Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7568

1 Wednesday, 14 April 2004

2 [Open session]

3 [Defence Opening Statement]

4 [The accused entered court]

5 --- Upon commencing at 9.01 a.m.

6 JUDGE LIU: Call the case, please, Mr. Court Deputy.

7 THE REGISTRAR: Good morning, Your Honours. This is Case Number

8 IT-02-60-T, the Prosecutor versus Vidoje Blagojevic and Dragan Jokic.

9 JUDGE LIU: Thank you.

10 Good morning, ladies and gentlemen. Welcome back to this trial.

11 Today we'll start the Defence case. And Mr. Blagojevic's counsel will

12 deliver the opening statement.

13 Mr. Karnavas, are you ready for that?

14 MR. KARNAVAS: Yes, I am, Mr. President.

15 JUDGE LIU: Yes, you may proceed.

16 MR. KARNAVAS: Thank you.

17 Good morning, Mr. President, Judge Argibay, Judge Vassylenko.

18 Having sat here for months listening to the Prosecution's case, we are all

19 generally familiar with the nature of the case, many of the central

20 characters, and much of the documentary evidence amassed by the Office of

21 the Prosecution over the last seven to eight years. We have heard from

22 all of the Prosecution witnesses, all of their witnesses that they claim

23 proved through their testimony, that Vidoje Blagojevic is guilty of each

24 and every element, of each and every count in the indictment. We've also

25 had the benefit of the Trial Chamber's assessment of the Prosecution's

Page 7569

1 case in-chief, an assessment that rendered significant portions of the

2 indictment as unproved, unsubstantiated and untenable.

3 We thank the Trial Chamber for its findings, though we understand

4 the Prosecution is of the opinion that the Trial Chamber has erred in its

5 findings and is seeking certification to appeal the judgement on the

6 motion of acquittal. We take no position and leave this matter to the

7 Trial Chamber's discretion, though as it would be expected of any diligent

8 counsel, knowing that the Prosecution is or vigorously will reverse the

9 Trial Chamber's findings of fact or conclusions of law, particularly

10 relating as to the issue of joint criminal enterprise, the Defence has no

11 choice but to put on a full Defence, to make a complete record, and to

12 challenge every aspect of the Prosecution's indictment, much as if the

13 Trial Chamber had denied in toto the Defence's Rule 98 bis motion.

14 Now, while I'm on the subject of the Rule 98 bis motion, I should

15 also note that the Defence regrettably was also somewhat disenchanted.

16 Inexplicably, the Trial Chamber, in our opinion, failed to reject

17 paragraphs 46.10 and 46.11 in the indictment which respectively deal with

18 Branjevo Military Farm and the Pilica cultural centre incidents. The

19 Prosecution's evidence on those particular incidents failed and failed

20 miserably to rise to the level of the standard laid out --

21 JUDGE LIU: Yes.

22 MR. McCLOSKEY: I'm going to object.

23 JUDGE LIU: Yes.

24 MR. McCLOSKEY: This is not proper opening statement. This is

25 some kind of argument involving legal judgements of your decisions, which

Page 7570

1 is inappropriate, challenging the Prosecution's case in a demeaning way.

2 That's not a proper opening statement. It is designed to tell what his

3 case is and argue his case.

4 JUDGE LIU: Well, Mr. Karnavas, I believe that this is only the

5 introduction to your whole outline of your case.

6 MR. KARNAVAS: Your Honour --

7 JUDGE LIU: So I hope you could just skip this part and come to

8 your case directly. You have full chance to challenge the decisions made

9 by this Trial Chamber by other means.

10 MR. KARNAVAS: Your Honour, I do not intend to challenge the

11 Trial Chamber's decision. The Prosecution may be disgruntled and

12 dissatisfied at the Court's judgement; I am not. I'm merely pointing out

13 that there is a portion in the indictment which they failed to prove,

14 which they conceded and confessed error to, which they did not raise in

15 the judgement -- their response in the judgement of acquittal, and that is

16 a prelude to my opening remarks regarding what we intend to show in the

17 evidence. However, in light of the Court's remarks, I will move on.

18 With this backdrop in mind, during my opening remarks, I will

19 briefly - unlike the Prosecution's two-day opus of its opening statement,

20 much of which there were empty promises of a rush to judgement - I will

21 briefly lay out the historical and evidentiary antecedents that undergird,

22 connect, if you will, the Defence's submission about the nature of the

23 Prosecution's case or lack thereof, as it were. And I will provide the

24 overall indicators what the Defence evidence will show, that reinforces

25 the basic conclusions which the Defence will be asking the Trial Chamber

Page 7571

1 to reach, after having heard and assessed all of the evidence, and that is

2 that Vidoje Blagojevic is not guilty under Article 7.1 or Article 7.3 of

3 the Statute on any of the charges in the indictment, and that specifically

4 he was not at any point in time a member of any joint criminal enterprise,

5 that he did not participate directly or indirectly in any atrocities, that

6 he was not involved, directly or indirectly, in the alleged forcible

7 transfer of any of the Muslim population from Srebrenica, and he did not

8 aid and abet in any of the criminal activities, either before, during, or

9 after the fact.

