1 Wednesday, 22 August 2012
2 [Defence Closing Statement]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.28 p.m.
6 JUDGE FLUEGGE: Good afternoon. First of all, our apologies for
7 the delayed start. There were technical problems, some computer
8 problems, but I hope that they are resolved.
9 As yesterday, I would kindly ask the registrar to call the case.
10 THE REGISTRAR: Good afternoon, Your Honours. This is case
11 number IT-05-88/2-T, the Prosecutor versus Zdravko Tolimir. Thank you.
12 JUDGE FLUEGGE: And since these are the last sessions, I would
13 kindly ask the Prosecution for the appearances.
14 MR. McCLOSKEY: Good afternoon, Mr. President, Your Honours.
15 Peter McCloskey, together with Kweku Vanderpuye, Rupert Elderkin,
16 Abeer Hasan, and Janet Stewart.
17 JUDGE FLUEGGE: Thank you very much.
18 And for the Defence.
19 THE ACCUSED: [Interpretation] Thank you, Mr. President. My name
20 is Zdravko Tolimir. Together with me is my legal advisor,
21 Mr. Aleksandar Gajic. Thank you.
22 JUDGE FLUEGGE: Thank you very much.
23 Mr. Tolimir, very briefly I told you yesterday if there is
24 anything which causes problems for you, health problems, you should
25 indicate that to the Chamber immediately and you may request a pause, a
1 break, so that you are able to conduct your closing arguments properly
2 today. Because of the delayed start, we will consider if you need -- I
3 should put it in a different way.
4 We gave you one day, like the Prosecution yesterday, for your
5 closing arguments. We lost 15 minutes. We will see how it develops
6 today. And we still have the opportunity to have rebuttal and rejoinder
7 arguments by tomorrow so that you shouldn't feel under pressure, time
8 pressure, by giving your oral submissions.
9 Mr. Tolimir, you have now the floor for your final oral
11 THE ACCUSED: [Interpretation] Thank you, Mr. President. I would
12 like to greet everybody present in this courtroom and may God give you
13 all the blessings for all the good deeds that you are going to do. May
14 God's will be done in these proceedings and not necessarily mine.
15 Once again, thank you for the good communication with me.
16 In the third amended indictment, the Prosecutor presented a lot
17 of accusations against Tolimir and tried to corroborate those by
18 speculative documents without any factual basis. At the very beginning,
19 I have to say that the series of accusations that have been presented in
20 the final brief were not present in the third amended indictment.
21 However, since they're not founded, I do not need to defend myself by
22 pointing to the facts that were not contained in the indictment.
23 In the proceedings before this courtroom, in order to consider
24 the facts as being established based on the indictment, they have to be
25 proven beyond a reasonable doubt. And the Defence doesn't have to prove
1 anything. It is the Prosecutor that has to prove -- the Prosecutor has
2 to prove both the objective elements of all the charges that are
3 contained in the indictment as well as the subjective elements of the
4 crimes, the mens rea and the knowledge which is required for every crime.
5 Criminal responsibility is always individual and all the facts have to be
6 considered exclusively within the context of individual and subjective
8 In my final brief -- in his final brief the Prosecutor starts
9 with the thesis: According to which Tolimir was one of the closest
10 advisors and the person of --
11 THE INTERPRETER: Could the accused be asked to slow down. It is
12 impossible to follow.
13 JUDGE FLUEGGE: Mr. Tolimir, the Chamber wants to listen
14 carefully to all your arguments. The interpreters asked you to slow
15 down, otherwise they are not able to translate properly. Please read
16 your text a little bit more slowly so that everybody can follow.
17 THE ACCUSED: [Interpretation] Thank you, Mr. President. After
18 the break I will try to provide the interpreters with a copy of what I'm
19 reading and I apologise to them.
20 The accused assumes criminal responsibility of General Mladic
21 which was never proven and was not a matter of trial in these
22 proceedings. The fact that during the war Tolimir was the assistant
23 commander of the Main Staff of Republika Srpska for intelligence and
24 security cannot serve to draw any conclusions about the criminal
25 responsibility of Zdravko Tolimir. The idea of a court trial is to
1 establish the truth and this is something what the Defence tried to do
2 throughout the proceedings; however, that was not the case with the
3 witnesses who struck a deal with the Prosecution --
4 JUDGE FLUEGGE: Please read slowly. Please read slowly. The
5 interpreters can't follow. And if you have hard copies of your
6 presentation, it could be delivered now to -- with the assistance of the
7 court usher to the interpreters in the booths. That would be very
9 Mr. Gajic --
10 THE ACCUSED: [Interpretation] I have instructed my advisors to
11 make those copies and they will do it with your leave, of course.
12 JUDGE FLUEGGE: With the assistance of the court usher that can
13 be --
14 THE ACCUSED: [Interpretation] We have one copy now.
15 Thank you --
16 JUDGE FLUEGGE: In the meantime --
17 THE ACCUSED: [Interpretation] Those witnesses have presented a
18 series of --
19 JUDGE FLUEGGE: In the meantime you should continue during the
20 period when this matter is resolved, but please read slowly.
21 THE ACCUSED: [Interpretation] Thank you.
22 This refers to the testimonies of those witnesses who presented a
23 series of lies without any proof charging other persons, primarily
24 Momir Nikolic and Witness PB-057 [as interpreted] who testified as viva
25 voce witnesses, and then also Deronjic, whose contradictory testimony was
1 adopted according to Rule 94 bis. In these proceedings we heard a number
2 of members of UNPROFOR who were deployed in Bosnia and Herzegovina as
3 peacekeepers. As a matter of fact, they actually contributed to the
4 promulgation of the war and they acted in favour of BiH army. Let me
5 remind you of the testimony that the Trial Chamber heard. For example,
6 Witness Petar Skrbic, on transcript page 18649, testified that he
7 attended a meeting which was also attended by Tolimir and commander of
8 NATO for Europe Admiral Leighton Smith, who said that the role of NATO
9 was to establish a balance of powers between the Army of
10 Bosnia-Herzegovina and Republika Srpska. If NATO representatives didn't
11 hide that fact, today those who contributed the most to the
12 implementation of that policy don't want to talk about that, and they are
13 the representatives of the command structures of UNPROFOR.
14 The way the role of UNPROFOR is presented today is best
15 corroborated by the Dutch Institute for War Documentation which is partly
16 in evidence in this case. I'm referring to P610, paragraph 2, in which
17 it is stated:
18 "Although it was stated differently in the public, the lawyers of
19 the Royal Dutch Army prepared Dutch witnesses for testimonies and
20 carefully examined their statements with the approval of
21 Colonel Karremans. The progress of statements which may have opened some
22 issues were deleted or reworked. At the end of day, the Ministry of
23 Defence and the Prosecution did not pay attention to the Dutch Battalion
24 but to Karadzic and to Mladic."
25 False reporting happened during the war in the territory of
1 Bosnia and Herzegovina --
2 JUDGE FLUEGGE: Sorry for interrupting. We want to have a clear
3 and correct record. I think there is one mistake and we would like to
4 clarify that. On page 5, line 8, there is a reference to the commander
5 of NATO for Europe, Admiral Dayton Smith. I don't know if that is
6 correct or if that is incorrect. Perhaps you repeat the name.
7 THE ACCUSED: [Interpretation] I apologise. The name is
8 Admiral Leighton Smith. Thank you.
9 JUDGE FLUEGGE: Thank you. That clarifies and you should
11 THE ACCUSED: [Interpretation] The false reporting that was
12 happening during the war in Bosnia and Herzegovina was something that
13 General Smith mentioned in one of statements at D192, and I quote:
14 "Commanders sometimes submitted false reports to their superiors
15 when they didn't want to hear things."
16 One of the problems during the war in the territory of the former
17 Yugoslavia was the question of the enclaves which had been proclaimed
18 demilitarised and protected areas and nevertheless they were used as
19 military strongholds. This was not only the case with Srebrenica and
20 Zepa, but also with other enclaves, for example, Gorazde and Bihac which
21 effectively served as a NATO army which became very prominent during the
22 NATO aggression, the Army of Bosnia and Herzegovina and Croatia against
23 the Republic of Serbia with the help of Rapid Reaction Forces.
24 Without understanding the context within the developments
25 happened during the period of the indictment, it would be impossible to
1 see what the role of NATO and UNPROFOR was. I am referring to D324,
2 page 2 in Serbian and 3 in English, and this is actually the statement by
3 the officer of DutchBat van Duijn, who provided that statement before the
4 commission of the Dutch parliament, and I quote:
5 "There was no peace there; however, we were told to maintain that
6 peace as best as we could. It was a political order to monitor how both
7 sides maintained that peace."
8 The Prosecutor charges Tolimir with participating and
9 contributing to the implementation of two parts of joint criminal
10 enterprise: Forcible removal and killing of males in Srebrenica. And
11 based on that in the third amended indictment, it formulates three
12 charges. None of the allegations which could serve as the basis for the
13 conclusion of criminal responsibility are based on the facts which can be
14 proven beyond reasonable doubt in these proceedings.
15 The Prosecutor charges Tolimir with participation in the alleged
16 criminal enterprise, whose alleged goal was to forcibly remove and deport
17 Muslims from Srebrenica, and I quote:
18 "The Prosecutor says that Tolimir largely contributed to the
19 implementation of the joint criminal plan of the participants in the
20 joint criminal enterprise."
21 In that the moment when that alleged criminal plan was conceived,
22 according to the Prosecution, was the 8th of March when the directive of
23 number 7 was passed in 1995. The Prosecution also emphasises the
24 important role of Tolimir in drafting of that directive; however, the
25 Prosecution did not prove the concrete participation of Tolimir in the
1 drafting of directive 7. Tolimir was not in charge of writing it nor was
2 he involved in the wording of that directive. He played the role that in
3 all the armies of the world is assigned to the assistant commanders for
4 security and intelligence.
5 THE INTERPRETER: Could the witness -- could the accused please
6 be asked to slow down when reading. It is impossible to follow.
7 JUDGE FLUEGGE: Mr. Tolimir, the interpreters again asked you to
8 slow down. They can't follow. And we want to have everything what you
9 have to say to be reflected on the record. Please read slowly.
10 THE ACCUSED: [Interpretation] Thank you. I apologise.
11 And that role consists in submitting information about the enemy
12 and proposing measures of intelligence and security support in keeping
13 with the relevant regulations. As is stated in the final brief by the
14 Prosecution in paragraph 164, I quote:
15 "Mladic received proposals with regard to those elements of the
16 directive that concerned that area -- their areas of work or their
17 sectors. And if those elements were adopted, they would be included into
18 the final version of the directive."
19 In the parts of directive 7 which referred to the intelligence
20 about the enemy and the intelligence and security support, there is
21 nothing illegal. What is written in the parts of the directive in which
22 there is information about the enemy and its intentions has been shown as
23 completely truthful and was useful in practice during the war and after
24 the war.
25 Directive 7 in its challenge part which concerns the task of the
1 Drina Corps was never changed. The directive 7 itself which was passed
2 on the 8th of March, 1995, and which was passed by
3 Commander Radovan Karadzic was soon replaced by directive 7/1 which was
4 issued by the commander of the Main Staff of the Army of
5 Republika Srpska, General Ratko Mladic. In that directive there is no
6 reference to the creation of unbearable conditions for the civilian
8 The Prosecutor talks be all the actions that had to do with the
9 enclaves and ties them with directive 7, including the alleged
10 restrictions on the humanitarian aid convoys. However, in the relevant
11 part of directive 7 it is stated, and I quote:
12 "Daily planned combat activities to create conditions of total
14 Delivering humanitarian aid is not a combat activity; therefore,
15 it is not comprised by directive 7. Let me remind you, directive 7/1
16 which was passed soon after directive 7 is completely in keeping with the
17 rules of international law of war and the role of Tolimir again consisted
18 in submitting intelligence about the enemy.
19 In paragraph 199 of its final brief, the Prosecution claims that
20 the purpose of directive 7 was to deprive the population of Srebrenica
21 and Zepa of the supplies that they needed for survival and thereby to
22 cause a humanitarian catastrophe. However, there is no mention in any of
23 the directives of this intention nor is there any evidence that the VRS
24 deprived the population of the bare necessities. If the Prosecution
25 speaks about the so-called ostensible restrictions, these kind of
1 restrictions envisaged by directive 7 could not in any way be conducive
2 to depriving the population of what they needed for survival.
3 The evidence presented in this case demonstrate that the
4 humanitarian convoys reached the enclaves even during the period when
5 attacks on the Army of Republika Srpska were launched from these
7 There was one convoy scheduled for the 11th of July even which
8 indicates that there was no planned activity for the capture of
9 Srebrenica, but the plan was to separate Srebrenica and Zepa and to have
10 these enclaves demilitarised. As one of the elements of the so-called
11 JCE of the removal or deportation of the civilian population of
12 Srebrenica and Zepa, alleges the purported restriction of humanitarian
13 convoys. In paragraph 60 of the indictment, as well as in their final
14 brief, they say and I read:
15 "Tolimir imposed restrictions on UNPROFOR and humanitarian
17 The allegations about so-called or purported illegal activities
18 as presented in this case are not accurate and are not based on the
19 established facts. Therefore, I assert that truth has to be established
20 in every trial and that it cannot be based on what was being served as
21 the propaganda apparatus of UNPROFOR and NATO.
22 We have to make distinction between UNHCR convoys because their
23 main purpose was to provide food for the population of Srebrenica;
24 however, on more than one occasion they were abused and the commodities
25 were delivered to the BH army in the enclaves. As for UNPROFOR, the
1 purpose of these convoys was to deliver food and materiel for the needs
2 of the UNPROFOR within the enclaves and they had nothing to do with the
3 situation of the civilian population.
