 Applying this analysis to the charged opportunistic killings,

12 what the evidence in this case shows is that Tolimir and indeed anyone

13 else who would have been in such a high level, highly informed position

14 within the VRS and with an interest in the consequences of operations

15 such as the attack and ethnic cleansing of Srebrenica could foresee the

16 possibility of fatal violence occurring. As heard throughout the trial,

17 retaliatory violence between the warring parties had occurred in and

18 around Srebrenica since 1992; furthermore, violence towards the

19 Srebrenica Muslims was clearly foreseeable as part of the policy to

20 ethnically cleanse areas claimed as Bosnian Serb land, including the

21 Drina River valley, and generally it was foreseeable in light of the

22 brutal history of the war. There can be no suggestion that Tolimir

23 lacked knowledge of the historical build-up, hatred, and policy of ethnic

24 cleansing that existed prior to July 1995. More specifically, the

25 evidence demonstrates that Tolimir knew that murderous violence went hand

Page 19440

1 in hand with ethnic cleansing operations.

2 I'm now going to turn from the Srebrenica opportunistic killings

3 to the foreseeable targeted killings of three of Zepa's religious,

4 political, and military leaders, Mehmed Hajric, Amir Imamovic, and

5 Avdo Palic. These men were taken into VRS custody while Tolimir oversaw

6 the final stages of the removal of Zepa's civilian population in July of

7 1995. To emphasize how closely Tolimir was engaged with the fate of

8 these men in the course of the forcible removal operation, UNPROFOR

9 officer Tom Dibb saw Tolimir having Mehmed Hajric seized as the last

10 buses were leaving from Boksanica on the 27th of July. Meanwhile, Avdo

11 Palic had accompanied Tolimir as he led convoys of Muslims away from

12 their homes to the confrontation line at Kladanj.

13 JUDGE FLUEGGE: Mr. Elderkin, like your predecessors, you should

14 slow down a bit. It's very difficult for the court reporter and the

15 interpreters. Please carry on.

16 MR. ELDERKIN: Palic was seen with Tolimir in the centre of Zepa

17 on the 25th of July 1995. We can see another image taken from the stills

18 book Exhibit P2799 at e-court page 163, showing Tolimir shaking hands

19 with Palic in Zepa town on that day. And in fact that is the last known

20 image that we have of Palic still alive, shaking hands with a man who

21 clearly had power over his life or death.

22 In terms of responsibility for Palic's fate in particular, it

23 would not be much of an exaggerates to say that Tolimir practically

24 chained Palic up himself. Shortly after Palic was taken into custody,

25 Tolimir was sending out intelligence reports based on information he had

Page 19441

1 obtained from Palic. Thereafter, Palic, whom the VRS considered to be a

2 war criminal based on his involvement at the beginning of the war in an

3 attack on a JNA convoy going up to Zlovrh mountain, Palic never had the

4 hope of fair, humane, or legal treatment or any hope to see his wife and

5 daughters again. Avdo Palic's last moments together with his family were

6 movingly recounted to the Trial Chamber when Esma Palic herself came to

7 testify. Avdo Palic was subsequently imprisoned at Rogatica Brigade

8 security officer Zoran Carkic's apartment. Carkic then consulted with

9 Beara in mid-August and Palic was moved at night to the secret

10 Vaneko Mlin military prison in Bijeljina before being moved, again at

11 night, in secret, in early September 1995, by Main Staff intelligence

12 officer Dragomir Pecanac to a destination unknown. You'll recall

13 Pecanac's account of taking Palic to hand him over in a car park in

14 Han Pijesak in the middle of the night to an air force general,

15 Jovo Maric, who, to fit well with Pecanac's story, died shortly after the

16 war.

17 But only after the East Bosnia Corps guards at that secret prison

18 called the VRS Main Staff duty officer and received confirmation that

19 Pecanac was acting on behalf of the Main Staff's sector for intelligence

20 and security would they hand Palic over to Pecanac.