10 Though the Prosecution has not charged the attack on Srebrenica as

11 a crime, it nonetheless argues as a basis of the charge of genocide and

12 forcible transfer that the RS government and the VRS government had

13 long-term designs to ethnically cleanse that area. In making this

14 argument, which appears the Trial Chamber has in part relied upon in

15 concluding in the judgement of acquittal findings that Vidoje Blagojevic

16 was a member of a joint criminal enterprise to forcibly transfer the

17 Srebrenica Muslim population, the Prosecution has deliberately shied away

18 from presenting certain evidence which would put proper perspective on the

19 events related to the attack on Srebrenica and the evacuation of the

20 population in Srebrenica.

21 As part of the Defence, we intend to introduce evidence available

22 to the Prosecution for all these years that will demonstrate that it was a

23 necessary and a military -- it was military sound to attack Srebrenica,

24 that the enclave was used as a staging ground to commit atrocities against

25 Serbs living in the area in order to drain the VRS of valuable military

Page 7572

1 assets. Through a steady stream of low-intensity attacks, the Muslim

2 forces, small as they were inside Srebrenica, were able to pin down

3 virtually the entire Drina Corps. It is important that we understand this

4 event, particularly with respect to the timing of this incident, because

5 the war is coming to an end, negotiations are going on, the Muslim forces

6 are growing, we've heard Butler already tell us that the international

7 community, including the United States, was shipping arms to the Muslims

8 and to the Croats. The Muslim army was getting ready to attack and

9 history has proved there was also another attack from another front and

10 that was in the Krajina. And this was fairly well-known on the ground.

11 The attack was thus necessary in order to stop these atrocities

12 which were being committed with impunity, with impunity, and I underscore

13 that, because they are not lodged in the indictment against Mr. Oric, and

14 Mr. Izetbegovic was never charged, though after eight years they did say

15 that they were investigating. So these crimes were being committed with

16 impunity and under the full protection of the UN. But also this attack

17 was necessary to free up several brigades at a time when it was becoming

18 increasingly clear that the Muslims were about to launch the offensive, of

19 which I spoke about and of which Richard Butler, the Prosecution's star

20 military witness, a member -- of a long-term member of the OTP's team on

21 this case, admitted.

22 So when we look at the stated goals of Krivaja 95, the Drina Corps

23 order of 2nd July, 1995, and the 5 July order of Vidoje Blagojevic, the

24 then-commander of the Bratunac Brigade, we see that the stated goals were

25 limited in nature. They did not include the taking of Srebrenica, a

Page 7573

1 matter that was ultimately to occur, but as the evidence will show through

2 our own witnesses, and some of which has been shown already through the

3 Prosecution, that this was an unexpected surprise, that is, the fall of

4 Srebrenica. This is relevant to stress at this point in time, because as

5 we will hear from the witnesses, from witness after witness after witness,

6 witnesses again which I stress were available to the Prosecution. If we

7 were able to interview almost 80 witnesses in one month, surely the

8 Prosecution after seven years would have been able to get some of these

9 witnesses.

10 These witnesses will tell us about the chaos and the lack of

11 organisation and the confusion that existed in Potocari on the 12th and

12 13th of July and thereafter, which is a by-product of a total lack of

13 planning, not as an as a result of a planning, as has been argued by the

14 Prosecution as part of its historical analysis.

15 JUDGE LIU: Yes.

16 MR. McCLOSKEY: It's a misstatement of fact. It's a misstatement

17 of the Prosecution's case. He argued that in his brief and I'm sorry to

18 interrupt now, but the Prosecution has never suggested that Potocari was

19 some sort of a planned event. And we may be able to save some time, that

20 it's never been part of the Prosecution's case, nor has the

21 Prosecution -- have any major disagreement with the attack on the enclave

22 being a legitimate military target. So constant talk of -- this is --

23 unlike what he is saying is not objected to by the Prosecution and it's a

24 misstatement of the Prosecution and the facts of this case.

25 MR. KARNAVAS: Your Honour, if I may respond.

Page 7574

1 JUDGE LIU: Let me say a few words.

2 MR. KARNAVAS: Very well, Your Honour.

3 JUDGE LIU: I think during the opening statement, the other

4 parties should not intervene unless there is a mistake or error of the

5 facts in that statement.

6 Secondly, Mr. Karnavas, please concentrate on your case, other

7 than directing your spearhead against the other party. Because we get

8 your point. You have a point, and just put it there.

9 MR. KARNAVAS: Very well, Your Honour. Now, if I may briefly

10 respond to the Prosecution.

11 JUDGE LIU: Do you think it's necessary?

12 MR. KARNAVAS: Well, I thought it was, but in light of your

13 remark, Your Honour, I will move on.

14 JUDGE LIU: Please move on.

15 MR. KARNAVAS: Very well.

16 As I was speaking about the fall of Srebrenica and the chaos and

17 the lack of planning that ensued thereafter, that the fall of Srebrenica,

18 in spite of the wishful expectations of some sort of a victorious campaign

19 on the attack of Srebrenica, the taking of the Srebrenica, and the

20 elimination of the enclave was never anticipated, and certainly was not

21 part of the original goals that were stated in the various orders. And I

22 stress that, Your Honours, because again I have to ground part of my case

23 and part of my opening remarks and my argument throughout the trial based

24 on what I read in the Court's assessment of the facts and the judgement of

25 acquittal. Because it would appear that there is some weight given to

Page 7575

1 some historical background as a basis of them finding that Mr. Blagojevic

2 was a member of a joint criminal enterprise for the -- for forcible

3 transfer, and that's why I'm going into this. But with the admissions of

4 the Prosecution, hopefully we can streamline the whole process.