4 As demonstrated by the evidence presented here, UNPROFOR was also
5 involved in providing ABiH army and materiel. The totality of the
6 evidence presented in this case, it can reasonably be concluded that both
7 types of convoys were intended to create conditions for the Army of BH to
8 be able to conduct offensive actions from the enclave in order to tie-up
9 the territories of the enclave with the central territory of the Army of
11 First of all, concerning humanitarian aid or UNHCR convoys,
12 neither Tolimir nor the Main Staff of the VRS did -- had no authorisation
13 with regard to granting approval or denying approval for the movement of
14 the convoys in the territory of Republika Srpska. In the relevant period
15 of time, the responsibility for granting approvals for humanitarian aid
16 was in the hands of a co-ordinating body for humanitarian operations that
17 was headed by a civilian while the VRS exclusively had the task of
18 providing security and checking of the convoys and to secure the routes
19 of the movement of the convoys. The VRS didn't have an authority and
20 didn't have any way of limiting the supply of humanitarian supply, nor
21 did it impose any restrictions on humanitarian assistance.
22 As for the responsibility for granting humanitarian convoys, an
23 illustrative exhibit is D303, it is an order issued by the chief of the
24 Main Staff of the VRS on the 31st of August, 1994, in which it explicitly
1 "You know that the Main Staff of the VRS does not have any
2 further authority or responsibility to grant the entry and the movement
3 of the" --
4 THE INTERPRETER: Could Mr. Tolimir please slow down.
5 JUDGE FLUEGGE: Mr. Tolimir, I have to stop you because the
6 interpreters have -- are now getting difficulties again.
7 Mr. McCloskey.
8 MR. McCLOSKEY: I very much apologise for interrupting, but we
9 have in the translation the chief of the Main Staff. Now there is a
10 Chief of Staff of the Main Staff who we know is General Milovanovic and
11 there is the commander of the Main Staff, as we know is Mladic. The
12 chief of the Main Staff as translated is unclear who the General means,
13 and I apologise to the General but our translators need to be able to fix
14 that so we know whether you are talking about Milovanovic or Mladic.
15 JUDGE FLUEGGE: It can easily be checked by looking into the
16 document, D303, but this is a typical result of the speed of your
17 submission. Again I have to ask you to read slowly. It's in your
18 interest so that the Chamber is in the position to receive your full and
19 the entire oral submission. Please continue.
20 THE ACCUSED: [Interpretation] Thank you, Mr. President. I'm
21 going to repeat what Mr. McCloskey has pointed out.
22 Exhibit D303, an order issued by the chief of the Main Staff of
23 the Army of Republika Srpska on 31st of August, 1994, explicitly says the
24 following ... so we are talking about the chief. There was only one
25 chief and that was Milovanovic. And I quoted this paragraph.
1 In Exhibit D307, the document signed by General Mladic on the
2 16th of January, 1994, reads, and I quote:
3 "Pursuant to the order issued by the president of
4 Republika Srpska, Dr. Radovan Karadzic ..."
5 Item 3 of the said order, confidential number 01-128/94, is
6 amended in the following way:
7 "All disputes with UNPROFOR and military observers shall be
8 resolved exclusively through command of the corps of the Main Staff of
9 the VRS. And as far as the international humanitarian organisations are
10 concerned, this is going to be resolved through the government
11 co-ordinating body for humanitarian aid."
12 Concerning the responsibility for issuing decisions for
13 humanitarian aid in the relevant period, that is to say from March of
14 1995, is clearly being indicated in Exhibit P689, which is a decision on
15 setting up a state committee for co-operation with the United Nations
16 international humanitarian organisations, which explicitly in Article 6
18 "The issuing of permits for humanitarian convoys and the movement
19 of UN personnel and that of humanitarian organisations in the territory
20 of Republika Srpska, shall be done pursuant to a decision taken by the
21 committee and will be implemented by the co-ordinating body."
22 Therefore, there is no evidence then in the course of 1994 and
23 1995 Tolimir was ever involved in the issues relating to humanitarian aid
24 convoys for Srebrenica and Zepa. There is not a single document proving
25 that that was the case and proving that Tolimir was at all involved in
1 these matters or that he had any impact on the restrictions of
2 humanitarian aid convoys. That was neither within the scope of his
3 responsibility nor was it the responsibility of the VRS. The VRS's duty
4 was to provide security for the convoys and to check them.
5 In paragraph 211 of its final brief, the Prosecution says, and I
7 "Despite the fact that the state committee had been set up, it
8 was the Main Staff of the VRS who had final authority to impose
9 restrictions to humanitarian convoys at their own discretion."
10 The Prosecution has no evidence to support this. On the
11 contrary, the Main Staff staff of the VRS could not amend any decision
12 taken by the co-ordinating body for the humanitarian aid as well as those
13 taken by the committee.
14 As said by Witness Slavko Kralj on transcript page 18383 when
15 asked whether the Main Staff of the VRS was able to change the decisions
16 approving the movement of convoys in the territory of Republika Srpska,
17 he responded as follows:
18 "This document could have been amended only based on the decision
19 taken by the organ that had originally issued it."
20 The Main Staff of the VRS did not have an authority to amend
21 government documents. The duty of the Main Staff of the VRS was to issue
22 a document, notifying the check-points about convoys that were given or
23 denied permission to pass, which was a routine activity in which the
24 chief of the staff or those who were entrusted with technical matters
25 would deal with. This document in every aspect had to be in compliance
1 with the decision of the co-ordinating body for humanitarian aid.
2 In annex C of its final brief, the Prosecution makes reference to
3 the restrictions of the humanitarian aid convoys by extracting pieces and
4 parts of documents in which huge quantities of food and other necessities
5 are stated as having reached the enclave. As an example of such
6 restriction, the Prosecution says cylinders of oxygen, matches, plywood,
7 oil, lubricants, et cetera, which is not necessary for the life of the
8 civilian population; however, the Prosecution failed to analyse the
9 quantities of food that reached Srebrenica and Zepa in the relevant
10 period. From the documents that were presented to this Trial Chamber, it
11 is clearly evident that considerable quantities of food and other bare
12 necessities required for the life of civilians have, indeed, reached the
13 enclaves. However, the problems with the commodities from the
14 humanitarian aid are of a quite different nature because the humanitarian
15 aid was primarily used in order to supply the Army of BH in the enclaves
16 and the priority was given to its members. This was testified to by
17 Witness PV-073 [as interpreted] on page 642 of the transcript, where he
18 says that his son had been digging trenches for the BH army in exchange
19 for food.
20 All the humanitarian aid convoy problems are attributed by the
21 Prosecution to the VRS; however, during the months preceding the attack
22 on Srebrenica, the main problem was neither the VRS nor Republika Srpska,
23 but rather the problems that existed between the Dutch Battalion and
24 UNHCR. In the study of the Dutch Institute for War Documents, which is
25 an Exhibit P619, page 6, reads that:
1 "The Dutch Battalion also checked the convoys ..."
2 And then it goes on to say:
3 "On the 20th of June, another UNHCR convoy" --
4 JUDGE FLUEGGE: Please slow down. It's impossible to follow.
5 The interpreters are sometimes three or four lines behind you. Carry on,
7 THE ACCUSED: [Interpretation] I am quoting a portion of the study
8 of the Dutch Institute.
9 "On 20th June, another UNHCR convoy arrived in the enclave, this
10 time with 56 tonnes of sugar, beans, salt, fish, flour, soaps, powder,
11 milk, and biscuits. And once again the Dutch Battalion searched the
12 convoy even more thoroughly than if it had been done by the VRS.
13 According to the information provided by the UN military observers
14 present on this location, the commander of the convoy objected to the
15 inspection carried out by the Dutch Battalion and informed his staff
16 thereof. The result was that this convoy was delayed until the next day
17 until the Dutch Battalion changed its procedure."
18 It goes on to say as follows on page 6 that:
19 "The impact of these disagreements between the UNHCR on the one
20 hand and the Dutch Battalion and Army of BH on the other was that the
21 UNHCR convoys would be suspended for as long as the ABH army suspended or
22 gave up on mandatory and thorough inspections. That would mean that the
23 Dutch Battalion would have no reason to conduct any inspections of the
24 convoy. Franken was not satisfied with this. He perceived it as an
25 attempt to put the Dutch Battalion against the ABH and to make them as
1 two confronting parties. His opinion was that the Dutch Battalion
2 certainly did not want to act in accordance with what was dictated by the
3 Army of BH, and in this case concerning UNHCR it is demonstrated that
4 there was no willingness to allow the inspections of their convoys. They
5 thought that adhering to their own principles and rules are much more
6 important than the supply of the humanitarian aid, and they should not
7 lay the blame on the Dutch Battalion and ABH for whatever happened."
8 THE INTERPRETER: Can the accused please continue from paragraph
10 JUDGE FLUEGGE: Mr. Tolimir, the interpreters asked you to
11 continue from paragraph 28 again so that everything is on the record.
12 THE ACCUSED: [Interpretation] In a nutshell, on the issue of
13 these convoys, the failure to deliver humanitarian aid cannot be
14 attributed to the alleged restrictions put in place by the VRS or any
15 body or organ of Republika Srpska. Furthermore, Witness Slavko Kralj
16 testified at page -- transcript page 18406 that in the month of May of
17 1995 convoys were not reaching the enclave during the VRS shelling
18 campaign. They themselves suspended the movement of convoys without
19 having even reported to anyone the fact that they had given up on some of
20 these convoys. They were not restricted by either the co-ordinating body
21 or the VRS. Simply put, these convoys did not reach check-points.
22 According to the evidence of Witness Kralj, transcript page 18407, the
23 same practice was in place during the NATO aggression on Republika Srpska
24 in the months of September and October of 1995.
25 Numerous pieces of evidence were adduced at trial which point to
1 a continued practice of misuse of humanitarian aid convoys. Firstly,
2 humanitarian aid was distributed among the members of the BH army and was
3 used by the BH army in the enclaves, whereas humanitarian aid convoys
4 were used as a means of smuggling in weapons and ammunition intended for
5 the BH army. Since the enclaves were getting ready to engage in the
6 operation of joining up the enclaves with the central part of the
7 territory. By way of illustration, the convoy that was sent to Zepa in
8 June of 1995, a large amount of ammunition was found hidden in flour
9 sacks. We had occasion to see video-clip P2126 and Exhibit D78, wherein
10 the Rogatica Brigade reported about having found a certain amount of
11 ammunition in the convoy travelling to Zepa.
12 We also saw Slavko Novakovic's reports speaking about the
13 practice of misuse of these convoys, namely, Exhibits D73 and D214.
14 Speaking about the practice of using UNHCR convoys as means of supplying
15 BH army are documents such as Exhibits D197, D198, and D199.
16 Let us mention here Exhibit D80 only. It bears the signature of
17 Suljo Hasanovic, chief of the defence ministry branch in Srebrenica dated
18 the 5th of June, 1995, wherein the defence secretariat in Tuzla was
19 informed of the fact that a certain amount of food and fuel had been set
20 aside for the needs of the BH army, and I quote:
21 "After having been taken out of the humanitarian aid contingent
22 which arrived in this area through the UNHCR and one of the batches of
23 aid had been received from the Dutch Battalion."
24 According to the rules of international humanitarian law, the
25 goods intended for a civil population may not be placed at the disposal
1 of military units. This was precisely done in Srebrenica and Zepa. The
2 capabilities of the BH army to prepare and carry out sabotage and
3 terrorist operations out of the enclaves and to work toward preparing the
4 operation of joining up the enclaves with the central BH territory
5 directly depended on the supplies coming from the humanitarian aid, and
6 not only those but also on the supplies at the disposal of the DutchBat.
7 Under those circumstances, Republika Srpska was entitled to restrict the
8 use of humanitarian aid, but it had not done so.
9 The allegation against Zdravko Tolimir, that he had participated
10 in the imposition of restrictions on humanitarian aid convoys in order to
11 create unbearable conditions, living conditions, for the civilian
12 population, is unfounded in more than one way. The issue of convoys
13 related to the logistic supplies for UNPROFOR is quite separate from the
14 issue of UNHCR convoys which were intended for the humanitarian needs of
15 the civilian population.
16 Ever since its deployment there, UNPROFOR and the DutchBat in
17 Srebrenica failed to perform their basic duties. The main duty of
18 UNPROFOR was to demilitarise the enclave, but this had never even been
19 attempted; quite the contrary. The UNPROFOR forces present in the
20 enclave tolerated the fact that Muslims were armed, had regular meetings
21 with them, and - as indicated by Exhibit P2120 - even developed a plan of
22 joint action in the event the VRS would attack the enclave. And this
23 plan was supposed to be kept secret even from UNMOs.
24 Now, in paragraphs 228 and 229 of the Prosecution final brief, it
25 is stated that because of the restrictions imposed on UNPROFOR by the
1 VRS, UNPROFOR was unable to fulfil its mandate. However, the evidence
2 clearly shows that UNPROFOR had not been engaged in fulfilling their
3 mandate to begin with, namely, the demilitarisation of the enclaves, and
4 instead proceeded to tolerate the BH army in the enclaves who had been
5 arming busily and reorganising themselves in preparation for offensive
6 combat. The fact that the VRS wasn't the party that was making the work
7 of UNPROFOR impossible is clearly shown by the fact that ever since its
8 deployment in the enclave UNPROFOR or the DutchBat did not enjoy freedom
9 of movement. This is illustrated by the so-called Bandera Triangle,
10 where 100 DutchBat members were captured immediately upon their
11 deployment there.
12 As stated by Witness Boering at transcript page 9032, we did not
13 have actual freedom of movement. On the basis of evidence adduced at
14 trial, one cannot conclude that the VRS restricted UNPROFOR in the
15 fulfilment of their mandate; quite the contrary. The Republika Srpska
16 army kept alerting UNPROFOR to the fact that they had been failing to
17 fulfil their mandate and that they had been allowing the BH army to use
18 the enclave as their military stronghold.