21 Throughout those weeks of detention by the VRS security

22 administration, Palic was not even referred to by name but by the

23 code-name Atlantida, which we first saw in the 30th of July, 1995,

24 document sent by Carkic on Tolimir's authorisation. That detailed how

25 Atlantida was being kept safe and at a location away from the other Zepa

Page 19442

1 Muslim detainees. That's Exhibit P1434.

2 All of this evidence underscores the bare minimum conclusion that

3 Tolimir could foresee the possibility that Palic might be killed.

4 Tolimir knew of Palic's incarceration at the hands of men under his

5 command and authority who only days before had been running the greatest

6 murder operation in Europe since the Second World War. Given that

7 Tolimir commanded and supervised those men who captured, detained, and

8 then made Palic disappear, it seems almost trite to say it, but there can

9 be no doubt that Tolimir foresaw that Palic might not or would not stay

10 alive.

11 Given the evidence, however, the Trial Chamber should not only

12 convict Tolimir for the Zepa leaders' killings based on his JCE 3

13 liability, but also based on his acts and omissions recounted here and in

14 the Prosecution final brief under the other charged forms of Article 7(1)

15 liability.

16 Those other forms of liability aside, to further emphasize the

17 degree to which Tolimir could foresee the possible harm that might befall

18 not only Palic but also Hajric and Imamovic, I would ask you to remember

19 the words of General Mladic when he is seen on the trial video boarding

20 bus after bus carrying the Muslim population out of Zepa. Mladic is

21 being filmed and his words are clearly more for the camera than for the

22 poor Muslims being driven from their homes. But as we can see on screen

23 now, Exhibit P2798, this is a still shot from the trial video, you may

24 remember that to one group Mladic says:

25 "No more forgiveness. Now I am giving you your life as a gift."

Page 19443

1 The VRS Main Staff leadership, particularly General Mladic of

2 course, and also General Tolimir, was in charge of all decisions

3 concerning the fate of the Zepa population, including having the power of

4 life and death over the Muslims who passed through their hands. Tolimir,

5 based on his background dealing with prisoner issues throughout the war,

6 being informed about all key military events, and in the instance of the

7 Zepa operation being actually involved and in charge on the ground, knew

8 that particular Zepa Muslims including the leadership were at serious

9 risk in the event that they were taken into military custody during the

10 forcible removal operation. For Hajric, Imamovic, and Palic, they were

11 not spared, not given their lives as a gift, but instead were captured,

12 detained, and murdered before being dumped in the remote grave at

13 Vragolovi, where their remains were recovered only after many years.

14 I have referred in passing to the fact that Hajric, Imamovic, and

15 Palic were not the only Zepa Muslims taken into custody by the VRS under

16 Tolimir's and his subordinates' supervision. Over 40 other men,

17 including Hamdija Torlak, another member of the Zepa leadership, were

18 taken into custody and held in Rogatica at the same location as Hajric

19 and Imamovic. All of those men were forced out of Zepa with the rest of

20 the population in July 1995 but they only left VRS custody in a

21 post-Dayton prisoner hand-over in January 1996. During the period while

22 Hajric, Imamovic, and Palic were in custody and then disappeared, not

23 only were other victims of the Zepa forcible removal operation being held

24 in Rogatica, but the VRS was making great efforts to bring back the Zepa

25 Muslims who had fled across the Drina River to Serbia. In addition,

Page 19444

1 there was ongoing work to destroy public buildings and private homes in

2 Zepa to deny the Muslims any possibility of return there. This is all

3 also detailed in the Prosecution's final brief. What this shows is that

4 the VRS's efforts to conclude the ethnic cleansing of Zepa continued

5 after the last buses left Zepa town at the end of July 1995 and those

6 efforts were ongoing at the time when the three leaders were detained and

7 when they later disappeared. Accordingly, their murders undoubtedly

8 occurred as the forcible removal JCE members sought to complete their

9 work in cleansing Zepa of its Muslim population.