5 In any event, during the attack on Srebrenica, who would have

6 imagined that the Muslim forces would have abandoned their positions and

7 head towards Tuzla, and who would have imagined the DutchBat to totally

8 collapse and the UN fail to intervene as a result of its own convoluted

9 rules of engagement; all of which contributed to this chaos that ensued in

10 Potocari and this chaos that we must now try to unravel, and we will try

11 to do so through our case. And we will talk a little bit about one

12 particular witness who was available, will be here, and will be testifying

13 as to certain events.

14 Now, again reading the Prosecution's case, as I understand it from

15 its evidence and its positions that they have stated, in validating its

16 supposition that the attack on Srebrenica was part of an unlawful plan to

17 forcibly transfer the entire Muslim population in the enclave, the

18 Prosecution hinges its argument in part on the rapid mobilisation process

19 of buses and trucks, the availability of scarce fuel, and the swiftness

20 with which the transfer occurred. And again, the Prosecution has failed

21 to put the events into context and proper perspective by failing to

22 recognise the concept of All People's Defence. As part of the defence, we

23 will introduce witnesses which were available to the Prosecution, had they

24 been so inclined to truly understand the events on the ground, and these

25 witnesses will explain this concept of All People's Defence, a concept

Page 7576

1 which Richard Butler admitted he had little knowledge of or use of in

2 its - to put it in his parlance - synthesis and analysis of the facts in

3 writing his voluminous report.

4 We believe this concept of All People's Defence is necessary and

5 essential for the Trial Chamber to understand how it is, under those

6 circumstances, that so many buses and trucks were able to come from

7 various parts, where the fuel was able to come, on such a short period of

8 time, all of which will assist the Trial Chamber, we believe, in

9 understanding, and hopefully coming to the conclusion that the fact

10 that -- that irrespective of the fact that there was a swift mobilisation

11 process, this was hardly a planned activity, that one can then look at and

12 say that there is a joint criminal enterprise that was planned and now

13 it's being executed and Blagojevic is a member of that plan and is a

14 member of that joint criminal enterprise. We're still not out of the

15 woods on that issue, and that's why we need to hammer away with it and we

16 will with these witnesses. We will introduce the legislation through this

17 witness, the binding legislation that was in existence. We will even

18 bring in a witness who had his own bus commandeered, mobilised against his

19 wishes, who was a member of the Bratunac Brigade and then decided that he

20 would drive his own bus rather than let someone else drive it for him,

21 because he did not want his property abused.

22 So we will have some firsthand knowledge about this, and hopefully

23 we will put these matters to rest. Because it's essential to understand

24 that this concept of All People's Defence existed for decades, that the

25 citizens of the former Yugoslavia were grilled on their own obligations

Page 7577

1 and duties in providing assistance to the state in time of need and when

2 called upon to do so. And as the evidence has shown and as the evidence

3 will also show, there was a call for mobilisation, hence why the trucks or

4 the buses, wherever they were going, turned around and headed towards

5 Potocari, as they were ordered to by the lawful authorities. And these

6 authorities were not military, they were civilian and was part of the

7 civilian process. And as I indicated, hopefully the Trial Chamber at the

8 conclusion of all of this evidence with respect to the mobilisation

9 process, the All People's Defence, will come to appreciate how it is that

10 the trucks and buses were able to appear in Bratunac on such short notice.

11 Another significant portion of the Prosecution's argument,

12 particularly as it relates to forcible transfer, is that soldiers of the

13 Bratunac Brigade were in Potocari, and accordingly and undoubtedly, were

14 involved in criminal activity. As part of the Defence, we intend to call

15 as many as those identified in Potocari on the 12th and the 13th July,

16 1995, so that they may appear before the Trial Chamber to explain their

17 activities. Who ordered them, if anyone? What did they do? How long did

18 they stay? What did they hear? What did they see? What was their sense

19 of what was going on and who was in charge?

20 We would like, irrespective of the Rule 92 bis, to bring every

21 single one of those individuals here. We have tracked down as many as we

22 can. These folks, incidentally have been out there in the open, in

23 Potocari or Bratunac or Srebrenica, within the driving distance, available

24 to the Prosecution, had they wished to bring them in their case in-chief,

25 and we stress this because there has been significant argument by the

Page 7578

1 Prosecution that they were there because they were ordered and they were

2 there committing crimes or they were there assisting in the commission of

3 crimes, aiding and abetting, perhaps unknowingly, but nonetheless they

4 were there as part of some joint criminal enterprise that existed within

5 an inner sanctum of the Main Staff, Drina Corps, and Bratunac Brigade in

6 particular, as it relates to Vidoje Blagojevic. So we would like to bring

7 each and every one of these individuals. And you will hear from them,

8 just as you will hear from a number of military police who were there.

9 Some, we will hear, were there because they were providing

10 security to General Mladic, who was on the go, moving from here to there,

11 both on the 12th and the 13th. Now, they are significant, they are

12 significant, because they will be able to describe to us, at least when

13 they were with General Mladic, what they heard, when they heard it, where

14 they heard it, what their impressions were. This is particularly

15 important with respect to the events of 13th July, 1995, because we will

16 hear that on that particular day, they were driving around and on occasion

17 General Mladic would stop and would speak to some of the Muslim males that

18 had been captured and would deliver these speeches, which they believed at

19 the time, given the forcefulness with which these speeches were given and

20 given their understanding of General Mladic as a no-nonsense military man,

21 that what General Mladic was representing to everyone was that they would

22 be safe and that they would eventually be transferred away to a safe area.