19 At paragraph 228 of their final trial brief, the Prosecution
20 mentioned the issue of air-lifts as a means of providing supplies for
21 UNPROFOR. Exhibit P710, a telegram that General Janvier sent to Annan -
22 and I repeat that, P710, the telegram sent by General Janvier to Annan on
23 the 18th of April, 1995, indicates that this means of supplies would have
24 had far-reaching consequences. The actual reasons motivating the
25 air-lifts as means of supplies were presented by General Rupert Smith in
1 their statement given to the Prosecution, D193, page 8. Therein he
3 "I explained to Mladic that as an officer of the United Nations,
4 I supported sanctions as a necessary part of the peace process. I also
5 explained to him that the blockade of the enclave would have prevented me
6 from carrying out the duty that I had in respect of my soldiers which
7 could not be tolerated and which would result in the supplies being
8 brought in by helicopter, and that would include NATO military operations
9 as well."
10 All of this was taking place in the period when Muslims were busy
11 preparing themselves for the operation of joining up the enclaves with
12 the central BH territory.
13 Behind all these various requests there was the aspiration on the
14 part of UNPROFOR to have convoys transit the Republika Srpska territory
15 without any inspections or checks whatsoever. As indicated in the study
16 produced by the Dutch Institute for War Documentation
17 P619 [as interpreted], page 2, and I quote:
18 "Smith wanted a decision to be taken at the highest possible
19 level with a view to ensuring a freedom of movement rather than have that
20 freedom depend on the circumstances prevailing or the various conditions,
21 such as the possibility of checking convoys."
22 Thereafter the VRS had to be notified of the fact that as part of
23 the existing rules of engagement UNPROFOR was prepared to engage in
24 combat to protect these convoys and to call in close air support. This
25 is P169, page 2.
1 However, the VRS consistently complied with the procedure
2 proposed by UNPROFOR itself, specifically the issue of UNPROFOR convoys
3 was regulated under two agreements, the general cessation of hostilities
4 agreement, Exhibit P1011, and the agreement titled: "The Principles of
5 the Freedom of Movement," which was stipulated at the proposal of
6 UNPROFOR and signed by General Tolimir on behalf of the VRS and General
7 Brinkman on behalf of UNPROFOR. This is Exhibit D77.
8 The agreement regulated the way in which UNPROFOR convoys were to
9 be cleared, were to move, and to be checked. This agreement, however,
10 does not apply to humanitarian aid convoys and had nothing to do with the
11 supply of humanitarian aid of the civilian population.
12 The witness who was best placed to speak to the issue of the way
13 in which decisions were taken with regard to UNPROFOR convoys and to the
14 role of Tolimir therein was Slavko Kralj. And the Trial Chamber should
15 pay due attention to his evidence. General Tolimir and General Gvero
16 were representatives of the VRS in the central joint commission at the
17 meetings of which UNPROFOR convoy movements were negotiated as well as
18 other issues relating to the freedom of movement. Tolimir did not have
19 the authority to either approve or deny the approval for the movement of
20 convoys. He could merely provide his opinion on the information arising
21 from the meetings of the joint central commission.
22 The decisions were taken either by commanders or chiefs of
23 staffs. Or, in their absence, the officer who was entrusted with that
24 task by his commander.
25 Tolimir and Gvero participated in the procedure where certain
1 requests by UNPROFOR were examined - there was evidence adduced to that
2 effect as well - because they were members of the joint central
3 commission. This was confirmed by Witness Kralj at transcript
4 page 18281:
5 "At the meetings of the joint central commission, the type of
6 goods and the quantities of goods that may be transported were
8 Secondly, it was proven at trial that in deciding on approvals
9 for UNPROFOR convoys, care was taken of the quantities that are required
10 for UNPROFOR purposes in order to allow it to operate and to have
11 sufficient foodstuffs for soldiers. The goods that could have been used
12 as supplies for the BH army and that were not necessitated by the
13 DutchBat were not given clearance, as was the case, for instance, with
14 large quantities of Plexiglass, ski gear, and similar.
15 On the issue of weapons and ammunition, the DutchBat in
16 Srebrenica and the Ukrainian Battalion in Zepa were hostages of the
17 BH army which was able to disarm them at will and to seize their weapons.
18 By way of illustration, the instance where weapons and ammunition were
19 seized off the Ukrainian Battalion in Zepa, Exhibit D55, paragraph 94.
20 Now, there is also Exhibit D105 which clearly speaks about the
21 fact that the weapons and equipment intended for UNPROFOR could possibly
22 also have been used for the purposes of the BH army. This is one of the
23 reports produced by Avdo Palic and intended for the BH army General Staff
24 dated 16 July 1995 which reads, and I quote:
25 "We have been disarming UNPROFOR as per the previously received
2 In other words, there was a plan to disarm UNPROFOR, and that
3 plan was held by the Muslims in the Army of Bosnia and Herzegovina. The
4 Prosecutor's thesis that the situation involving UNPROFOR convoys
5 contributed to the disabling of the UNPROFOR and that that's why they
6 couldn't demilitarise the area is at least unfounded, if not more than
7 that, and it shows the speculativeness of the Prosecutor's argument.
8 Namely, UNPROFOR in the enclaves had enough weapons and ammunition from
9 the moment that they arrived in the enclave. From the moment they
10 arrived in the enclave, they did not take any serious measures in order
11 to disarm the BiH army in the demilitarised zones.
12 The UNPROFOR whose duty was to demilitarise the enclave never
13 used weapons against the BiH army. Whatever weapons they had, they
14 placed against the VRS on the 9th and 10th and 11th of July, 1995, and in
15 addition to that the convoys were tendentiously used against the VRS.
16 The true situation with the convoys is demonstrated by D304 which is a
17 document issued by Mr. Akashi on the 1st of March, 1995. That document
18 shows the way the BiH army treated UNPROFOR. In a nutshell in paragraph
19 5 on page 4 it is stated, and I quote:
20 "First of all, the Bosnian government and Bosnia and Herzegovina
21 are abusing the relative peace which was established after the agreement
22 on the cessation of hostilities was signed in order to put financial
23 pressure on UNPROFOR with regard to the agreements."
24 I continue with the quote:
25 "Secondly, taking into account the reorganisation of the Army of
1 Bosnia and Herzegovina and the gathering of a large quantity of forces
2 and logistics support in the key areas, we believe that an attack is in
3 the offing and that that attack could be launched as soon as the weather
4 conditions improve.
5 "Thirdly, the intention of the government, inter alia, is to
6 convince the international community that the agreement on the cessation
7 of hostilities is not functioning, and in that way they want to discredit
8 the Bosnian Serbs. As a matter of fact, the Bosnian government is the
9 one which has caused more problems because of the introduction of new
10 restrictions on the freedom of movement and that's why they refuse to
11 attend the meetings of the Joint Commission. That is why UNPROFOR has
12 reached a stalemate and the problems cannot be resolved in an adequate
13 way through the work of the Joint Commission. On the other hand, the
14 restrictions that the Serbs have introduced have been largely weakened,
15 although they are still in charge and they still control the delivery of
16 fuel into the enclaves."
17 The Prosecutor speaks about the alleged participation of Tolimir
18 in the restriction of UNPROFOR convoy in paragraph 60(A) and portrays
19 that involvement as an attempt to create unbearable conditions for the
20 civilian population of Srebrenica and Zepa. This allegation is
21 completely unfounded, since UNPROFOR convoys did not have anything to do
22 with the position of the civilian population in the enclaves of
23 Srebrenica and Zepa.
24 The Prosecutor points out that the goal of the VRS was to create
25 unbearable conditions for the population of the enclaves of Srebrenica
1 and Zepa. However, among the multitude of evidence which prove that this
2 was not the goal of the VRS is also a statement by Major Franken that he
3 provided to the Prosecutor. This is P607, which says, inter alia:
4 "During that period the Serbs proposed to the Muslims to trade
5 with them at the prices that prevailed in the black market in the
6 enclaves. After several rounds of negotiations, the civilian authorities
7 of the enclaves allowed the Serbs to supply the enclaves. We insisted
8 that goods should be sold at the market price or what would have been the
9 market price and that the Dutch Battalion should not have any commercial
10 role in that."
11 This fitted well within our own idea of normalising a
12 relationship with -- among the warring parties. Very soon rumours spread
13 that that initiative did not bode well with the groups that controlled
14 the black market. The local military authorities stated that the ban
15 came from the top echelons of the military leadership although similar
16 things functioned well in Gorazde. I suppose that the initiative to
17 boycott the trade actually came from the military leadership in the
19 The proposal that was made by the Serbs with regard to
20 establishing trade relationship with Srebrenica is completely contrary to
21 the Prosecutor's thesis and the allegations that there was an intention
22 to create a totally unbearable conditions for the population of the
23 enclave. One of the contributions in the alleged joint criminal
24 enterprise regarding the expulsion from the civilian population from the
25 enclaves is the operation which was carried out by the
1 10th Sabotage Detachment on the 23rd June, 1995. In paragraph 890 of the
2 Prosecutor's final brief, the Prosecutor proposes a totally
3 uncorroborated allegation according to which, and I quote:
4 "Tolimir approved the engagement of the 10th Sabotage Detachment
5 in the implementation of terrorist activities against the civilian
6 population of Srebrenica with a view to making the living conditions in
7 the enclaves unbearable."
8 THE INTERPRETER: Could the accused please be asked to slow down
9 when reading.
10 JUDGE FLUEGGE: Mr. Tolimir, I have to stop you again. The
11 interpreters asked that you slow down while reading. You are all the
12 time reading your own text and the quotations. Please bear in mind that
13 many people have to follow. Slow down, please.
14 THE ACCUSED: [Interpretation] Thank you, Mr. President. I
15 apologise to the interpreters.
16 First of all, besides the fact that the facts are unfounded, the
17 Prosecutor did not include that in the indictment. In that operation, or
18 rather, Colonel Salapura testified about the operation by the 10th
19 Sabotage Detachment. He was engaged in the preparations for that
20 operation and he testified that:
21 "It was a diversionary operation that did not have any
22 consequences," and that "implementing that diversionary action was just
23 an admonishment to the forces in Srebrenica not to take action against
24 the VRS."
25 First of all, there is no proof that Tolimir approved that
1 operation. Indeed, there could be no evidence to that effect because
2 Tolimir was not in a position to either order the use or use the
3 10th Sabotage Detachment. That detachment was an independent unit of the
4 Main Staff of the VRS which was directly subordinated to the commander,
5 i.e., to the Chief of Staff. That military operation had not been
6 directed against the civilian population which is clearly demonstrated by
7 P2200 issued on the 21st of June, 1995. That document was signed by
8 Colonel Salapura. And this document speaks about the use of the
9 10th Sabotage Detachment. The 10th Sabotage Detachment was provided
10 clear instructions in paragraph 1, and I quote from that paragraph:
11 "To collect data, to plan and to implement the task. The person
12 responsible for all that is the commander of the 10th Sabotage Detachment
13 and the chief of the intelligence department of the Drina Corps."
14 In paragraph 6 of the document it says:
15 "When implementing the task, strictly adhere to the following:
16 "UNPROFOR members should not be threatened, avoid inflicting
17 casualties among the women and children."
18 This document shows that the Prosecutor's allegation about that
19 operation is completely unfounded and that its objective was not to
20 attack the civilian population or to intimidate it. That diversionary
21 action was not an attack against the civilian population which is also
22 corroborated by a report by Ramiz Becirovic who drafted it on the 27th of
23 June, 1995, and which says that nobody was hurt during that operation.
24 If anybody had been hurt, Ramiz Becirovic's report would certainly have
25 contained that information. In any case, nothing is said about Tolimir's
1 actions in the third amended indictment as Tolimir's contribution to the
2 alleged joint criminal enterprise, and that's why this operation by the
3 10th Sabotage Detachment is not relevant when it comes to considering
4 criminal -- Zdravko Tolimir's criminal responsibility.
5 The Prosecutor regards the attack against Srebrenica unlawful.
6 For example, in paragraph 259 of the final brief, the Prosecutor says:
7 "The attack against the Srebrenica enclave had two legitimate
8 military goals: To achieve the demilitarisation of the enclave and thus
9 disabling the 28th Division from launching attacks from the enclave and
10 to completely cut the contact between the two enclaves. However,
11 creating unbearable conditions for the population of the enclaves
12 constituted the violation of the international laws."
13 Moreover, by interpreting General Smith's testimony the
14 Prosecutor states, and I quote that:
15 "The attack against the enclave was not the only choice for the
17 The Prosecutor erroneously states that the goal of the Krivaja 95
18 operation was to create unbearable conditions for the population of
19 Srebrenica, whereas he never mentions the real reason for attacking
20 Srebrenica -- or rather, he mentions the real attack against Srebrenica.
21 The attack that was launched on the 6th of July, 1995, was the
22 only possible situation primarily because of the fact that the BiH army
23 had carried out operations to link-up the territory of the enclaves with
24 the central part of the territory during the period of time when the
25 all-out aggression against the territory of Republika Srpska was being
1 prepared. If the VRS had not carried out an attack against Srebrenica
2 and Zepa, in the following months it would have faced offensive
3 operations at several fronts.
4 JUDGE FLUEGGE: Mr. Tolimir, it's now over 15 minutes before
5 4.00. It's time for the first break although we started a little bit
6 later, and I think it would be a convenient time for our first break.
7 For your benefit and for the benefit of the interpreters, I would kindly
8 ask you to make sure, together with Mr. Gajic, that all interpreters have
9 the text of your submissions and also the court reporter should be
10 provided with one copy.
11 We adjourn and resume at quarter past 4.00.
12 --- Recess taken at 3.47 p.m.
13 --- On resuming at 4.16 p.m.
14 JUDGE FLUEGGE: Mr. Tolimir and Mr. Gajic, can you tell us if the
15 interpreters and the court reporter have now a hard copy each? I see you
16 nodding, Mr. Gajic. Thank you very much.
17 But nevertheless, I would kindly remind you again to slow down
18 while reading. It's not possible to follow in that speed. And again,
19 it's in your interest. If we lose sentences which are important, then
20 it's not in your interest and therefore you should really read slowly.
21 Please continue, Mr. Tolimir.
22 THE ACCUSED: [Interpretation] Thank you, Mr. President.
23 I have left out one sentence from the previous paragraph which
25 "The exclusive reasons for Krivaja 95 are legal and legitimate."