10 Now I'd like to address some points that Tolimir has made

11 concerning the Zepa killings in his final trial brief. At paragraph 478

12 Tolimir writes, I quote:

13 "The basic questions regarding these alleged killings are the

14 following: Who carried out these killings and under what circumstances

15 and could Tolimir have reasonably foreseen them? Tolimir is not charged

16 with participating in these killings."

17 In response to the first point, it is not necessary to establish

18 the particular identities of the killers, provided there is evidence

19 beyond reasonable doubt that the Zepa Muslim leaders were murdered, which

20 is shown by the circumstances of their disappearance and the result of

21 the exhumation at the Vragolovi grave-site. The relevant forensic

22 evidence is cited at paragraph 475 of the Prosecution's final brief. As

23 for the circumstances of their disappearance, this is covered at

24 paragraph 478.

25 In response to the second point that "Tolimir is not charged with

Page 19445

1 participating in these killings," as I said when I began, Tolimir

2 absolutely is charged with all forms of Article 7(1) responsibility for

3 these crimes, not just within the JCE framework. Again, I would remind

4 Your Honours, as you have heard from Mr. Vanderpuye, that Tolimir had a

5 duty to protect detainees and this applied to the Zepa leaders as much as

6 to the men and boys captured after the fall of Srebrenica. Tolimir not

7 only failed in this duty, but his actions through his subordinates,

8 including Beara, Pecanac, and Carkic directly contributed to the deaths

9 of Hajric, Imamovic, and Palic.

10 Turning back to Tolimir's final brief, he goes on to give an

11 account of the custody of Hajric, Imamovic, and Palic and at paragraphs

12 482 to 486 he describes the supposedly correct treatment of these

13 prisoners before concluding as follows, I quote:

14 "Considering that Mehmed Hajric and Amir Imamovic were

15 accommodated in an adequate holding centre, treated as prisoners of war,

16 registered by the International Committee of the Red Cross, and allowed

17 to send letters to their families, their alleged murder cannot be

18 considered reasonably foreseeable. Tolimir's instructions contained in

19 this document," Exhibit P1434, "provide additional confirmation that

20 Tolimir took an interest in the correct treatment of the prisoners of war

21 from Zepa."

22 Furthermore, at paragraph 495 of his brief Tolimir notes,

23 starting of quote:

24 "Tolimir had already left for the for the Grahovo and Glamoc

25 front on the 30 July 1995."

Page 19446

1 As I emphasized when talking about the opportunistic killings,

2 the question of foreseeability is indeed central to the analysis of

3 Tolimir's liability for these killings pursuant to JCE 3. Therefore, it

4 is important to look at the point Tolimir has made here, which is

5 essentially that the conditions in which Hajric and Imamovic were held,

6 the fact that they were registered with the Red Cross and that they were

7 able to send messages to their families meant that the possibility they

8 might be killed was not foreseeable to Tolimir, who departed to another

9 part of the country at the end of July. In fact, the evidence received

10 by the Trial Chamber points to the opposite conclusion, that Tolimir knew

11 of the possibility that prisoners who appeared to be treated correctly

12 were in fact at risk and his departure to Grahovo and Glamoc did not

13 entail that he no longer knew what was going on in Eastern Bosnia.