23 And this is significant because of the Prosecution's continuing argument

24 that they were in the know that all of these people were going to be

25 executed.

Page 7579

1 It's also important because it ties into another storyline that we

2 have brought out throughout the Prosecution's case through one when we

3 introduced a particular document by -- that relates a conversation from

4 Mr. Kovac, where he says on the 13th of the afternoon he witnesses an

5 event in Vlasenica, which are the headquarters of the Drina Corps, where

6 it would appear at that point in time General Mladic loses his composure

7 and starts screaming on the phone, "Kill them all, kill them all," which

8 is what we believe relevant in this case and is actually what we believe

9 is the starting point of the planned thereafter executions of those that

10 had been captured. We believe that it is relevant because it goes to the

11 issue, of course, of genocide and also as to the issue of the involvement

12 of the members of the Bratunac Brigade. So we will hear from them.

13 Other military police were there in Potocari, we will hear,

14 because of Momir Nikolic. Interestingly enough, we will hear from two

15 gentlemen who saw Momir Nikolic on the 12th, in the morning, dressed in

16 his usual, you know, fine manner, pressed, starched military outfit, Ray

17 Ban sunglasses, where he invited them to Potocari to take a look, and they

18 will describe being with him, lo and behold, in a blue vehicle, being

19 driven by someone else which we believe was the rightful owner of the blue

20 vehicle, which has come into question, particularly as we heard from

21 Mr. Franken. So they will come in and they will testify and in essence

22 put to rest the nonsense we heard from Mr. Nikolic that he was the

23 coordinator of all these units, which by the Prosecution's main witness,

24 military witness, has already told us, many of those units never were

25 there according to his knowledge of the events after seven or eight years

Page 7580

1 of looking at documents.

2 They will also -- these two individuals, interestingly enough,

3 will also talk about an incident that they observed on the morning of the

4 14th of July, 1995, when they happened to go to the Kravica agricultural

5 centre, where they will describe that at that time they witnessed

6 executions going on. The gentleman will indicate to us that they did not

7 recognise the individuals, they did not recognise the uniforms, that they

8 were not recognised themselves, and they are convinced beyond any doubt

9 that these were not members of -- or even residents of the Bratunac area,

10 but certainly not members of the Bratunac Brigade. And they will describe

11 not only what they saw but who they informed afterwards. And mind you

12 this is the 14th of July, which is after the events that we know of that

13 occurred on the afternoon of July 13th. With that particular incident, we

14 do have one individual known to the Prosecutor, they spoke to. He wasn't

15 there at the time, at the actual time, when the initial killing took place

16 of the Serbian military police officer and the initial outburst of

17 gunfire, but he was there a few moments later because he had been in the

18 vicinity. He will come and he will testify as to what he saw and what he

19 heard before, during, and after. Because this gentleman went to the

20 scene, upon hearing the shots and actually assisted in transporting one of

21 the individuals to the hospital, an individual who it's my understanding

22 is no longer with us. So anyway, he will provide valuable information,

23 and again we believe it necessary to lay to rest any claims by the

24 Prosecution that these were members of the Bratunac Brigade or soldiers of

25 the Bratunac Brigade participated in this and so on and so forth.

Page 7581

1 We will also bring in some military police, either through viva

2 voce or through their statements that will tell us that they were part of

3 the curious. The curious are what I would call those who went to Potocari

4 to see what was going on, because after all this was a rather unusual

5 event. And they will tell us how they got there, what they saw, and what

6 they did. We want to bring them here for two reasons. One, we believe

7 that the Prosecution should have the full and fair opportunity to

8 cross-examine them, to vigorously cross-examine them. If they couldn't

9 find them, we found them for them. So they can't have any excuses.

10 They're here, they can cross-examine them. Also, we believe that they

11 should come here because you as Judges should be able to ask questions and

12 also gauge their demeanor and make your own assessments. As we've

13 indicated before, we never -- we have nothing to hide and we want to bring

14 in as many witnesses as possible, especially to testify viva voce.

15 We will also bring in soldiers that were identified on the video

16 and were commented on by Mr. Butler. As we might recall, Mr. Butler

17 talked about these significant - I believe that was the word that he

18 used - the significant number of Bratunac Brigade soldiers that were

19 there, and he pointed out the one particular individual who gave an

20 interview. This particular interview -- individual was in fact questioned

21 by the Prosecution, lives in Bratunac, is available, will come here, will

22 testify, will tell us what he was -- why he was there. He was a

23 commander, there were some men with him. He will tell us exactly how it

24 is that he got there, what he was doing, what he did, how long he was

25 there, where he left, and so on and so forth.

Page 7582

1 Again, we believe that the greatest legal engine to get to the

2 truth is cross-examination. We want the Prosecution to have at them, to

3 vigorously cross-examine them, to try to tear apart their stories, to try

4 to tear apart their observations, but also to give you a full and fair

5 opportunity to make your own judgement as to what they were doing.

6 Because the evidence will show that these witnesses were there, not

7 because they were ordered by Mr. Blagojevic and not because they were

8 ordered to do anything. They were there, either passing through or as

9 part of the curious, and they did nothing, nothing at all. And as we have

10 argued before and we will argue throughout, that their mere presence

11 alone, the fact that they went there as curious, as part of the curious is

12 not in and of itself a crime and should not reflect in any way on

13 Mr. Blagojevic as a commander -- as their commander. And neither should

14 Mr. Blagojevic be held accountable for the fact that they went to Potocari

15 to have a look at what was perhaps the greatest spectacle going on in that

16 part of their little world during that part of the war.