1 Republika Srpska had a right to attack the ABH in Srebrenica and
2 Zepa and claims pursuant to Article 60 of Protocol I to the Geneva
3 Conventions; namely, due to frequent, serious, and fundamental violations
4 of the agreement on demilitarisation which included extensive attacks
5 from the enclaves, the VRS was relieved of its obligation to treat this
6 area as a demilitarised zone and had the right to attack it. The reasons
7 for the attack on Srebrenica and the aims of the attack are clearly
8 stated in Exhibit P1202, which is an order for active combat operations
9 issued at the -- by the then-commander of the Drina Corps,
10 General Zivanovic, which contains as the reason for active combat
11 operations as such:
12 "We estimate that in the forthcoming period the enemy is going to
13 intensify its operations towards the area of responsibility of the
14 Drina Corps and to intensify offensive operations focusing on the Tuzla,
15 Zvornik, and Kladanj-Vlasenica axis with the parallel and simultaneous
16 engagement of the 28th Infantry Division from the enclave of Srebrenica
17 and Zepa in order to cut off the area of responsibility of the
18 Drina Corps and to link up the enclaves with the central territory of the
19 former BiH under the control of the Muslim forces. In recent days,
20 particularly active are Muslim forces from Zepa and Srebrenica enclave.
21 Sabotage and terrorist groups are being infiltrated who are attacking and
22 torching villages, killing civilian population, and smaller units are
23 being sent to the areas around Zepa and Srebrenica enclave, particularly
24 persistent in trying to link up the enclaves and creating this
25 corridor ..." and then it goes on to say about the plans of the Muslims.
1 There is an abundance of evidence which show that the linking up
2 of the enclave with the central territory of the BH Federation was the
3 main and the sole reason for the operation Krivaja 95. I make reference
4 to P2369, a document produced on the 9th of November, 1994, by
5 Brigadier General Enver Hadzihasanovic from the Supreme Command of the
6 armed forces of the Republic of Bosnia-Herzegovina, addressed to the
7 commander of the 8th OG Srebrenica, Naser Oric, which details the plan
8 for the implementation of this idea which is defined in the following
10 "By means of active combat operations, liberate the temporarily
11 occupied territories of Bosnia-Herzegovina, namely, Bratunac, Vlasenica,
12 Sekovici, Zvornik, and Kalesija municipalities, and link up free
13 territories of Zepa and Srebrenica with the free territories of Zvornik,
14 Kalesija and Zivinice, with a view of creating a permanent free corridor
15 for delivering supplies to the population and logistical support of units
16 of the BH army and creating a basis for further liberation of
17 north-Eastern Bosnia as a whole."
18 This plan was something that both the VRS and UNPROFOR knew about
19 because it is explained in that way in the final brief of the Defence in
20 paragraphs 414 to 419.
21 The fact that the aim was to militarily defeat ABH in order to
22 prevent the linking up of the enclaves with the central territory of BH
23 is described by General Mladic in a conversation that he had with
24 General Smith. Namely in the statement that General Smith gave to the
25 Prosecution, and that is D193, page 9, General Smith speaks about the
1 meeting that he had with General Mladic, at which General Mladic
2 explained to him, I quote:
3 "That he was expecting an attack, a Bosnian attack, from eastern
4 enclaves in which case he would attack the enclaves in order to destroy
5 the ABH but would be respecting in doing so his interpretation of the
6 borders of the safe zone and not the interpretation of the UN."
7 And then Smith concludes as follows:
8 "Finally, after this series of meetings I reached the conclusion
9 that the Bosnian Serbs have become aware that further fighting is
10 unavoidable and that some sort of solution must be found during the year.
11 The eastern enclaves were too strong and the BH army deployed within
12 these enclaves constituted a clear threat, particularly because the army
13 of the Bosnian Serbs felt that there was a possibility for them to be
14 faced by attacks on several fronts."
15 Everything that was happening in and around the enclaves was the
16 consequence exclusively of total unpreparedness on the part of UNPROFOR
17 to implement the agreement on demilitarisation reached in 1993 and the
18 agreement on general cessation of hostilities admitted into evidence as
19 P1011 in whose Article 6:
20 "The parties undertake to adhere to the agreement on
21 demilitarisation of Srebrenica, Zepa without delay and in full the one
22 that was concluded on the 24th of May, 1993. Unfortunately, instead of
23 general cessation of hostilities and demilitarisation of the enclave, the
24 ABH in Srebrenica and in Zepa were arming themselves and reorganising
25 themselves in order to carry out the operation of linking up the enclaves
1 with the central part of BH. In addition to representatives of the VRS,
2 the ABH and the Croats, the agreement was signed as witnesses thereby
3 guaranteeing its implementation, representatives of UNPROFOR, namely,
4 General Michael" --
5 JUDGE FLUEGGE: Mr. Tolimir, please stop and wait. The
6 interpreters haven't finished the sentences you were reading before. You
7 should from time to time look at the transcript and to see if it is still
8 going on, and then you shouldn't start the next sentence. Please be very
9 careful. The last words were -- which are recorded were:
10 "Representatives of UNPROFOR, namely, General Michael" and then it
11 stopped. Please continue.
12 THE ACCUSED: [Interpretation] "Michael Rose and Yasushi Akashi.
13 This agreement was binding for UNPROFOR, including General Smith,
14 General Nicolai, and the DutchBat. Instead of honouring the agreement on
15 the general cessation of hostilities, Republika Srpska was under severe
16 sanctions whilst the Army of Bosnia and Herzegovina, contrary to the arms
17 embargo was arming itself and reorganising itself and carrying out
18 offensive operations within the framework of the so-called spring
19 offensive. Intensive sabotage and terrorist operations launched from the
20 enclave are documented, inter alia, by following exhibits: D1, D16, D52,
21 D53, D62, and D76.
22 In Exhibit D238, which is an intelligence report dated 26th June
23 1995, on page 2 it is said:
24 "The Muslim forces, the 28th Division, on the night between the
25 25th and 26th June of this year, launched an offensive from the
1 Srebrenica and Zepa enclave by infiltrating our territory with several
2 sabotage and terrorist groups. They blocked UNPROFOR in Srebrenica under
3 the pretext that they failed to protect the demilitarised zone. One
4 should not rule on the possibility that some members of the UNPROFOR were
5 disarmed. The aim of this operation was most probably to link up our
6 forces and to create favourable conditions for the operations by the 24th
7 and the 26th Division from the direction of Kalesija, Zivinice, and
9 Even the Prosecution witness Momir Nikolic stated in this
10 courtroom, and it's recorded on transcript pages 12565 and 12566, and
11 confirmed his statement given to the Dutch Institute for War
12 Documentation, the number of the statement is D206 which reads, I quote:
13 "The exodus from the enclave took the VRS by surprise. They had
14 thought that Oric had gone to Tuzla and attempted to try and set up a
15 corridor towards Srebrenica. Thereby, they would try to make a
16 breakthrough to both territories. According to this scenario, the
17 2nd Corps would set off from Crni Vrh. From a corridor thus created, the
18 Muslims would then cleanse the remaining territory towards the Drina and
19 cleanse it of all Serbs. According to the information that the VRS had,
20 it -- this plan should have been implemented between the 20 and the 25th
21 of July, 1995. That is the reason why Oric and other officers left the
22 enclave. The Muslim side did not make any particular effort to keep the
23 plan about the corridor secret. Moreover, they even make -- made an
24 announcement to this effect in order to create fear among the Serbian
25 population. Twenty thousand Muslim forces were tasked with the cleansing
1 of the other valley. While he was sitting at the same table with
2 UNPROFOR, Oric reportedly claimed that he was the only one capable of
3 organising between 10- and 15.000 soldiers in the 28th Division. That
4 was sufficient to take the reports about the forming of the corridor
5 seriously. Even the inhabitants of the enclave were perhaps informed
6 about the planned breakthrough. In the recent months, large quantities
7 of ammunition reached the enclave as well as doctors and medicines. In
8 May and June 1995, the traffic between Zepa and Srebrenica considerably
9 intensified. By following these kind of developments, the VRS asked for
10 a meeting with the Muslims in Karremans office. However, Karremans
11 failed to invite the Muslims. This was paragraph 41.
12 These as well as other pieces of evidence clearly show why the
13 Operation Krivaja was carried out, although the Prosecution does not cite
14 any specific allegations and charges. In paragraph 889 of their final
15 brief, they state that Tolimir contributed to the JCE by providing
16 regular intelligence report about Srebrenica and Zepa in order to support
17 the forthcoming attacks. First of all, providing intelligence
18 information to the commander and other units and institutions was not
19 something that was specifically conducted in the period between March and
20 July 1995. Instead, Tolimir was doing that same thing throughout the
21 whole war and there are several hundred such reports admitted into
22 evidence. By providing these reports, Tolimir carried out his duty of
23 the assistant commander for intelligence and security.
24 As time has shown, his reports were accurate and if by doing so
25 and by knowing that the Muslims were preparing attacks in order to link
1 up the territories of the enclave with the centre part of the territory
2 held by ABH, Tolimir did not contribute to any kind of joint criminal
3 enterprise. This is merely the collection of information and
4 intelligence about the enemy, i.e., the BH army who throughout the whole
5 period of the war was enjoying the protection of UNPROFOR and NATO and
6 which were used for joint operations of the ABH, the Croatian armed
7 forces, and NATO Rapid Reaction Forces and a joint aggression against the
8 Republika Srpska towards the end of the war.
9 The attack on Srebrenica was not an attack on the civilian
10 population, nor did it have anything to do with causing harm to the
11 civilian population. We had occasion to see a video, which is the
12 Srebrenica video, indicating that on the 11th of July there was still
13 population housing their apartments in the centre of Srebrenica and that
14 there was provocation fire coming out directed at the VRS. And the fact
15 that the target of this attack was not the civilian population was also
16 demonstrated by what Witness Kingori stated, namely, that there was
17 surprisingly few victims. He said as much on transcript page 5571.
18 The Srebrenica proper was riddled with military targets, since
19 private homes, housing developments, public buildings, the PTT building,
20 as well as other buildings were used for the purposes of armed
21 formations, that's to say the BH army. This is corroborated by the
22 Prosecution Exhibit P957 which is a document dated 22nd February 1995,
23 which contains information about the buildings used by the BH army. Let
24 me repeat the exhibit number, it's P957. Excellent. Thank you.
25 A number of documents speak to the fact that neither operation
1 Krivaja 95 nor the attack on Srebrenica were directed against the
2 civilian population. Among these documents are the ones authored by
3 Zdravko Tolimir. The way Tolimir went about the issue of the protection
4 of UNPROFOR and the civilian population can be clearly found in several
5 documents. Firstly, in Exhibit D85, a letter Tolimir sent to
6 General Krstic on the 9th of July, 1995, which reads, among others:
7 "Special attention is to be given to the protection of UNPROFOR
8 members and the civilian population."
9 Exhibit D41 is another document that clearly indicates the
10 approach taken toward the civilian population of Srebrenica. In the memo
11 dated 9th July 1995 sent by Tolimir to the Generals Gvero and Krstic, it
12 is stated, and I quote:
13 "Pursuant to the order of the president of Republika Srpska,
14 issue an order to all combat formations participating in combat around
15 Srebrenica to secure the highest possible protection and security for all
16 members of UNPROFOR and civilian Muslim population. Give a clear order
17 to your subordinates that they are to refrain from destroying civilian
18 targets unless forced to do so by the strong resistance from the enemy.
19 Prohibit -- issue a prohibition of the torching of housing buildings and
20 make sure that the civilian population and prisoners of war are treated
21 in compliance with the Geneva Conventions of 12th August 1949."
22 In other words, the evidence that has been presented here shows
23 that Tolimir cannot be attributed the intent necessary for an attack on
24 the civilian population. Tolimir did not order or issue any orders in
25 the course of combat, nor was he present in Srebrenica. A commander of
1 an operation will involve all the forces, assets, and the rest in the
2 operation under his command, and in the course of that operation, in
3 order to ensure that there is unity of command and singleness of command,
4 all those involved in the operation are subordinated to the commander
6 The position of the UNPROFOR was a threat to the VRS from the
7 very start and they threatened with air-strikes against VRS positions
8 around the enclave.
9 THE INTERPRETER: The interpreter asks the accused to start again
10 from that sentence.
11 JUDGE FLUEGGE: Mr. Tolimir, the interpreters ask to start again
12 with the sentence because they didn't get everything.
13 THE ACCUSED: [Interpretation] Thank you.
14 The blocking positions and the green order were, according to the
15 evidence adduced in this case and as indicated by the Prosecution in
16 paragraph 289 of the trial brief, erected on the evening of the 9th of
17 July, 1995. However, the VRS Main Staff did not issue a single order to
18 open fire on UNPROFOR; quite the contrary. The VRS Main Staff issued
19 orders not to open fire on UNPROFOR and the civilian population. This is
20 indicated, among others, by Exhibit D69, a memo which was designated as
21 urgent and sent by Milenko Zivanovic from the Pribicevac forward command
22 post personally to General Krstic and the VRS Main Staff personally to
23 Zdravko Tolimir, and it was a memo intended for their information which
24 reads, and I quote:
25 "The Main Staff has ordered that you do not open fire on UNPROFOR
1 and that you avert any possible surprise attacks and intentions on the
2 part of the Muslims to tie or to link up Srebrenica and Zepa. I wish you
3 plenty of luck and extend greetings. General Tolimir."
4 Evidence was adduced in this case about the so-called blocking
5 positions erected by the DutchBat on the 9th July 1995. At paragraph 292
6 of their final trial brief, the Prosecution stated, and I quote:
7 "The idea advanced by the Defence that the blocking positions
8 were conceived with the objective of provoking the VRS into opening fire
9 against members of the peace forces makes no sentence, in view of the
10 fact that the members of the peace forces and the civilian population had
11 been under fire for days and that nothing needed to be done to provoke
12 the VRS into opening fire."