14 I've already discussed the extent to which Avdo Palic's killing

15 was foreseeable to Tolimir. For Hajric and Imamovic, in general the

16 foreseeability of their killings is covered in the Prosecution final

17 brief. Specifically with regard to Tolimir's comments about Hajric and

18 Imamovic's killings not being foreseeable because these victims were, to

19 his knowledge, correctly treated and registered with the ICRC, that

20 registration was a fig leaf to enable Tolimir and the VRS to claim that

21 they treated prisoners in accordance with their duties under

22 international law. The reality, as heard in the evidence, for example,

23 of Meho Dzebo and Hamdija Torlak, is that the conditions at the Rogatica

24 prison were appalling. Not only were conditions appalling, but the

25 evidence clearly shows that Tolimir's security and intelligence

Page 19447

1 subordinates, including VRS Drina Corps security chief Vujadin Popovic,

2 those subordinates operated a system to facilitate the mistreatment and

3 murder of prisoners in pure contempt of the ICRC's efforts to register

4 them. I refer Your Honours to Popovic's 20th of September, 1995,

5 instructions to cover up incidents where prisoners held by the VRS were

6 killed in custody, that's Exhibit P2257 and also discussed at paragraphs

7 481 to 484 of the Prosecution's final brief. Clearly in accordance with

8 these instructions from Popovic, the ICRC visitors to the Rogatica prison

9 were told at the end of October 1995 that three of the men they had

10 registered at the prison in July had "escaped since the last ICRC visit."

11 Two of those three supposed "escapees" were Hajric and Imamovic and that

12 ICRC report is Exhibit P2253.

13 As further evidence that the registration or record keeping of

14 captives did not preclude the possibility that they might be killed, I

15 would also remind Your Honours of the fate of the Milici patients.

16 Records were kept of those men during their hospital treatment, but they

17 were nevertheless handed over to Vujadin Popovic and subsequently

18 murdered. Indeed, the hand-over of the Milici patients to Popovic took

19 place only shortly after Tolimir spoke to him on the 22nd of July and

20 told Popovic to, I quote, "do your job."

21 The story of the Milici patients reinforces the only reasonable

22 conclusion, which is that in the circumstances after the Srebrenica

23 murder operation Tolimir could foresee the possibility that even Muslims

24 who had been registered or documented, whether by the ICRC or anyone else

25 might be killed.

Page 19448

1 As for Tolimir's departure to Grahovo and Glamoc on the 30th of

2 July, being on the western front did not stop Tolimir, the assistant

3 commander for intelligence and security, from keeping fully informed

4 about matters in the east of the country. Just one example is Tolimir's

5 3rd of September, 1995, communication to various VRS intelligence and

6 security subordinates. That's Exhibit P2250 which deals in particular

7 with prisoner-related matters, including the situation concerning

8 prisoners in Eastern Bosnia.

9 I would like to end my presentation by reminding Your Honours of

10 what we know of the final fate of Hajric, Imamovic, and Palic. For

11 Hajric and Imamovic they were held in a prison cell known to the other

12 prisoners in Rogatica as the infamous room. Meho Dzebo testified that

13 they called it the infamous room because, I quote:

14 "Because 90 per cent of the time that someone spent there, there

15 was torture, beatings. One could hear cries, screams, cries for help and

16 so son."

17 Survivors from the infamous room confirmed to Dzebo that Hajric

18 and Imamovic as well as another man, Mujo Hodzic whose remains were also

19 found in the Vragolovi grave were among those regularly beaten. Sometime

20 in August 1995 Hajric and Imamovic were taken away in the night.

21 Meanwhile, we know that Palic was held in secret and separately.

22 He was also finally taken away in the night in early September 1995 by a

23 man, Dragomir Pecanac, who worked for Tolimir and whom Your Honours have

24 seen here in this courtroom. We don't have evidence about Palic's

25 treatment during his detention, but we do have evidence from his grave,

Page 19449

1 the same as for Hajric and Imamovic. All three men were shot. The

2 conclusion for the autopsy of Avdo Palic's remains reads in part, I

3 quote:

4 "The death was violent and it was caused directly due to the head

5 injury. The fractures of the temple bone from the side of the upper jaw,

6 ribs 5, 6, and 7 from the right side and 2, 3, 4, 6, 9 from the left side

7 were caused by projectiles discharged from fire-arms."