17 The Prosecution has argued that Vidoje Blagojevic would have been

18 responsible for the prisoners in Bratunac. Again, throughout their

19 case - and mind you they have had seven or eight years to prepare

20 it - they have been unable to answer how it is that those people got

21 there, who ordered them, who was responsible. A rather critical question,

22 might I say, but they have not been able to provide us any concrete

23 answers. We heard from Mr. Deronjic, we heard about his authority.

24 Obviously he didn't exercise it, obviously the Prosecution has disinclined

25 to find that he was responsible in any way for those events, but we will

Page 7583

1 hear evidence and we will hear from a particular military police officer

2 of the Bratunac Brigade who happened to be ordered by Nikolic,

3 Momir Nikolic, to go to Potocari to assist. And one of the reasons he was

4 there, as we will hear from these witnesses, they were there to protect

5 the -- one -- in part they were there to protect the Muslim population

6 that had come down, because we have to keep in mind - and I had to stress

7 this somewhat during the Prosecution's case - that these killings by the

8 28th Division of Serbs had caused a great deal of animosity, and a great

9 deal of families had suffered losses. So it would be expected that the

10 residents of that area would want to extract revenge. So it was necessary

11 to protect them, and I think, at least at the outset, we will see through

12 the evidence, from the witnesses, that General Mladic was rather insistent

13 that everyone there be treated fairly.

14 But we will see a witness from the Bratunac Brigade, military

15 police, who when he got to Potocari was ordered by Momir Nikolic to report

16 to, to report to, Colonel Jankovic, who now we understand is in Beijing.

17 We certainly would like to take his deposition or bring him over here, but

18 he was ordered to Colonel Jankovic, who then -- according to this witness,

19 he will come and he will testify that in his belief he was at that point

20 subordinated to Colonel Jankovic, who is a member of the intelligence

21 organ of the Main Staff, not security but intelligence. He will state

22 that Colonel Jankovic had asked him and had asked a civilian police

23 officer, so military and civilian, to be taking accounting of everyone

24 going on to the buses, so they would have a rather accurate accounting of

25 how many people were transported out. And he will talk about that

Page 7584

1 process. He will give us a rough approximation of how many he believed

2 were transported, because he will state that after a while it became too

3 cumbersome to count everyone individually, so that it was just an

4 approximation based on the size of the bus and how full it was. But what

5 is telling about this witness and what he will tell us and what I think

6 will be interesting to hear is the fact that in the afternoon of the 12th

7 he observed the male population that had been separated, that

8 Colonel Jankovic was -- had instructed, not that the Bratunac Brigade

9 military police were involved in that, but that was what was going on, but

10 he would say that rumbling could be heard, that there was a sense of

11 restlessness, and clearly they were beginning to become concerned. And

12 the men, the Muslim men, were beginning to become rather vocal at that

13 point in time and thinking that perhaps something evil would come to them.

14 And Colonel Jankovic, in an effort to -- what this gentleman believes from

15 his observations of course, Colonel Jankovic in an effort to appease or to

16 calm down many of the males then ordered several buses - he believes that

17 there were about ten, perhaps more buses - to be filled with men, this is

18 in the afternoon of the 12th, to be taken to Bratunac. So now for the

19 first time we will have a witness available to the Prosecution in Bratunac

20 who will come here and who will testify that he heard Colonel Jankovic

21 give the order. He, among others, will talk about guarding some of those

22 buses on the 12th as well as on the 13th. There's no denying that. He

23 will talk about there were other units, units that he was totally unaware

24 of. And this witness will tell us that based on what he heard General

25 Mladic say, based on what he was doing, which was taking an accounting,

Page 7585

1 which he did also for the men incidentally, based on what he was told to

2 do, which was guard the prisoners, it was his firm belief at all times

3 that they were being guarded so they could be taken away at some point in

4 time after first the women and children would be evacuated. And if my

5 memory serves me correct, this gentleman will also tell us about being on

6 the bus on the morning of the 14th and taking a ride. He was ordered to.

7 He will talk about the lack of coordination. He will talk about

8 that it was virtual chaos on the evening of the 13th, and that it appeared

9 that no one was in charge but that he had orders to go and guard those

10 buses. And again we will hear from some of them -- I'm willing to bring

11 in every single one of these individuals if the Court wishes to hear from

12 them. So just because they're on 92 bis, I don't want to give the

13 impression that we're trying to hide anything. They're available, we can

14 bring them. But we will hear from them how it is that they were ordered

15 to go there. And also we will talk about that these individuals had

16 families in that area. And they legitimately also felt fear for their

17 families and for their own protection, which is another reason why many of

18 them went there when ordered to do so to take up guard duty and to secure,

19 because it was a security for two reasons. One to protect those who were

20 in the buses, as well as to protect, most likely, the more important role

21 was to protect themselves, because they were being outnumbered. And they

22 will tell us how outnumbered they were and who exactly was guarding them.

23 So at least we might be able to solve a piece of the puzzle. And

24 since I'm on this particular topic, if I could take a little diversion.