13 As demonstrated by Exhibit D69, the VRS Main Staff ordered that
14 no fire should be opened on UNPROFOR, whereas the view that blocking
15 positions were conceived with the objective of provoking the VRS into
16 opening fire on UNPROFOR positions in order to ensure fire support was
17 not, in fact, an idea advanced by the Defence. It is a fact based on the
18 evidence adduced in this case.
19 The allegations advanced by the Prosecution are contrary to what
20 the Prosecution witness stated, namely, General Nicolai, and what
21 van Duijn said before the commission of the Dutch parliament.
22 General Nicolai in a statement given to the Prosecution, which is D70,
23 stated the following at page 10, and I quote:
24 "On Sunday, the 9th, the VRS resumed their attack and it became
25 quite clear that they were not only attacking the southern part of the
1 enclave but that their attack had the objective of the town of
2 Srebrenica. This led to several exchanges of consultations between the
3 staff in Sarajevo and the staff in Zagreb, and the main issue discussed
4 in these exchanges was under which conditions would the use of
5 fire-power -- of air fire be allowed. Zagreb clearly stated that
6 General Janvier was not willing to resort to this ultimate measure before
7 the DutchBat used their own weapons. He wanted certain other steps to be
8 taken before air-strikes would be resorted to.
9 As a result of these consultations, we issued -- we gave an order
10 to the DutchBat to take up blocking positions south of the town of
11 Srebrenica so that should the VRS attack the town it would not only
12 constitute an attack on the civilian population but also an attack on
13 UNPROFOR units. Thereby, all the necessary conditions for the use of
14 air-strikes would be met. The Dutch Battalion complied with this order."
15 Consequently, the reason why blocking positions were erected was
16 without any doubt to create conditions to ensure that the VRS positions
17 can be bombed. That a green order had been issued is shown by a number
18 of exhibits in this case. Witness Franken stated at transcript page 3453
19 in lines 23 to 25, and I quote:
20 "By having issued a green order, we were engaging with the VRS
21 and the VRS became a target. And in fact quite -- what was realistic and
22 correct was quite the contrary."
23 And at page 3484 he explained that:
24 "The fact that the green order was issued changed the mandate of
25 the Dutch Battalion and that the restrictions that had been there on the
1 use of armed force disappeared in fact."
2 Exhibit D324 is the statement given by van Duijn to the Dutch
3 parliamentary commission investigating Srebrenica and at page 4 he speaks
4 about this green order and the nature of the order, and I quote:
5 "The order was issued as green, which means that there was a
6 higher tendency toward hostilities. We had been preparing for that order
7 by trying to collect as much equipment as we had at our disposal and by
8 deploying our soldiers. We next went and took up positions. The order
9 was that we should return fire if fired upon and that we should first
10 fire above their heads, and I mean of the Serbs, and later right at them.
11 This was part of the combat order by Captain Groen.
12 "In fact, it was a green order which made use of certain blue
13 assets and this isn't the proper way of going about it. If you are
14 complying with a green order, you have to resort to camouflage and make
15 sure that you carry out your operation with an element of surprise. You
16 can surely not go about it by taking up positions out in the open,
17 without any cover, and with white vehicles and blue helmets."
18 On that same page there is something to be learned from the
19 question put by a member of the parliamentary commission. He made a
20 statement to van Duijn and put a question to him.
21 "A month earlier the Dutch Battalion was engaged in drills in
22 these blocking positions. Did you participate in these drills yourself?"
23 Van Duijn's answer was that he had not taken part in these
24 drills. In other words, the DutchBat was ready to take up blocking
25 positions at a time when the attack on the enclave had not even been in
1 the planning stage. Had the purpose of these blocking positions been --
2 or rather, that the purpose of these blocking positions was to attract
3 VRS fire is also proved by the following quotation at page 5.
4 Mr. Baker's question:
5 "You took up these positions in a favourable moment. You've
6 already told us that it was supposed to be carried out with fire support.
7 Was the purpose of these blocking positions also to attract the fire of
8 the Bosnian Serbs as a way of bringing about fire support?
9 Van Duijn's answer to that was, I quote:
10 "I realised at a later stage that this was what it was all
12 In response to yet another question on page 6 van Duijn answered:
13 "At first we indeed fired above their heads. I don't recall
14 exactly what was our order. That was just one of the orders of the many
15 issued by Captain Groen, but I know that I issued my artilleryman an
16 order to shoot at the Serbian soldiers as soon as he saw them."
17 Actions by the DutchBat on the ground were such that on the one
18 hand, together with the BiH army, they participated in combat activities
19 against the Serbs, and they did everything that they could in order to
20 shell the VRS positions. On the other hand, they sought protection from
21 the VRS. In this case no evidence was adduced to the fact that members
22 of the Dutch Battalion who feared Muslims and joined the VRS side and
23 that in doing that they were exposed to any irregular treatment. In
24 order to prove Tolimir's role in Operation Krivaja, the Prosecutor
25 alleges that Tolimir participated in the co-ordination and control of
1 Krivaja 95 attack and providing support to that attack. That's in
2 paragraph 891. The allegation provided by the Prosecutor can be found
3 within the context of the charges contained in paragraph 60 of the third
4 amended indictment, wherein it is stated that Tolimir contributed to the
5 joint criminal enterprise by disabling UNPROFOR's military capabilities,
6 including the prevention and control of the international protection for
7 the enclaves from the outside, including air-strikes and international
9 And it says:
10 "By his contact with UNPROFOR, he helped to disable UN
11 capabilities during the attack against Srebrenica. To be more specific,
12 he lied to the UNPROFOR and co-ordinated with other officers from the
13 Main Staff and in the subordinated units."
14 This Prosecutor's allegation is unfounded from several aspects
15 and one of them is the fact that it is legally unfounded. Since those
16 contacts were those that Tolimir maintained as part of his regular
17 duties. First of all, the Prosecution claims in paragraph 270 of its
18 final brief that Tolimir was in the Main Staff of the VRS and in the
19 command of the Drina Corps in Vlasenica.
20 The Prosecution's allegation that on the 9th of July Tolimir was
21 in Vlasenica is not corroborated by any evidence. The Prosecutor evokes
22 D85 in which it conveys the contents of a conversation with
23 General Nicolai. First of all, Nicolai called the Main Staff and not the
24 command of the Drina Corps. The command of UNPROFOR did not have a link
25 with the Drina Corps in Vlasenica. Evidence D85 is a document issued by
1 the command of the Drina Corps on the 9th of July, 1995, which was sent
2 to the command of the Drina Corps at the forward command post at
3 Pribicevac to the attention of General Krstic as well as to the sector
4 for intelligence and security of the Main Staff to the attention of
5 General Tolimir for his information. It turns out that Tolimir sent a
6 document to himself in order to inform himself about its contents. It
7 really doesn't make any sense.
8 The only reasonable conclusion that one can draw from an analysis
9 of this document is that Tolimir sent a similar document or a document
10 with the same contents from the General Staff and somebody in the
11 Drina Corps, probably General Zivanovic, forwarded it by having first
12 changed the heading. Since this telegram was sent as urgent, it seems
13 that the sender did not have the time or indeed the need to add to it who
14 the telegram was sent by or anything else for that matter.
15 It is important to mention that in this document it is
16 particularly stated, and I quote:
17 "Pay special attention to the protection of UNPROFOR members and
18 the civilian population."
19 In other words, Tolimir was in the Main Staff of the VRS. He
20 conveyed his communication with the UNPROFOR and he insisted on his men
21 protecting UNPROFOR members and the civilian population, despite the fact
22 that they threatened him with air-strikes that had already been planned.
23 This is also demonstrated by evidence D137. That document shows that
24 that zone had to be created around Srebrenica and that's a quote and that
25 death zone had to be created by NATO aircraft.
1 Tolimir did not lie to the UNPROFOR when he alerted them to the
2 fact that the Muslims were using UNPROFOR APCs. Let's remind ourselves
3 of Franken's testimony on page 3456 of the transcript. To the question
4 as to whether he knew anything about the fact that checks were made,
5 after the General Staff of the VRS had warned them that the Muslims were
6 using six combat vehicles that were painted white, he answered, and I
7 quote what Franken said:
8 "I know that sometime in April I received a report from one of my
9 observation posts. They reported to me that two APCs 60, eight-wheelers,
10 painted in white arrived from south and that they drove into the enclave
11 at a very high speed. We tried to stop them. However -- or rather, to
12 confirm that they were there. However, after that we never saw them
13 again. During the attack we did not see them being used."
14 On page 3459, lines 16 through 19, Franken testified that in the
15 logistics report he saw that members of the Ukrainian Battalion in Zepa
16 reported a loss of six APCs. Exhibit P1225 proves that those APCs were
17 indeed used. That is an order for the attack against Zepa issued on the
18 13 July 1995. In paragraph 7 of this document, page 3, it is stated, and
19 I quote:
20 "Be prepared for action against APCs which the Muslim army had
21 stolen from UNPROFOR and it is now using them against our own forces."
22 The Prosecutor alleges in paragraph 893 of the final brief that
23 during the operation Tolimir lied to UNPROFOR in order to try to buy
24 time, that he manipulated them in order to make it easier to the VRS to
25 occupy the enclave and to forcibly remove the population."
1 The Prosecutor alleges that Tolimir's actions neutralised in the
2 key, final phase of the Srebrenica operation the UNPROFOR troops so that
3 UNPROFOR did not succeed in blocking the VRS attack and thus saving the
5 General Nicolai and General Janvier, with whom Tolimir
6 communicated within the telephone, did not make their decisions based on
7 what Tolimir had told them. Rather, they made their decisions based on
8 their own intelligence, the intelligence that they received from the
9 Dutch Battalion and in keeping with what they had intended to achieve.
10 During that period of time, Tolimir performed his regular duties and he
11 responded to UNPROFOR requests in the course of the operation during
12 which UNPROFOR from the day one sided up with the BiH army, which had
13 been previously planned at a meeting between Karremans and
14 representatives of the BiH army. With them he co-ordinated his own
15 activities and he used all of the available force against the VRS on the
16 9th, 10th, and 11th July, and that also included air-strikes on the 11th
17 July 1995.
18 The objective of the attack against the enclave, as we have
19 already demonstrated, was not to attack the civilian population or the
20 UNPROFOR which is clear from several documents that Tolimir sent during
21 the relevant period. The attack against the enclave was aimed at its
22 demilitarisation, at attacking and fighting against armed terrorist
23 groups, and those were legitimate objectives and those were legitimate
24 targets. The Prosecution does not have a single piece of evidence based
25 on which it could prove that Tolimir's participation in that operation
1 was against the civilian population. The contrary is true. He regularly
2 issued instructions not to attack the civilian population and not to
3 attack UNPROFOR. Tolimir's participation in the attack against
4 Srebrenica cannot be qualified as an attack against the civilian
5 population. His actions and negotiations with UNPROFOR during which he
6 reported to the UNPROFOR on what he had received from the ground, he's
7 taking measures in order to remove the bodies are not actions that would
8 incriminate him.
9 In paragraph 60(B) of the indictment, the Prosecution charges
10 Tolimir with the participation in the military arming of the Muslim
11 forces --
12 THE INTERPRETER: Could the accused please slow down.
13 JUDGE FLUEGGE: Mr. Tolimir, again you are asked by the
14 interpreters to slow down. You should repeat the last sentence beginning
15 with the words: "In paragraph 60(B) of the indictment ..."
16 THE ACCUSED: [Interpretation] In paragraph 60(B) of the
17 indictment, the Prosecution charges Tolimir with the participation in the
18 military defeat of the Muslim forces. Allegedly, he did that by, and I
20 "He contacted the forward command post of the Drina Corps and the
21 president of Republika Srpska, Radovan Karadzic, with regard to the
22 combat operations surrounding Srebrenica and the decision on taking
24 This charge is unfounded, i.e., it cannot be considered any sort
25 of contribution to the alleged forcible removal of the population of
1 Srebrenica. Namely, Exhibit D41, which is Tolimir's document issued on
2 the 9th of July, 1995, is clear with regard to the fact that the target
3 of the attack was neither the civilian Muslim population nor the
4 UNPROFOR. In this document it is stated, and I quote:
5 "I order you not to set residential buildings on fire and I order
6 you to treat the civilian population in agreement with the
7 Geneva Conventions dated the 12th of August, 1949."
8 The text of this instruction is clear. The Prosecutor considers
9 the evacuation of the Srebrenica population unlawful, i.e., the
10 Prosecutor claims that that was the case of a forcible removal of the
11 population. The decision on the evacuation of the civilian population is
12 not Tolimir's decision. It was not a decision by the Main Staff of the
13 Army of Republika Srpska or the civilian bodies of Republika Srpska.
14 That decision was taken at the level of the United Nations and by the
15 authorities in Srebrenica.
16 What was the position of Republika Srpska towards the civilian
17 population of Srebrenica? This can be seen from Exhibit D41 which is
18 Tolimir's document which says that the civilian population had to be
19 treated in keeping with the Geneva Conventions as well as Exhibit P23,
20 i.e., the decision on the appointment of the civilian commissioner for
21 the municipality of Srebrenica dated 11 July 1995. In this decision, in
22 its paragraph 4, it is stated and I quote:
23 "The commissioner will make sure that the civilian and military
24 bodies, when it comes to all the citizens who participated in fighting
25 the VRS, should be treated as prisoners of war. At the same time they
1 will make sure that the civilian population can freely choose the place
2 where they want to move to."