8 That's Exhibit P186.

9 Your Honours, these three unfortunate men did not meet easy

10 deaths nor did those men killed opportunistically following the fall of

11 Srebrenica. They should be done justice, just as justice must be done

12 for the thousands of other victims of the crimes charged in this case.

13 That finishes my part of the presentation, Your Honour, and I

14 think Ms. Hasan is following on.

15 JUDGE FLUEGGE: Thank you very much, Mr. Elderkin.

16 Welcome to the courtroom, Ms. Hasan. You have the floor now, but

17 please be aware that Mr. McCloskey wants to have some minutes left at the

18 end of today's hearing. You have the floor.

19 MS. HASAN: Thank you, Mr. President. Good evening to you. Good

20 evening, Your Honours, and to everyone else.

21 It is difficult, Your Honours, to speak about the impact of what

22 happened in Srebrenica and Zepa in 1995. It is difficult to speak about

23 the impact of events that have disgraced humanity. But I will try. The

24 expulsion of the population of Srebrenica and Zepa as well as the

25 separation and murders of thousands of Srebrenica men and boys

Page 19450

1 irreparably destroyed the Bosnian Muslims of Eastern Bosnia. What

2 remains are charred fragments of the population struggling for their

3 existence until today. The society that remains in the aftermath of the

4 events of July 1995 inflicted on them by the murderous criminal

5 enterprise is a society in despair, a society that at once clings on to

6 the past and is horrified to face the future, a society that has lost its

7 leadership and its identity. Over the course of this trial you have

8 received and heard evidence about the men who had to endure the painful

9 separation from their families and the uncertainty that followed from not

10 knowing what would happen to their loved ones and what their captors had

11 in store for them. Their uncertainty was transformed to fear as they

12 were forced to abandon their identification documents and personal

13 belongings in Potocari, Sandici, and at other detention sites. Their

14 captors' choice to detain them in the most deplorable and dehumanising

15 conditions, to deprive them of their rights as human beings, their

16 captors' choice to mistreat them converted their fear to sheer terror.

17 These men endured terrifying moments as they were taken on buses and

18 trucks, in some instances blindfolded and handcuffed to preselected

19 execution sites. Over 7.000 men and boys endured this incomprehensible

20 horror and pain before they faced a violent and merciless death.

21 Few men survived these horrendous slaughters and some of them

22 have had the courage to sit here before you and to relate to you their

23 ghastly experiences. It was not that long ago that a miracle, PW-21, was

24 in our presence, a boy who against all odds emerged alive from the mass

25 execution at Orahovac. He witnessed the unfathomable, the murders of

Page 19451

1 hundreds of men surrounding him, including his own father. Other

2 fortunate survivors have told you how they narrowly escaped their deaths.

3 You may recall, for example, PW-18 who after being severely beaten and

4 shot, after witnessing his relatives' executions, found the strength

5 somewhere in him and played dead on the hills of Nezuk as blood spewed

6 from his mouth. This was the state he was in when he escaped execution.

7 Remember PW-15, he took cover under a mass of people who had been

8 executed before his eyes in Petkovci. These men suffered physical

9 injuries and immense mental anguish. All of them, those that were killed

10 and those that escaped, endured profound horror at the hands of the joint

11 criminal enterprise.

12 After being uprooted from their homes, their land, their

13 surroundings, and all that was familiar to them, the Bosnian Muslim women

14 of Eastern Bosnia were made to endure the intense heartache as they were

15 torn from their relatives in Potocari before being expelled to Kladanj.

16 These final separations caused stress and anxiety amongst the women upon

17 their arrival in Bosnian territory and continue to traumatise them some

18 16 years later. Your Honours, you have received the accounts of a number

19 of Srebrenica widows and victim relatives, and I refer you to their

20 statements, but I wish here now to give them a voice so that you hear a

21 few of their words in this courtroom. The impact of the separations was

22 described by Razija Pasagic, who said, and I quote:

23 "The experience of being separated from my husband, my brother,

24 and my friends was very difficult. I lived, but actually my life does

25 not exist, or can we say my life goes on but I do not exist."