25 The Defence, part of the Defence, is not merely trying to streamline the

Page 7586

1 process to just attack the portions of the indictment which are

2 unresolved, but now we have to -- but the entire indictment. It is our

3 firm belief that when we come across evidence that would be of assistance

4 to the Trial Chamber in understanding the events, that it is our

5 obligation to bring it here. Because we believe that in solving as much

6 of this dilemma that exists with respect to Srebrenica as possible, you

7 will have a clear picture in understanding the surroundings and the events

8 at the time that they occurred. And I stress this, and as a good example

9 I point out the All People's Defence, a concept that is so valuable in

10 understanding how it was not just the mobilisation process but the

11 Territorial Defence process, which from there we went to how the VRS was

12 created and so on and so forth. It is so relevant that to a foreigner

13 such as an American analyst living in The Hague, occasionally visiting the

14 terrain to interrogate some witnesses and reading documents, at the

15 exclusion of even meeting with an independent expert, as he admitted on

16 the record, will not perhaps provide the most accurate of pictures for you

17 to make an assessment of certain events.

18 And the Prosecution, I might add, was terribly incorrect in its

19 response to the motion on the judgement of acquittal in asserting that the

20 Defence is arguing that circumstantial evidence cannot be brought in to

21 trial in this Tribunal. I don't know where they got that conclusion; I

22 don't subscribe to it. Circumstantial evidence is, of course at times,

23 relevant, but not always. There lies the difference, and that is why we

24 believe it is terribly essential to bring in as many witnesses as

25 possible, so that we don't look at the circumstantial evidence at a

Page 7587

1 superficial level and draw the wrong conclusions. Because we believe that

2 at the end of the case you will see this was a rush to judgement, a rush

3 to judgement by the Prosecution. The circumstantial evidence in this case

4 was that Mr. Blagojevic was the commander of the Bratunac Brigade,

5 Bratunac is next to Potocari, things are happening at and around Potocari

6 and Bratunac, therefore he must be a member of the joint criminal

7 enterprise, and he gets indicted in 1999 before they have even completed a

8 fraction of their investigation as we know it to be today. They had none

9 of the information on MUP at the time. They hadn't interviewed most of

10 the critical witnesses. So that's why we believe we need to bring in as

11 many witnesses as possible so we can put to rest this notion that somehow

12 because of the location and proximity, this is more or less what we would

13 say -- we would apply the proverbial wrong place, wrong time dilemma for

14 Mr. Blagojevic. Unfortunately he became the commander of the

15 Bratunac Brigade right before the attack on Srebrenica, and because of

16 that location we -- there has been a rush to assume and to prejudge

17 Mr. Blagojevic, and accordingly we believe, and the evidence will show,

18 that the Prosecution's investigation in this whole case was a result of

19 this prejudgement, because everything is being prejudged, in our opinion.

20 We will also bring in various witnesses that will be able to

21 provide other answers, such as the MUP witnesses. We believe that it's

22 important to understand who brought them there, why they were there, what

23 they were doing, and under whose command they were at the time, whether

24 they had been subordinated or not. We think that is very important,

25 particularly in light of the Prosecution's claim that MUP was subordinated

Page 7588

1 to the Bratunac Brigade by virtue of their subordination to the

2 Drina Corps.

3 Now, I said I would be brief. I could go on for the next two or

4 three days, actually, in great detail. But given that we have already

5 seen much of the evidence from the Prosecution and we know more or less

6 the events, I would simply like to conclude by asking you that as we go

7 through the next 11 and perhaps more weeks of the Defence case - I know

8 I'm limited to 11, but one never knows - I ask that as these witnesses

9 testify, that you truly gauge their demeanor and pause and ask yourselves

10 with many of them as they come here and they testify, pause and ask

11 yourselves why. Why did the Prosecution not present this evidence to you

12 during their case in-chief? How is it that the Prosecution came to the

13 conclusion that this evidence would not be relevant to the Trial Chamber's

14 determination in seeking the truth and rendering a just and honourable

15 verdict? What is motivating the Prosecution in this case? I think these

16 are relevant questions to be asking as we go along, because while it might

17 be somewhat unorthodox or unconventional in this setting for a Defence

18 lawyer to be trying to solve the case and also to be putting the

19 Prosecution on trial, as it would appear I'm doing, and in fact, I am

20 doing on occasion, I believe it is relevant because in this Tribunal, in

21 spite of the Statute, as glorious as it may be, there is no such thing as

22 equality of arms. And there is a particular obligation on the Prosecution

23 in this case in light of the fact that we are not in the United States, we

24 are not in a purely adversarial system, but rather we have a adversarial

25 process in trial. But with a continental legal tradition, legal

Page 7589

1 principles applying, they have an obligation to bring forward to you all

2 of the evidence they believe is relevant to the events and let you be the

3 Judges, and not selectively try to bring in evidence --

4 MR. McCLOSKEY: Your Honour, I'm going to object at this point.

5 We've heard this over and over again. If he's going to make these

6 scurrilous allegations, he has to back them up with something. They're

7 not for the opening statement. He's made these for months now against his

8 own client, against us, against almost every witness. He hasn't backed up

9 a thing. This is inappropriate, and I have to object. It's demeaning the

10 Tribunal at this point.

11 MR. KARNAVAS: Your Honour --

12 JUDGE LIU: Thank you very much. Your objection is registered in

13 the transcript.

14 Mr. Karnavas, please bring your opening statement to an end.

15 MR. KARNAVAS: Very well. Your Honour, we will be bringing in all

16 of these witnesses, many of whom were questioned by the Prosecutor. You

17 can be the Judges of whether these allegations are scurrilous or whether

18 they fit as a result of a result-oriented investigation, where they rushed

19 to judgement, they rushed to an indictment, they were disinterested in

20 ever questioning the man, and they are disinterested in the truth. And

21 that's what this evidence will show.