3 Who is it who planned the evacuation of the population of
4 Srebrenica? This can be seen in Exhibit D174, a document which was
5 issued on the 11th of July, 1995. This is a telegram which Annan sent to
6 Akashi and presents the UN policy towards the Srebrenica enclave. It
7 consists of a complete evacuation of Srebrenica. In paragraph 2(B) of
8 this document it is stated, inter alia, I quote:
9 "UNHCR reports that 80 per cent to 90 per cent of the population
10 of Srebrenica (the total number of the population is about 40.000 people)
11 are made up of the displaced persons who had fled war activities at the
12 beginning of the war so that they don't have any property in Srebrenica
13 and they will not be attached to the enclave and they will be interested
14 in leaving for Tuzla. One of the local UNHCR members in Srebrenica
15 stated today that practically all the people there wanted to leave the
17 Somewhat later it is stated and I quote:
18 "After the consultations with the Bosnian government in order to
19 avoid the continuation of the humanitarian disaster, the Bosnian Serbs
20 will be requested to allow all the population, including all the men, to
21 leave Srebrenica and to go to Tuzla if they so wish. The Dutch Battalion
22 will be instructed to remain in Srebrenica until the moment the departure
23 of those people is agreed with the Bosnian Serbs."
24 Under ideal circumstances, a considerable number of armed
25 UNPROFOR members will stay in UNPROFOR at least until the moment
1 everybody who wants to leave the enclave is gone. This operation will
2 have to be co-ordinated with the desire of the Dutch Battalion to
3 evacuate its own forces from Srebrenica as soon as possible.
4 In paragraph 3 of this document it is said:
5 "UNPROFOR," and I quote, "UNPROFOR shall immediately commence
6 negotiations with the Bosnian Serbs about:
7 "1. The supply of the necessary foodstuffs and medical supplies
8 for the population of Srebrenica.
9 "2. About safe, speedy, and organised departure of all these
10 people from Srebrenica to Tuzla, including able-bodied men starting with
11 an urgent evacuation of the wounded. This is going to be a major
12 logistical operation that could start as early as on the 13th of July.
13 This policy of the UNPROFOR was implemented by members of the Dutch
14 Battalion. Namely, at the first meeting at the Fontana Hotel Karremans
15 told Mladic that UNPROFOR wished people to be pulled out, i.e., that they
16 were waiting for buses to arrive ...
17 JUDGE FLUEGGE: We don't receive English translation at the
19 THE INTERPRETER: The interpreters apologise. We cannot follow
20 all the references.
21 JUDGE FLUEGGE: Mr. Tolimir, the last part of the sentence which
22 is recorded is that "they were waiting for buses to arrive ..." From
23 there on you should continue.
24 [Trial Chamber and Registrar confer]
25 JUDGE FLUEGGE: Could you please repeat the number of the
1 document you are referring to so that it can be brought up on the screen.
2 THE ACCUSED: [Interpretation] This policy of UNPROFOR was
3 implemented by members of the Dutch Battalion; namely, Karremans at the
4 first meeting --
5 JUDGE FLUEGGE: Mr. Tolimir, Mr. Tolimir, I asked you to give the
6 reference again, the number of the document, so that it can be brought up
7 on the screen which would assist the interpreters.
8 THE ACCUSED: [Interpretation] P1008, pages 16 and 17 in Serbian
9 and 19 to 21 and 26 and 27 in English.
10 JUDGE FLUEGGE: Thank you.
11 THE ACCUSED: [Interpretation] And on page 20 of the transcript
12 from this meeting it is said, and I quote:
13 "What I was requested by General Nicolai and something that was
14 ordered to him by General Janvier in Sarajevo as well as by the
15 authorities, to stop what had been going on in the last six days on
16 behalf of the population, and for the benefit of the population, all of
17 us would like to maintain the status quo and then to -- the enclave to be
19 In other words, these are the statements made by Colonel
20 Karremans. Therefore, one cannot attribute the forcible relocation of
21 the population to the VRS, having in mind that this operation was carried
22 out at the request of UNPROFOR and the civilian population of the enclave
23 and, at the same time, the Dutch Battalion asked them to abandon and
24 leave the enclave as soon as possible. General Mladic did not want to
25 agree to that before he heard from representatives of the civilian
1 population and he asked for two meetings with them.
2 Tolimir was not in Srebrenica, either on the 12th or the 13th of
3 July or before or after these dates. However, in paragraph 354 the
4 Prosecution says, and I quote:
5 "That officers for intelligence at all levels within the VRS from
6 the Main Staff downwards were under Tolimir's command and they
7 supervised, co-ordinated, and carried out the operation of forcible
9 This argument is totally unfounded and speculative. First of
10 all, none of the officers or soldiers of the VRS or members of the MUP
11 was under Tolimir's command. Tolimir could not issue any orders to them.
12 During combat operations, all individuals had to operate and follow the
13 orders of the commander of the operation and not Tolimir's proposals.
14 The officers who were present in Potocari and Srebrenica were directly
15 under the command of the operation commander. They couldn't and they
16 didn't receive orders from Tolimir. At the time, Jankovic was
17 resubordinated to the command of the Drina Corps and he served as a
18 liaison officer for UNPROFOR. The Prosecution witness, Colonel Salapura,
19 said in this trial on 3rd May 2011, transcript page 13578, that sometime
20 between the 11th and 19th Radoslav Jankovic was subordinated to the
21 command of the Drina Corps. In other words, everything he did he did
22 pursuant to the orders under the direction and control of the Drina Corps
23 and not of Tolimir.
24 The Prosecution corroborates their argument that Tolimir
25 controlled Jankovic by citing Exhibit P626. First of all, there is no
1 information contained in this document testifying to the fact that
2 Tolimir had any knowledge about any criminal offence committed during the
3 evacuation. On the contrary, in his report Jankovic wrote the following,
4 inter alia:
5 "We believe that we wish to take control of the enclaves Zepa and
6 Gorazde, and in order to do that it is necessary to portray the action in
7 Srebrenica in the media in such a way that we are depicted as providing
8 fair treatment to the population and even to the combatants who laid down
9 their weapons."
10 One can only draw one reasonable conclusion from this. Jankovic
11 has no information about any killing plans. If there was a plan to kill
12 the able-bodied men, how was it then possible to portray it in the media
13 as receiving good treatment? In paragraph 894 the Prosecution asserts
14 that Tolimir supervised, directed, and guided his subordinates, including
15 Jankovic, Popovic, Momir Nikolic, and as well as the military police of
16 the Bratunac Brigade and the Drina Corps, while they were directing a
17 forcible relocation of the population from Potocari on the 12th and 13th
18 of July which was -- and that he was fully aware of the illegality of
19 their actions.
20 This claim of the Prosecution is completely unfounded. First of
21 all, where was Tolimir on the 12th and 13th July? Was Tolimir present at
22 the meetings in the Fontana Hotel or did he participate in any other
23 operation relating to Srebrenica? Tolimir informed the commander of the
24 operation and the security organs about everything he knew about the
25 enemy activities in accordance with the rules of war which is something
1 that is going to be discussed later on in the rebuttal to the accusation
2 about the alleged joint criminal enterprise of killing able-bodied men of
3 Srebrenica. None of the VRS officers who were present in Srebrenica was
4 under Tolimir's command. Tolimir did not supervise their work and he
5 couldn't do that because that was the responsibility of their respective
6 commanders and the operation commander who took part.
7 Since Tolimir was not in Srebrenica on the 12th or 13th July and
8 since he did not take part in the evacuation of the Srebrenica
9 population, as requested by the UN officials, Tolimir cannot be
10 considered responsible for the alleged forcible relocation of the
11 population nor for opportunistic killings cited by the Prosecution in the
13 The Prosecution has come forward with a series of unfounded
14 accusations against Tolimir with regard to the events in the area of Zepa
15 in July 1995. In paragraph 60(D) of the indictment the Prosecution says,
16 and I quote:
17 "That Tolimir took part in the negotiations with the
18 representatives of Muslims of Zepa and offered them a choice between
19 evacuation or military action by the VRS."
20 This assertion is completely erroneous. In paragraph 895 of
21 their final brief, the Prosecution alleges that Tolimir gave "illegal"
22 ultimatum by saying:
23 "That the population had to leave the enclave or face a military
25 The Prosecution qualifies this as a criminal act of forcible
1 relocation. The meeting that the Prosecution qualified in the
2 above-described way was documented in a number of exhibits. First of
3 all, P491 is Tolimir's report dated the 30th of July from the said
4 meeting. It says in the first sentence, and I quote:
5 "On the 13th of July, 1995, at 1200 hours we had a contact a
6 Hamdija Torlak, the president of the Zepa executive committee and
7 Mujo Omanovic, a member of the War Presidency, about the demilitarisation
8 of the enclave and the freedom of movement of the civilian population
9 pursuant to the Geneva Conventions of 12th August 1995."
10 This document does not contain a single reference to any forcible
11 act of forcing the civilian population to leave the enclave. The
12 commander of the Ukrainian Battalion in Zepa was also present at the
13 meeting. This is Prosecution Exhibit P596 which is a memorandum dated
14 13th July 1995 drafted by Louis Fortin. In paragraph 8 it is said, and I
16 "The commander of the Rogatica Brigade, accompanied by
17 General Tolimir and local representatives, held a meeting at the
18 Ukrainian command post 2 today at 12 00 hours. The Serbs asked the Zepa
19 Bosnians to lay down their weapons, after which the civilian population
20 can either go or stay."
21 And the last sentence of paragraph 9 reads, I quote:
22 "The Serbs want to take hold of this pocket without fighting, if
24 In other words, the ultimatum had nothing to do with forcible
25 relocation of the civilian population. It has been proven in this trial
1 that there were many civilians in Zepa who wanted to leave the enclave.
2 For example, the majority of the population was constituted by refugees
3 who wanted to leave the enclave because other members of their families
4 were either accommodated in other areas or they wanted to leave to third
6 Tolimir reports about these negotiations, which is Exhibit P491,
7 and it reads, I quote:
8 "We have provided guarantees for the evacuation of the entire
9 civilian population and able-bodied men who surrendered their weapons as
10 well as security and safety for the civilian population who decide to
11 acknowledge the authority of Republika Srpska and to remain in its
13 Therefore, this is not about expelling population, but rather
14 allowing the able-bodied men who surrendered their weapons, that is to
15 say members of the Army of Bosnia and Herzegovina who wants to leave, to
16 be allowed to leave. Therefore, it is clearly stated that safety will be
17 guaranteed to those who decide to stay behind. This kind of conduct is
18 in compliance with the agreement on demilitarisation of Srebrenica and
19 Zepa from 1993 which was confirmed by an agreement on general cessation
20 of hostilities on 31st December 1994. According to document P145 in
21 which Tolimir reports that the planned contacts were not made, he
22 indicates that the Muslim want, and I quote:
23 "Secure the support of the majority of the population for the
24 already-made decision to move out. They informed most of the inhabitants
25 and soldiers that everybody will be allowed either to leave or to stay in
1 the area of Zepa, provided they surrender their weapons and recognise the
2 Serbian authority."
3 A number of well-off Muslims showed interest to move out with
4 their movable property and to move to the FRY or to -- through third
5 countries, thereby wishing to avoid being engaged in the Army of
6 Bosnia-Herzegovina. With the mediation of UNPROFOR, we informed the Zepa
7 leadership that the process of moving out and the surrender of weapons
8 must commence at 900 hours on the 15th of July, 1995, if they decide not
9 to move out under the offered conditions, we are planning to start combat
11 Therefore, this has nothing to do with the expulsion of the
12 population. It has to do with the demilitarisation of the enclave. It
13 has to do with the evacuation of those who are supposed to lay down their
14 weapons and not about the forcible removal of the civilian population.
15 That's why the accusation contained in paragraph 60 of the third amended
16 indictment is completely without foundation. The objective of the attack
17 on Zepa was not the civilian population as, in fact, indicated in
18 Exhibit P1225. It is a document by General Krstic dated the 13th of
19 July, 1995, titled: "Order to attack the enclave of Zepa."
20 In item 9 of the order you can read the following, and I quote:
21 "The civilian Muslim population and UNPROFOR are not the targets
22 of our forces. They are to be rounded up and kept secure under guard and
23 the armed Muslim groups are to be crushed and destroyed."
24 The orders of this and similar sort are not issued for the sake
25 of formality but to be complied with. As was the case with Srebrenica,
1 the area of Zepa was also passed off as a demilitarised zone and the
2 Muslims routinely cited and exploited as far as they could this
3 abominable lie. As stated by Viktor Bezurchenko in the report entitled:
4 "The Fall of Zepa," which is Exhibit D55, at paragraph 65, and I quote:
5 "The BH army expected Zepa to attract the attention of the
6 international media, and the moral guidance administration of the BH army
7 General Staff had been developing instructions for a psychological
8 operation related to Zepa. It was the strategy of the BH army to deny
9 the presence of any BH army units in Zepa, Srebrenica, or Gorazde, to
10 attribute any military operations to the unarmed population, and not to
11 admit to any or not to accept any discussions on evacuation."
12 The transcript does not state that this was D55, paragraph 65.
13 And let me continue.
14 What was truly going on is indicated in a number of documents
15 that were admitted into evidence in this case and I will cite only
16 several of them. On the 14th of July, 1995, the War Presidency of Zepa
17 issued a decision to call general mobilisation. This is Exhibit D349.
18 Under this decision, all the available resources and personnel were
19 placed in the service of the army. General Petar Skrbic, in answer to a
20 question put by Judge Mindua, stated as follows, and I quote:
21 "This clearly states that all those who are able-bodied should be
22 placed at the disposal of the brigade and will become members of the
23 brigade without any additional conditions. They are to be issued with
24 weapons, their work obligation is to be discontinued, and they are to
25 become full-fledged members of the brigade."
1 The document is also significant because the way in which general
2 mobilisation was called in Zepa and since this applied to able-bodied
3 members of the army, in the case of their capture they would be entitled
4 to the status of prisoners of war.
5 Izetbegovic Alija Izetbegovic, the president of the BH
6 Federation, spoke about the evacuation of Zepa with General Smith. Thus,
7 in document D363, a letter sent by Alija Izetbegovic to General Delic, it
8 is stated and I quote:
9 "I have just finished by talks with General Smith. Perhaps I
10 should secure the evacuation of Zepa, and I mean women and elderly from
11 Zepa with the mediation of UNPROFOR."
12 And item 4 reads, and I quote:
13 "This contains a plan of the evacuation of the population of Zepa
14 which is to be applied in the event that neither the contents of items 1
15 or 2 are to be feasible. And I am sending you annexed the plan of the
16 evacuation of the population of Zepa. This plan states that it was
17 developed on the basis of the message that was sent out by the people of
18 Zepa on the 16th of July, 1995, and the information provided by the
19 commander of the OS Zepa of the 17th of July, and that it was on the
20 basis of these documents that talks were held with Alija Izetbegovic on
21 the 17th and 18th July 1995.