Page 19452

1 The murders of the men was a monumental step towards the

2 destruction of the women and children. For years the Bosnian Muslim

3 women of Eastern Bosnia have lived in perpetual uncertainty and turmoil

4 wondering what happened to their loved ones, burdened and tormented by

5 thoughts of how their loved ones died, where they died, whether they were

6 tortured, whether they were hungry. You have heard compelling evidence

7 about the Srebrenica syndrome and the psychological trauma experienced by

8 these women. Teufika Ibrahimefendic from the Vive Zene organisation has

9 described to you the symptoms these women have suffered from, amongst

10 them terrible nightmares, feelings of fear, nervousness, and

11 aggressiveness. Their will to live was extinguished. These women suffer

12 from pronounced guilt, many wishing they would have died.

13 Hanifa Hafizovic, and you have also received her statement which is

14 Exhibit P1522, has said:

15 "You can't go against God, but if God showed me mercy tomorrow

16 and I died I would be happy."

17 Other women engage in self-destructive behaviours. And in

18 addition to their mental suffering, many of these women suffer

19 physically.

20 With the advent of DNA matching, the women and children began

21 learning about the fate of the missing men after many, many years, but

22 they were not freed from the shackles of their misery when they received

23 this information, the confirmation that their loved ones were in fact

24 dead, that only body parts remained, and that in many cases only few body

25 parts were found, that these body parts were spewed in mass graves at

Page 19453

1 locations unknown to them. The reburial operation denied these women of

2 a decent burial in accordance with their religious and ethnic customs.

3 This also aggravating their mental suffering.

4 It is difficult, Your Honours, to speak of any long-term recovery

5 for these women, even for those we have heard who have received

6 treatment. Their condition is still extremely grave and today the

7 condition of some of them has even worsened. The Srebrenica syndrome

8 still plagues many women and families, as not all reported missing men

9 have been identified. Innumerable women and families still live without

10 knowing. Some perhaps will never know. Recall Mirsada Malagic, her

11 father-in-law, Omer Malagic, was only buried some three years ago. Her

12 husband and her middle son were recently buried in 2010. We know that

13 the mortal remains of her son Admir Malagic were located in the secondary

14 mass grave you are now familiar with, Cancari road 6, primarily

15 associated with the Branjevo farm executions. The remains of her husband

16 Salko Malagic were found at Cancari road 10, also associated with the

17 Branjevo farm executions. Her father-in-law was recovered from the

18 secondary mass grave at Cancari road 3, associated with the Kozluk

19 executions. Her eldest son, Elvir Malagic, who was 19 years old in July

20 of 1995, remains missing. Elvir would have been 36 today.

21 Time has stopped for Mirsada Malagic. She still waits, like

22 thousands of others suffering, uncertain about the fate of her son. Many

23 women have hoped against hope, like Samila Salcinovic whose evidence you

24 have also received. She doesn't want to remarry because she hopes that

25 her husband will appear. Her statement can be found at Exhibit P1524.

Page 19454

1 The story of Mirsada Malagic, Samila Salcinovic, and all the other

2 Srebrenica widows the Prosecution has presented to you are just a handful

3 of the thousands of tragic stories of other families of the enclaves of

4 Eastern Bosnia, families that have been dismembered and dispossessed.

5 We have heard evidence that cohesive family units no longer

6 exist. We have heard how those who once led social lives now isolate

7 themselves and have developed fear and distrust of groups. We have

8 learned that these survivors do not find any solace in numbers.

9 Nura Efendic, a Srebrenica widow who not only lost her husband but also

10 her two sons, said that the fact that she was not the -- tells herself

11 that she's not the only one in this situation. Knowing that, she says,

12 "there are thousands of us" is of no consolation to her.