22 Thank you.

23 JUDGE LIU: Thank you. It's a very short opening statement,

24 Mr. Karnavas.

25 MR. KARNAVAS: Your Honour, you asked me to give a short opening

Page 7590

1 statement, so I was then contacted and told to keep it within two

2 sessions. I then got notice that the Prosecution was planning on

3 appealing, so I also prepared for a lengthy Status Conference. I then

4 came to court today to find out that a motion was filed by the Prosecution

5 and that the Status Conference wouldn't occur. And also you just

6 cautioned me to bring it to an end. So I can go on if you like, but I

7 thought that less is more at this point in time.

8 JUDGE LIU: Thank you very much.

9 Could I get the confirmation from Mr. Stojanovic that you are

10 going to deliver your opening statement until your case comes?

11 MR. STOJANOVIC: [Interpretation] Yes, Your Honour. As we have

12 stated the other day, we will give our opening statement just before we

13 start with our case, pursuant to the motion we submitted under Rule 66

14 ter.

15 JUDGE LIU: Thank you.

16 Well, during the pre-Defence conference this Trial Chamber asked

17 the parties to meet to discuss about the 65 ter filings. I wonder whether

18 there's an opportunity for the parties to meet during these days.

19 Yes, Mr. Karnavas.

20 MR. KARNAVAS: Thank you, Your Honour. I made myself available

21 all day after that hearing. I then told Mr. Waespi that I would not be

22 available the next day. We have not been contacted since. I was

23 available all day yesterday. Mr. Waespi ran into Ms. Tomanovic. He never

24 raised an issue as to whether he wanted to meet with us. I was in

25 The Hague on Monday as well. I never got a call. It's not for lack

Page 7591

1 of -- not wanting to meet with them. Perhaps because of their own

2 obligations and the timing of this weekend, we just couldn't connect. But

3 we're certainly willing to meet. And also, we have made some further

4 assessment, based on our previous Status Conference. We have some slight

5 improvement in shifting some of the viva voce to the 92 bis, and we will

6 continue to work on that.

7 Also, I can provide some further comments, either on the record or

8 in writing with respect to the other witnesses. So I'm fully prepared to

9 answer any questions, and I'm a little bit fresher than I was last time.

10 And again, I want to apologise for I was a little terse at the last Status

11 Conference.

12 JUDGE LIU: Thank you.

13 Mr. McCloskey, are you going to meet the Defence to discuss the

14 65 ter filings made by them?

15 MR. McCLOSKEY: Yes, Your Honour. We can meet with them.

16 Mr. Waespi I know is trying to make himself available because I was gone

17 last week. We can continue to try, though I don't know how optimistic I

18 am. We can try. There's obviously some misunderstandings about the

19 Prosecution's case, and perhaps we can talk and resolve some issues to

20 save some time.

21 JUDGE LIU: Thank you very much.

22 Well, originally this Trial Chamber would like to have a

23 Status Conference after the opening statement delivered by the Defence

24 counsel. But at this -- but this morning I was informed that the

25 Prosecution filed a 65 ter response today or yesterday, but we haven't

Page 7592

1 seen it yet. And also, we were informed that the Prosecution would like

2 to ask for the certification of appeal to our 98 bis filings. So after

3 consideration, we decided to postpone that Status Conference until a later

4 stage, when we have a thorough reading of these requests as well as the

5 response to the 65 ter filings.

6 I think, as we said in the last Status Conference and also

7 confirmed by Mr. Karnavas today, his case will last for 11 weeks, which

8 means that the 25th of June, which will be the last day of his case. I

9 hope we could make better use of the time available to this trial, and I'm

10 very glad to receive the list sent by Mr. Karnavas via fax on the order of

11 that list of witnesses. I think we are happy to see we will go through

12 those witnesses by one day one witness, including the cross-examination.

13 So I hope the direct examination could be as concise as possible.

14 So, Mr. Karnavas, would you please tell us something about

15 tomorrow's witness. For instance, is he here? Any protective measures?

16 Anything else you would like to inform to this Bench?

17 MR. KARNAVAS: Well, Your Honour, the gentleman -- in fact, the

18 first two gentlemen will be here later on today, as I understand that they

19 were in Belgrade and they should be on their way. I will be meeting with

20 the gentlemen in the afternoon. The first witness did give a statement to

21 the Prosecution way back, and he held a significant position at the time.

22 He was involved during the events of the 12th and the 13th. And I think

23 that I did discuss him -- his testimony to a great extent in the previous

24 Status Conference, but I can certainly go -- do more on that, if you so

25 wish.

Page 7593

1 As I understand it, the gentleman is not asking for any protective

2 measures. I will be meeting with the gentleman, as I said, later on,

3 perhaps as early as 4.00 so I can inform. And I failed to mention that at

4 the counsel table we have our case manager, Mr. Aleksandar Momirov. He is

5 a graduated lawyer from the Netherlands here. His origin is from Serbia.

6 He speaks the language, as well as English and Dutch. So he is going to

7 be assisting us in coordinating and he's already gone through one trial so

8 he's the expert on the team for the coordination.

9 So I think that's about it. I don't think that the Prosecution

10 can have any particular doubt about this particular witness, because they

11 obviously talked to him and has been available and their own expert has

12 discussed him. So -- and other witnesses have discussed his involvement,

13 so there's no surprise involved with this witness or the following

14 witness.