22 Now, the proposal that this document contains in item 2 is as
23 follows, and it's on the following page, and I quote:
24 "That the entire population of Zepa should be evacuated in an
25 organised fashion in evacuation groups and as soon as may be if possible
1 forthwith, or rather, based on assessments of the situation on the ground
2 in order to ensure their safe transport. The BH army ought to secure the
3 column of the population which is to be evacuated. Those members of the
4 population who are not able to be evacuated on foot for reasons of health
5 or other reasons or to be put up in the UNPROFOR base in Zepa, and once a
6 list of them has been drawn up are to be evacuated with the assistance of
7 the International Red Cross, UNHCR, and other international institutions
8 and transferred to the free territory. These individuals are to be
9 accommodated in the UNPROFOR base in Zepa right away and they should
10 follow the last unit leaving the territory of Zepa in order to ensure the
11 secrecy of the entire evacuation plan."
12 JUDGE FLUEGGE: That was the end of the citation of the entire
13 evacuation plan.
14 Mr. Tolimir, it's now time for the second break. I have no idea
15 how much time you will need to conclude your closing arguments. You have
16 one hour left, three-quarters of an hour today and one-quarter of an hour
17 tomorrow. I would like to invite you especially to address the core
18 issues of this case in the remaining hour. As you know, since February
19 of this year, like the Prosecution, you have one day for presenting your
20 final submissions, your oral final closing arguments. Will you be able
21 to finalise it within one hour? This is one question I have for you and
22 I have one question for Mr. McCloskey and then we may know how to
24 Are you able to indicate already now if you will need time for
1 MR. McCLOSKEY: Yes. Good afternoon, everyone, Mr. President,
2 Your Honour. Yes, we would like some time for rebuttal. I doubt very
3 much it will take all of the 30 minutes, but we have identified some
5 JUDGE FLUEGGE: In any case, that makes clear that we are sitting
6 tomorrow with the completion of Mr. Tolimir's submissions, with rebuttal
7 by the Prosecution, and possible rejoinder by Mr. Tolimir.
8 We have our second break now and -- no, first of all,
9 Mr. Tolimir, will you be able to conclude your oral submissions in the
10 remaining hour?
11 THE ACCUSED: [Interpretation] Thank you, Mr. President. I have
12 24 pages left. My legal advisor and I will try to cut it down unless we
13 are going to be able to present it all.
14 JUDGE FLUEGGE: In preparing for your oral submissions you should
15 have thought about the length of the presentation, the speed of
16 everything you will present. And I think you know that from February of
17 this year and you were reminded yesterday at the outset of our hearing
18 that you, as the Prosecution, will have one day, no more.
19 Mr. Gajic, I see you are on your feet.
20 MR. GAJIC: [Interpretation] Mr. President, my apologies, a small
21 intervention. As we were preparing the closing arguments, if you look at
22 the word count it roughly corresponds to the word count of the
23 Prosecution's closing arguments and I was guided by that as I was working
24 with Mr. Tolimir on our submissions. Our closing arguments even fall
25 somewhat short of that, that's to say one day's oral submissions by the
1 Prosecution. And I think we are more or less on the track and if we end
2 up short of some 15 to 20 minutes, we will kindly ask for your leave to
3 proceed until the end.
4 JUDGE FLUEGGE: I will repeat that it is necessary to prepare an
5 oral submission of a reasonable length.
6 Mr. Tolimir, you have indicated that you together with your legal
7 assistant will try to make it short so that we can finish in the time
9 We adjourn and resume quarter past 6.00.
10 --- Recess taken at 5.50 p.m.
11 --- On resuming at 6.16 p.m.
12 JUDGE FLUEGGE: Yes, Mr. Tolimir.
13 THE ACCUSED: [Interpretation] Thank you, Mr. President.
14 We will skip a portion and I'll say that we are starting from
15 item 127 for interpreters' sake.
16 In a word, it was a plan of the Muslim authorities to evacuate
17 the entire population and you can glean that from the conversation
18 between Alija Izetbegovic and the population of Zepa. Item 129, this
19 exhibit clearly demonstrates, namely D54, that the evacuation had been
20 planned secretly by the BH Federation leadership and that it had been
21 kept secret in order to accuse the VRS of attacking the civilian
22 population and driving them out.
23 Paragraph 130 reading sentence 5:
24 "Benjamin Kulovac and Hamdija Torlak have come as authorised
25 representatives for these negotiations in the manner envisaged under the
1 relevant rules of the Geneva Conventions. At this meeting Hamdija Torlak
2 stated that the best solution would be to evacuate the entire population
3 of Zepa. When asked by General Mladic whether there was anyone who
4 wanted to stay, he answered in the affirmative and said that there were
5 ten families who wanted to stay and this is proved by the video-clip
6 introduced into evidence as D108.
7 I'll now move to paragraph 132. On the other side, on the other
8 hand, the ministry of the foreign affairs of the BH Federation had asked
9 the Security Council back on the 17th of July to carry out the evacuation
10 as corroborated by D107. This is the president's letter to the Security
11 Council dated the 20th of July, 1995, which requests the Security Council
12 to, or rather, this is the release by the Security Council requesting the
13 Bosnian Serbs to co-operate in this matter.
14 Let's move on to 134, Exhibit D58. On the 24th of July, 1995,
15 the agreement on the disarmament of the able-bodied population in the
16 enclave Zepa was signed. The Prosecution deny any importance that this
17 agreement may have, that's at paragraphs 426 to 431. However, from the
18 perspective of international law this agreement is completely valid and
19 in keeping with the Geneva Conventions. Its primary role is to ensure
20 that the Zepa Brigade be disarmed, and as for the civilian population,
21 item 7 of it states, and I quote:
22 "That the civilian population of Zepa shall in keeping with the
23 Geneva Conventions of the 19th of August, 1949, and the
24 Additional Protocol of 1977 be granted the freedom of choice as to
25 whether to stay in the area for the duration of the war conflicts. In
1 other words, nobody was being expelled. It is only a matter of
2 circumstance that the agreement was stipulated in the context of combat
3 activities, but that does not detract from its validity.
4 Let us move on to paragraph 135. The role of Tolimir. During
5 the evacuation of Zepa was to work on the implementation of the 24 July
6 agreement and to make sure that the evacuation is without any incidents.
7 Tolimir was in the centre of Zepa escorting the convoy together with the
8 commander of the Zepa Brigade, Avdo Palic. And now we move on to
9 paragraph 138, this is for the benefit of the interpreters.
10 The participation of Tolimir in the implementation of the
11 evacuation of the population of Zepa in keeping with the agreement which
12 was signed on the 24th of July, 1995, the evacuation of the civilian
13 population, including some military able-bodied men, cannot be considered
14 participation in any criminal enterprise. Contrary to what the
15 Prosecution alleges in paragraph 60 under D1 of the indictment, Tolimir
16 made sure that the evacuation of Zepa was carried out without any
17 problems in keeping with the agreement that was signed on the 24th of
18 July, 1994 [as interpreted]. When it comes to the evacuation of the
19 population of Srebrenica, in that evacuation Tolimir did not play any
20 role. He did not participate in it. The only thing that he suggested
21 was to make a list of all military able-bodied men, including those that
22 were to be evacuated from the Potocari base.
23 In keeping with Alija Izetbegovic's plan, the civilian population
24 was indeed evacuated from Zepa in a safe manner and the BiH army did not
25 lay arms, but rather they continued fighting. General Smith on page
1 11597 of the transcript testified that in Belgrade Carl Bildt negotiated
2 about the transfer of the Zepa Brigade across the river Drina into
3 Serbia. This is also mentioned in Viktor Bezurchenko's report entitled:
4 "The Fall of Zepa." This is Exhibit D55. Ramo Cardakovic led the
5 transfer to Serbia. He was the Chief of Staff the 285th Brigade. The
6 Prosecutor treats that transfer of the Zepa Brigade as a crime of
7 deportation which is charged in the indictment. Exhibit D111 is the list
8 of those who had crossed the Drina and who had been treated as prisoners
9 of war in the Republic of Serbia.
10 You can see in this list that all those were military able-bodied
11 men who had been army members. For a crime of deportation it is
12 necessary for those persons who crossed the border, resided legally in
13 the territory of Zepa; however, their stay in Zepa was illegal, it was
14 contrary to the agreement of the demilitarisation of the enclave,
15 according to Article 5 of the agreement on the demilitarisation of Zepa.
16 They should not have been allowed to enter or stay in the demilitarised
17 zone. Additionally, they crossed over to Serbia of their own choice in
18 agreement with UNPROFOR members and the government in Serbia. And they
19 were guided by the representative of the international community
20 Carl Bildt. There is no single piece of evidence based on which one
21 might conclude that the VRS wanted to expel them across the border.
22 For those reasons the conditions for deportation as a crime
23 against humanity have not been fulfilled.
24 In the last paragraph of D488 it is stated, and I quote:
25 "We believe that the destruction of the convoys of Muslims from
1 Stublic and Radava, Brloska Planina the Muslims would be --
2 JUDGE FLUEGGE: I just was reminded that this is a confidential
3 document. When you quote from this document you should be aware of that.
4 THE ACCUSED: [Interpretation] I didn't understand. What document
5 is confidential? D111. Very well. I apologise. Well, you can protect
6 it. I did not understand that it was a protected document.
7 JUDGE FLUEGGE: It is D488 you asked or you referred to when you
8 started to quote from it.
9 THE ACCUSED: [Interpretation] It should be P488. I misspoke.
10 JUDGE FLUEGGE: Okay. That's clarified the situation, P488.
11 Please continue.
12 THE ACCUSED: [Interpretation] In the last paragraph of that
13 document it is stated:
14 "We believe that the destruction of the convoys of the Muslim
15 population from the directions of Stublic, Radava and Brloska Planina the
16 Muslims would be forced to surrender quickly ..."
17 First of all, when it comes to convoys, we're not talking about
18 the civilian population but about a destruction of those features that
19 might be used for -- as hiding places for the population. For example,
20 caves, different areas on the ground. Mirko Trivic testified about that
21 on transcript pages 8625 and 8626.
22 The word "convoy" does not refer to the evacuees but the features
23 on the ground that may be used for hiding, so Tolimir does not suggest
24 that the population should be destroyed as it is ascribed to him, but
25 rather places where the evacuees could hide.
1 Paragraph 152 for the benefit of the interpreters. When it comes
2 to the alleged participation of Tolimir in the alleged joint criminal
3 enterprise - and we are talking about the killing of militarily
4 able-bodied men in Srebrenica - the Prosecution bases its allegation on
5 Tolimir's position as the assistant commander for security and
6 intelligence. However, when it comes to Zdravko Tolimir's participation
7 in the alleged operation of the killings of prisoners of war, there is no
8 evidence to that effect. There can be no credible evidence. In the
9 course of this trial, not even the witnesses who struck a plea -- a
10 bargain with the Prosecution about the admission of guilt did not charge
12 Paragraph 153. When it comes to the consideration of the charges
13 that Tolimir has been charged with when it comes to the killing of
14 militarily able-bodied men in Srebrenica, it has to be mentioned that
15 Tolimir was engaged in Operation Zepa during that period of time and that
16 there is no single piece of evidence that Tolimir in the relevant
17 time-period at all knew about any operation to kill militarily
18 able-bodied Muslims.
19 Page 54 of the document that I'm reading from, where it says:
20 "In a series of paragraphs the Prosecution alleges," that is the
21 last word in the last sentence, "that Tolimir commanded, controlled, or
22 provided instructions to certain people who were in Srebrenica from the
23 12th of July onwards."
24 This is not founded at all. There is no single piece of evidence
25 to that effect. During the trial the Prosecution several times referred
1 to P112. This is the instruction on commanding the security organs of
2 the VRS. That instruction was issued in peace time due to the omissions
3 that were observed in the work of the intelligence and security organs.
4 In this document it is stated and I quote:
5 "The security and intelligence organs are under the immediate
6 command of the commander of the institutions to which they belong. In
7 professional terms they are subordinated to their superior commands.
8 When it comes to professional command and control, I'm talking about the
9 issuing -- I'm not talking about issuing orders, but rather the
10 authorities that are vested in any officer and that is to direct the work
11 of the organ and to make sure that they are properly trained. When it
12 comes to the brigade corps, the security organs are independent and they
13 perform the tasks of counter-intelligence and other tasks envisaged by
14 the relevant regulations. The assistant --
15 JUDGE FLUEGGE: Mr. Tolimir, let me interrupt you for a moment.
16 You referred to P112. You see on the screen that these are photographs.
17 It should be a different document number. Can you repeat the number,
19 THE ACCUSED: [Interpretation] P1112.
20 JUDGE FLUEGGE: Thank you. Please carry on.
21 THE ACCUSED: [Interpretation] The assistant commander of the
22 Main Staff of the VRS does not command. He only professionally guides
23 his troops and works on the tasks entrusted with him by the commander.
24 Otherwise, the principle of the singleness of command would be impaired.
25 When it comes to the control, that can only be professional control,
1 nothing else, and it doesn't imply the control of the organs of the
2 security in the course of combat activities or any other tasks. This is
3 the task of a commander. In order to control the work of the organ of
4 security or any other organ, the person who controls that work has to be
5 present or he has to be provided with appropriate reports also known as
6 the reports of the security organs. They're not sent to Tolimir but to
7 the security administration. Where Tolimir was during the evacuation
8 that he participated in, nobody was killed.