13 General Tolimir, a core member of the VRS, of the highest echelon

14 of the VRS, and who lived and worked in the region, was intimately aware

15 of the importance of the men in the traditional patriarchal societal

16 structure of the Bosnian Muslims in Eastern Bosnia. By killing two or

17 three generations of these men from Srebrenica, the Bosnian Serb forces

18 and Tolimir knew and intended the catastrophic consequences the killings

19 would have on the entire group. Eliminating the pillars of that society,

20 the men and the leaders, guaranteed the collapse of the surviving

21 members.

22 As a result, certain family names are disappearing. The family

23 name of Hanifa Hafizovic, for example, will disappear as 18 male members

24 of her family went missing after the fall of Srebrenica. There are no

25 men left to carry that family name forward.

Page 19455

1 The grief and trauma of these women resulting from the killing of

2 the men was compounded by their expulsion. They have not been able to

3 re-establish their lives. The evidence shows that a lot of these

4 families led reasonably prosperous lives before the war under the

5 guidance and protection and leadership of their husbands and fathers.

6 Witness Rahima Malkic, as she put it, had "a nice life." She lived with

7 her children and husband, worked their land, they owned sheep, cows, a

8 horse, had chickens. They owned one house and were even constructing

9 another house. But after having been uprooted from their homes in July

10 of 1995 and having lost the male members of their family, life changed.

11 And now they struggle to make ends meet.

12 The vast majority of these women have not been able to reclaim

13 their lives to find employment to support their families, and have been

14 forced to live in makeshift accommodation for many years.

15 Samila Salcinovic, a newlywed at the time of the fall of Srebrenica, lost

16 nine male members of her family, including her husband. She found

17 herself a refugee. She could not find a job and grows vegetables on a

18 small piece of land, lives with no running water, and relies -- in her

19 home, and relies on a well for water, but that well drys up in the

20 summer.

21 The Bosnian Muslim women of Eastern Bosnia have suffered

22 profoundly from the difficulties they have faced from taking on the

23 responsibilities that used to be fulfilled by the men in that society.

24 These men -- these women used to rely on their men who were more educated

25 to take care of official family business and to financially support them.

Page 19456

1 The members of the criminal enterprise were fully cognizant that by

2 killing the men they were going to profoundly disrupt the foundations of

3 this group as a whole.

4 The physical destruction of the homes and the sacred places in

5 Srebrenica and Zepa described in the Prosecution's brief at paragraphs

6 470 to 473 in relation to Zepa at paragraph 377 -- sorry, that's

7 paragraph 377 is in relation to Srebrenica, as well as the killing of the

8 men and the physical and mental suffering resulting from the killing of

9 the men and the expulsion of the women has prevented those who survived

10 from returning home. You may recall Mirsada Malagic's response when she

11 was asked why she would not go back to her home. She said:

12 "It's impossible to live there." She explained, and I quote:

13 "Anyone who survives Srebrenica, who survived the war, who went

14 through everything that I went through, believe me, cannot live there."

15 Rahima Malkic, who you did not hear testify but whose evidence

16 was admitted, asked:

17 "How can I go back there when half my family is not there?"

18 Her husband and two sons went missing after the fall of

19 Srebrenica, and so she asks:

20 "How can I rebuild my house? I don't have any men who could help

21 me."

22 The women feel they cannot return to their homes alone and in

23 most cases they don't have any homes to return to. Nothing remained in

24 Zepa. Their homes were burnt down. There are no factories or jobs left

25 to return to. Many of Zepa's inhabitants have resettled in other parts

Page 19457

1 of the world, as the conditions in Zepa as testified by Esma Palic were

2 "not fit for life."

3 Nor do the Bosnian Muslim youth of Eastern Bosnia want to return.

4 They dream of leaving Bosnia all together. And let us not forget those

5 Bosnian Muslim youth of Eastern Bosnia, those that survived face

6 significant hurdles suffering from adjustment problems such as low levels

7 of concentration, nightmares, flashbacks, fears, and behavioural

8 problems. Those who have lost their fathers, their uncles, their

9 grandfathers, lack male role models which has affected their transition

10 to adulthood, their families, and their sense of identity. What is sure

11 is that the impact of this murderous operation will be significant for

12 them for years to come.