15 There's only one minor point I should bring out with the

16 subsequent -- with the second witness. And perhaps if we could -- no, we

17 can just do it in open. This gentleman will talk about that on the -- I

18 believe it was the 13th? On the 13th, he learned that one of the Muslim

19 prisoners, someone that he knew, Rasid Sinanovic, had been brought to the

20 Bratunac Brigade military police jail, if you want to call it that, and he

21 was there having coffee with -- having coffee over there and being held

22 and questioned in a sense. We will hear from two witnesses, but this

23 particular witness will tell us that upon hearing that he went there and

24 had a social visit and sat there for a couple of hours where they talked,

25 they drank, they ate, they smoked some cigarettes, and the gentleman

Page 7594

1 assured this particular individual that he had nothing to worry about

2 because to his understanding they were going to be taken either to

3 Batkovici or taken towards Tuzla. So that's the only thing that --

4 JUDGE LIU: We did not see that in your 65 ter filings.

5 MR. KARNAVAS: And it was brought to my attention last night,

6 Your Honour, by Ms. Tomanovic, that in my putting -- in making the -- in

7 trying to be as concise as possible, unfortunately, I was perhaps too

8 concise and not as informative. That's why I'm mentioning right now on

9 the record that this is the information that was brought to my

10 recollection last night that this gentleman would talk about.

11 JUDGE LIU: Well, if later on you have some more information on

12 this aspect, please inform the other party and the Chamber as early as

13 possible.

14 MR. KARNAVAS: I will, Your Honour. I certainly will.

15 JUDGE LIU: You certainly remember that we are not satisfied with

16 your 65 ter filings, especially concerning with the first and the second

17 witnesses. We believe that you just copied one from another; they are

18 exactly the same, which does not help us a lot, frankly speaking.

19 MR. KARNAVAS: I was in a hurry, Your Honour, and I apologise. I

20 certainly didn't mean to be hiding any evidence. But I understand and I

21 stand corrected. And the Court is correct in admonishing me for that

22 practice.

23 JUDGE LIU: Yes. As I said in the pre-Defence conference, if your

24 witness needs closed session or voice distortion, we hope you could inform

25 the registrar and the Chamber as early as possible, so that they could

Page 7595

1 make the logistic preparations.

2 MR. KARNAVAS: We will do that, Your Honour.

3 JUDGE LIU: Thank you very much. Is there anything else that

4 parties would like to bring to the attention --

5 MR. KARNAVAS: I have another matter.


7 MR. KARNAVAS: The Prosecution was able to contact several

8 witnesses, some a while back, some not so long ago. We would like to be

9 able to find out from there where they -- if they have any numbers,

10 addresses, their whereabouts. One in particular we made a request several

11 weeks ago, we haven't heard back. The individual is rather critical, we

12 believe, to the Court's understanding. And of course there is -- we're

13 all busy and we have been in the field and hard to reach, but I would

14 kindly ask the Trial Chamber to instruct the Prosecutor to provide to us

15 any information on the whereabouts of any individuals. Now, whether

16 they're still there or not, that's another story. And whether

17 they're -- we're going to be able to find them or not, that's another

18 story. But at least it helps us a little bit in trying to track down some

19 of these individuals.

20 JUDGE LIU: Well, I hope that since the parties will be free this

21 afternoon, I hope that the parties could have a meeting this afternoon to

22 discuss all the matters, including this one. If, Mr. Karnavas, you are

23 still not satisfied with the reply from the Prosecution, please feel free

24 to come to the help of the Chamber.

25 MR. KARNAVAS: Very well, Your Honour.

Page 7596

1 JUDGE LIU: Thank you.

2 Mr. McCloskey.

3 MR. McCLOSKEY: Mr. President, we don't have any exhibits for the

4 first two witnesses, so am I to believe that maybe there are no exhibits

5 for those first two witnesses?

6 JUDGE LIU: Yes, this is a question we also have in mind at this

7 moment.

8 Mr. Karnavas?

9 MR. KARNAVAS: The Prosecution's belief is correct. If there

10 aren't any, there aren't any. We don't intend, Your Honour. They're

11 going to be rather short, these witnesses. At this point in time we don't

12 have any. For the third witness there is something that is being

13 translated. We did provide the Prosecutor with all that information with

14 respect to the third witness, what we had. We also provided them with

15 other material that was in the translation process, because they indicated

16 a request for that information, that material that was in B/C/S.

17 So -- but we appreciate the fact that they reminded us, just in case we

18 forgot, because we're just getting started. So hopefully we won't have

19 any mishaps, but we're trying to get back into our rhythm back in court,

20 putting on our case.

21 JUDGE LIU: I think the rule we use in the Prosecution case is

22 also applied in your case.

23 MR. KARNAVAS: I understand.

24 JUDGE LIU: So at least you have to furnish us with the list, the

25 list of the exhibits you are going to use when you direct exam a witness

Page 7597

1 before hand.

2 MR. KARNAVAS: I understand, Your Honour. We have a couple of

3 more documents that was just brought to my attention, some legislation,

4 OTP should be aware of it from other cases, but we're going to bring it to

5 their attention. But we will stay on top of it and I know it's a little

6 rough at this point, but we're going to shave off the edges.

7 JUDGE LIU: Thank you.

8 So if there's nothing else, I think the hearing is adjourned. We

9 will resume tomorrow morning at 9.00 in the same courtroom.

10 --- Whereupon the hearing adjourned

11 at 10.08 a.m., to be reconvened on Thursday,

12 the 15th day of April, 2004,

13 at 9.00 a.m.