9 As for the rapport between the commander and the security organs,
10 this can be best illustrated by the testimony of the Prosecution witness
11 Keserovic, who said that on the 16th he received an order from
12 General Mladic as a security organ, he received an order from his
13 commander to go on a mission, to abort his regular activities. He could
14 not not obey that. He had to do that. He had to come back and report to
15 the commander. This illustrates the relationship with the commander and
16 the security organs irrespective of who the commander is, irrespective of
17 who is subordinated to whom. Everybody's subordinate to the commander.
18 Professional services have only a professional role that facilitates the
19 implementation of any task.
20 When it comes to the events that ensued after the fall of
21 Srebrenica, there were no such reports at all. There's no evidence that
22 Tolimir was aware of any killing operation at the relevant period and
23 that the reports were sent to him at Boksanica. That was the front line
24 facing the Muslims. That was an UNPROFOR check-point. When negotiations
25 were underway, no reports could be sent there. No reports indeed arrived
2 The Prosecution alleges in paragraph 89 of its final brief that
3 Tolimir was the only person in the Main Staff who was authorised and
4 capable of controlling the security organs and controlling them in the
5 implementation of the order to expel the civilian population and the
6 militarily able-bodied men. First of all, Tolimir did not have the right
7 to command over the security organs. Only the commanders had that right,
8 the commanders of the units to which those organs belonged, including
10 Second of all, control means presence at the location where
11 killings are being committed. Tolimir was neither in Srebrenica nor at
12 any other location where the killings were committed. During the
13 Prosecution case, we did not hear any piece of evidence, we did not hear
14 any witness testifying to the fact that Tolimir was informed about the
15 operation to kill militarily able-bodied men. We didn't hear that he
16 issued any proposals, instructions, or any other such thing involving the
17 killing of prisoners of war.
18 The Prosecution alleges that Tolimir, I quote:
19 " ... applied his professional knowledge and skills within the
20 purview of military strategy in order to co-ordinate the work of
21 intelligence and security organs and agents ..."
22 That is in paragraph 2 of the final brief. This also involved --
23 the military police that were used in order to implement that goal."
24 And this is a reference to objectives contained in the allegation
25 about the joint criminal enterprise. The Prosecution does not have any
1 proof for this allegation.
2 Under the law, Tolimir has no right to command the
3 security/intelligence organs or police organs; they're all subordinated
4 to their respective commanders. We're going back to Keserovic's example,
5 who appeared here as a Prosecution witness, who had to carry out the task
6 given by the commander and then had to come back and report to him and in
7 the process he had to suspend his activities in training police forces.
8 I am reading paragraph 167. In other documents cited by the
9 Prosecution supporting the alleged contribution of Tolimir to the killing
10 operation is the Defence Exhibit D49, which is a document sent by Tolimir
11 from Zepa on the 13th of July, 1995. It clearly confirms that Tolimir
12 had no knowledge whatsoever about the alleged plan for killing prisoners
13 of war. Please, document D49. It clearly shows that Tolimir did not
14 have any knowledge about the alleged plan to kill prisoners of war.
15 In paragraphs 572 to 585, the Prosecution is making a speculation
16 and offering completely unreasonable conclusions. First of all, in this
17 document Tolimir says, and I quote:
18 "If you are not able to provide appropriate accommodation for all
19 prisoners of war from Srebrenica," this part of the sentence indicates
20 that Tolimir is not addressing the issue of the accommodation of
21 prisoners of war in Srebrenica, but that this is being done by somebody
22 else. This sentence only indicates that Tolimir has no responsibility
23 and no duties with respect to prisoners of war of Srebrenica.
24 Secondly, Tolimir insists on appropriate accommodation and that
25 can only be construed as accommodation that would be in compliance with
1 the rules of the Geneva Convention which was explained in the final
2 brief. Tolimir also says that in the facilities of the 1st Light Brigade
3 there are proper accommodation facilities that can house 800 prisoners of
4 war. Witness Carkic on transcript page 12740 testified that the
5 facilities in Sjemec were used for a certain period of time as billeting
6 facilities for one of the Rogatica Brigade units. Therefore, the
7 Prosecution's allegation that the accommodation was not suited for -- to
8 its purpose was unfounded.
9 Thirdly, this document was sent in the evening of the 12th July
10 1995 at around 10.00. This cannot be interpreted as the fact that
11 Tolimir was informed about the killing operation or about any unlawful
12 treatment of prisoners of war.
13 THE INTERPRETER: Interpreter's correction: 13th of July.
14 THE ACCUSED: [Interpretation] As for the Prosecution's assertions
15 that Tolimir warned about the drone, he in fact informed combat organs
16 that had capacity to destroy such aircraft. In that period, the VRS was
17 under the threat from air attacks. This is document 128 which was sent
18 only to the Drina Corps command and not to intelligence and security
19 organs. As I said, the VRS was in the said period exposed to threat from
20 NATO and therefore the information about drones was something that was
21 regularly provided, which can be seen from Exhibit P1216, issued by
22 Milenko Zivanovic on the 5th of July, 1995, who was the commander of the
23 Drina Corps, which means that this was one day before the commencement of
24 Krivaja operation. The document reads:
25 "Due to the possibility of NATO air-strikes, all subordinate
1 units of the Drina Corps" -- so I repeat.
2 "Due to the possibility of NATO air-strikes and the operations
3 conducted by Rapid Reaction Forces around the enclave, particularly
4 around the enclave of Srebrenica and with a view to providing protection
5 to our forces from air-strikes with the focus in the general area of
6 Srebrenica, all subordinate units of the Drina Corps and all
7 anti-aircraft units within subordinate units as well as the available
8 small arms and common weapons shall be placed at full combat preparedness
9 in order to act in a timely manner against enemy aircraft and thereby be
10 ready to operate with all available weapons to attack helicopters used by
11 Rapid Reaction Forces in order to prevent flights over the front lines
12 and thereby risking the safety of our forces in depth, open fire at
13 aircraft and helicopters without seeking particular approval. The
14 allegation that --
15 THE INTERPRETER: Can Mr. Tolimir please repeat for the benefit
16 of the interpreters.
17 THE ACCUSED: [Interpretation] I'm reading paragraph 177.
18 Following a completely unreasonable conclusion contained in
19 paragraph 769 of the Prosecution's final brief in which the Prosecution
20 makes reference to an intercept of the conversation between Tolimir and
21 Popovic has nothing to do with prisoners of war of Srebrenica, namely,
22 I'm talking about P765 which states that Popovic was inquiring about a
23 relative of his who had been taken prisoner. However, the Prosecution
24 extracted only one portion of that intercept and draws from it completely
25 unreasonable conclusion. The relevant portion reads:
1 "Popovic: I am today in my base and I have some things to
2 complete, therefore I remained here. Tolimir is doing his job," which
3 means that Tolimir was in the base and not out on the ground.
4 Now the most striking example of speculative arguments is
5 something that the Prosecution stated in terms of interpreting the words
6 "he's doing his job" as a criminal order. This document clearly shows
7 that Popovic was in his barracks, in his office, and that he spent the
8 whole day there. This conversation cannot be used as proof that Tolimir
9 gave any order to Popovic with regard to prisoners of war of Srebrenica,
10 particularly not what is being cited by the Prosecution in paragraph 775
11 in their final brief.
12 The Prosecution charges Tolimir for supervising the 10th Sabotage
13 Detachment on the 16th July and 23rd July while they were committing
14 murders in Branjevo and Bisina. First of all, there is no evidence
15 indicating that Tolimir was aware at all with the activities of members
16 of the 10th Sabotage Detachment at any location. Viktor Bezruchenko says
17 that on the 16th of July Tolimir sent information from Zepa. Secondly,
18 the sabotage detachment, as explained earlier, was an independent unit of
19 the Main Staff and it was directly subordinated to the commander. This
20 was testified to by Petar Salapura and Petar Skrbic. There is not a
21 single shred of evidence that Tolimir either commanded or made any
22 decisions with regard to the engagement of this detention.
23 THE INTERPRETER: Interpreter's correction: Detachment.
24 THE ACCUSED: [Interpretation] I will take you up on your offer
25 and I will read the rest of the document, about ten pages tomorrow.
1 Tolimir mentions, or rather, the Prosecutor speculates about
2 Tolimir's participation in the joint criminal enterprise, namely,
3 killings. On page 20, lines 14 and 15, the Prosecutor alleges that
4 Tolimir knew that Beara was in the Drina Corps. In the relevant
5 time-period Beara was subordinated to the Drina Corps and this
6 information is -- was available to all sector members, but Beara did not
7 report to Tolimir. He did not information Tolimir. It is unfounded when
8 the Prosecution alleges that Tolimir supervised Beara and that Tolimir
9 knew what Beara was doing, and this is what the Prosecutor said in the
10 final brief on 27, that Beara called Krstic. Why didn't he call Tolimir?
11 The Prosecution suggests speculatively that he didn't do that for his own
12 reasons. However, Beara could not report to Tolimir because Tolimir
13 never sent him on a mission and he was not accountable to Tolimir for the
14 tasks that he was assigned to. He was subordinated to the Drina Corps
15 and he reported to the Drina Corps.
16 The Prosecution does not have a single piece of evidence about
17 any communication between any of the participants in the events of the
18 killing on the one hand and Tolimir on the other, and he doesn't have a
19 single proof of evidence about Tolimir's activity in that.
20 There is also speculation about Tolimir having criminally
21 prosecuted two members of the Fojnica Brigade for having helped Muslims.
22 There is no single piece of evidence that Tolimir had filed a single
23 criminal report and that he prosecuted any members of the Army of
24 Republika Srpska for having helped Muslims.
25 The security organs are not -- were not involved in criminal
1 prosecution activities through Tolimir. Tolimir was never involved in
2 any legal matters [as interpreted]. It is -- the security organs did
3 that directly in co-operation with the prosecutor's offices.
4 JUDGE FLUEGGE: Just for the record, I think there is a problem
5 in page 75, lines 23 and 24. I read:
6 "Tolimir was never involved in any legal matters."
7 Is that what you were saying, Mr. Tolimir?
8 THE ACCUSED: [Interpretation] Tolimir was not involved in filing
9 criminal reports. He never prosecuted anybody. Security organs did not
10 do that through Tolimir. Security organs co-operated with prosecutor's
11 officers. Tolimir was not involved. Security organs co-operated
12 directly with the competent prosecutor's offices and courts. This is
13 what I said in my conclusion if that is what you had in mind when you
14 intervened. Thank you.
15 The Prosecutor in a number of their conclusions referred to the
16 testimony by Milenko Todorovic and his statement that Tolimir had told
17 him that he would come to Batkovic to see 1200 prisoners. Tolimir never
18 said that. Todorovic could never confirm that. He didn't know when he
19 spoke to and who he spoke to. So his allegations are unfounded.
20 Todorovic himself in his testimony on the 20th of April, 2011, when he
21 was faced with the Exhibit D226 on transcript page 13141 said:
22 "Thank God I can finally see the document that shows, or rather,
23 about which we have spoken at such a length."
24 He did not see that the document was issued in 1993. However, he
25 saw that he was issued on the 16th of July. The document was signed by
1 the chief of staff General Manojlo Milovanovic, which points to the fact
2 that Todorovic's recollection about who he had spoken to is not reliable
3 enough. Additionally, Todorovic's commander, Novica Simic, who was also
4 a witness in this case, or rather, in the Popovic case, and his testimony
5 was adopted through 92 quater rule, he testified in the Popovic case and
6 the transcript from that trial was adopted as Exhibit P2756, and the
7 relevant transcript pages are 28565 through 28570. Novica Simic within
8 the context of the topic of prisoners of war from Srebrenica did not
9 mention Zdravko Tolimir. However, he spoke about who he controlled, how
10 he controlled them, who he contacted, and how he made sure that a certain
11 number of prisoners of war were accommodated in the reception centre in
13 I would like to conclude for today, the Prosecutor's assumption
14 that Mladic and Karadzic Tolimir -- ordered Tolimir to manage and control
15 the killing operation is not corroborated by any evidence. It is just an
16 assumption which serves to deceive this Trial Chamber and the general
17 public about Tolimir's participation in these killings. It is true that
18 Mladic and Karadzic never provided Tolimir with any order with regard to
19 the killing of prisoners of war. There's no single piece of evidence to
20 prove that. There cannot be such evidence because it simply did not
22 JUDGE FLUEGGE: Mr. Tolimir, does that conclude your presentation
23 of today?
24 THE ACCUSED: [Interpretation] Well, what remains is something
25 that I would like to summarise in 15 or 20 sentences in the ten minutes
1 that you will grant me as you promised, if you think that this would be a
2 good ending to my closing argument.
3 JUDGE FLUEGGE: We can't do that today because we are at the
4 limit and we can't sit longer than 7.00, but I think it's for your
5 benefit to conclude your presentation tomorrow. We will have a sitting
6 in tomorrow afternoon and at the beginning you should sum up and conclude
7 your presentation, and then you have some time to think about that again
8 tomorrow in the morning and to finalise your oral presentation. I think
9 it's better than today to rush through the remaining part of your
11 Would that be acceptable for you?
12 THE ACCUSED: [Interpretation] Thank you, Mr. President. I
13 believe that I will manage to finalise my closing argument tomorrow
14 within 15 minutes. I apologise once again to the interpreters and to
15 you. Thank you.
16 JUDGE FLUEGGE: Thank you very much.
17 Then we will have the following programme for tomorrow. First
18 the closing of the closing arguments, the remaining part, in 15 minutes;
19 then rebuttal by the Prosecution; if possible, rejoinder by Mr. Tolimir.
20 It's up to you and you may decide tomorrow what to respond to the
21 Prosecution. And that -- in the end we have to deal with some documents
22 which are MFI'd and we have to decide how to deal with them, as I
23 indicated yesterday, and I hope the parties will be prepared to discuss
24 this matter.
25 We adjourn and resume tomorrow at quarter past 2.00 in this
2 --- Whereupon the hearing adjourned at 7.03 p.m.,
3 to be reconvened on Thursday, the 23rd day of
4 August, 2012, at 2.15 p.m.