13 The impact of the ethnic cleansing on the population of

14 Srebrenica and Zepa as well as the separation and cold murders of the men

15 has caused incalculable suffering and damage to the tens of thousands of

16 living survivors who have been condemned to a lifetime of physical and

17 mental suffering. The impact on the group as a whole has been

18 catastrophic. And this end result was purposeful. It was intended that

19 there be no hope for further survival or life for the inhabitants of

20 Srebrenica and Zepa.

21 I have tried, Your Honours, to capture the pervasive and stifling

22 impact on the individuals and the Bosnian Muslims of Eastern Bosnia as a

23 whole, but it is perhaps best to leave you with the words of

24 Amer Malagic, a relative of Srebrenica victims, who has said:

25 "Imagine what this has done to our families, and it is worse."

Page 19458

1 This, Your Honours, is the impact of the death of more than 7.000

2 Bosnian Muslim men of Eastern Bosnia and the expulsion of the remaining

3 population, this is the indescribable pain of thousands of families.

4 This, Your Honours, is the intended deep and lasting impact of the

5 culpable decisions and actions of the RS leadership, of the VRS, and of

6 General Tolimir.

7 Thank you.

8 JUDGE FLUEGGE: Thank you very much, Ms. Hasan.

9 Now, Mr. McCloskey, you get the floor again exactly for ten

10 minutes, as requested.

11 MR. McCLOSKEY: Mr. President, I don't have much to say further.

12 Words that I had on my paper and meant to say somehow after my friends

13 and colleagues' presentations don't have the worth I thought they may

14 have been.

15 So I want to remind you of one thing and that is:

16 General Tolimir, when we look at his intent, did he make this horrible

17 crime his own or was he just someone that assisted along the way? We

18 know that General Tolimir is a very bright, very impressive, one of the

19 top three, four people of this hideous Main Staff and their ethnic

20 cleansing. He stands as an example of VRS soldierdom, of -- and his

21 actions are something that will be looked upon and judged in history. He

22 is a man that acts with his own free will. He voluntarily chose the path

23 he took. When he was delivered this murder operation by General Mladic

24 and his orders, he had several choices. He wilfully, voluntarily, and

25 intentionally chose loyalty to Mladic, loyalty to the cause over his duty

Page 19459

1 as a soldier and a man to stand down, his duty to his God to say no, his

2 duty under law to stop and prevent and protect. He never uttered a word

3 to the ICRC, to the press, to anyone to stop this or do anything about

4 it. He adopted it for his own for the purposes of the VRS, for the

5 purposes of Mladic.

6 We have never heard him utter a negative word against his leader

7 and his loyal commander General Mladic. He, in choosing Mladic over law,

8 has lost his humanity, but he did this on his own under his own free

9 will. He is not someone that is merely assisting in this project or

10 aiding and abetting. He represents this awful expulsion and destruction.

11 This unique Srebrenica genocide is something that he carries with him

12 personally and will forever.

13 There is only one sentence for this crime and that is life

14 imprisonment. Thank you very much.

15 JUDGE FLUEGGE: Thank you very much, Mr. McCloskey. I take it

16 that this concludes the final oral submission of the Prosecution. We're

17 now nearly at the end -- we are now at the end of today's hearing.

18 Tomorrow Mr. Tolimir will present his views during his final oral

19 submissions. There's nothing that we have to deal with today, therefore

20 we adjourn and resume tomorrow in the afternoon, 2.15, in this courtroom,

21 number 3. We adjourn.

22 --- Whereupon the hearing adjourned at 6.55 p.m.,

23 to be reconvened on Wednesday, the 22nd day of

24 August, 2012, at 2.15 p.m.