Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12294

1 Wednesday, 29 September 2004

2 [Prosecution Closing Statement]

3 [Open session]

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 very much.

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

11 courtroom. Today we are going to have the closing argument in accordance

12 with the Rule 86 of the Rules of Procedure and Evidence of this Tribunal.

13 The purpose of these closing arguments is to give the parties an

14 opportunity to present their views and analysis of the evidence which has

15 been presented in this courtroom in the last 18 months. As it is the

16 views of one party, it is not necessary for the other party to agree with

17 those views and analysis completely.

18 That's why we have these hearings and have these closing

19 arguments. Before we start, are there any matters that the parties would

20 like to bring to the attention of this Bench?

21 Yes, Mr. Karnavas.

22 MR. KARNAVAS: Thank you, Mr. President. Good morning,

23 Your Honours. I just have a couple of matters. The first matter is: On

24 Friday, it would appear, we received a statement that was generated about

25 a month ago in Massachusetts with respect to the events that happened on

Page 12295

1 Branjevo Farm. It would appear to be from the gentleman who was

2 apparently with the 10th Sabotage Division and made no reference to

3 anybody from the Bratunac Brigade being there. Obviously it's just a

4 one-pager. I'm rather troubled that this was -- the interview was on the

5 25th of August. We received notice of it late Friday, the 22nd of

6 September. Mr. Graham was the one who participated -- that did the

7 interview in Massachusetts. I think this would have been important

8 information for us to have earlier because it shows that nobody from the

9 Bratunac Brigade -- so this would have been important. Secondly, I would

10 like to know if there is anything else out there that might be

11 exculpatory - because I view this as exculpatory - that we are unaware of.

12 So I would ask that the Prosecution inform us or make an effort to find

13 out if there is anything, because I know they have -- their investigation

14 is ongoing. That's the first issue.

15 The second issue is in keeping with the Court's remarks, do I take

16 it that objections are forbidden or discouraged? I mention this only

17 because I have no problem with sitting put and listening to the

18 Prosecution's closing, even though I probably will not agree with any of

19 it or maybe part of it, I don't know. But I doubt very much of it. But I

20 don't want to, tomorrow, when I give mine, for the Prosecution to be all

21 over me. So I don't want to sit here like a church mouse, quiet, and

22 behaving while tomorrow I'm on the receiving end of incoming barrages.

23 JUDGE LIU: Well, as for the second issue, I would like to tell

24 you that the objections are not encouraged in closing arguments. Of

25 course, if there is any problem with the specific facts, especially the

Page 12296

1 dates and the number of the documents, et cetera, you may remind the other

2 party of that issue. But generally speaking, the objections in these

3 proceedings are not encouraged and we'll give the parties the opportunity

4 I believe 30 minutes for rebuttal at the end of today's hearing.

5 As for the first issue, Mr. McCloskey, would you please shed some

6 light on that issue, please.

7 MR. McCLOSKEY: Good morning, Mr. President and Your Honours.

8 Good morning, everyone.

9 The Prosecution will continue to provide appropriate discovery to

10 the Defence, especially anything that may be exculpatory as we identify

11 it. And I would expect that this will continue for weeks to come. And if

12 I could go into private session briefly.

13 JUDGE LIU: Yes, please, we'll go to the private session, please.

14 [Private session]

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23 [Open session]

24 JUDGE LIU: Now we are in open session and I think it's time for

25 the Prosecution to present its closing argument. I have to remind both

Page 12298

1 parties that we have received the final briefs already. I'm not expecting

2 the parties to repeat what is already mentioned in those final briefs. So

3 try to make your closing argument as concise as possible and please leave

4 some time this afternoon for the other party, especially for the Defence

5 teams to give their rebuttal argument.

6 Yes, Mr. McCloskey.

7 MR. McCLOSKEY: Thank you, Mr. President. Today Mr. Waespi will

8 begin the closing argument with some preliminary remarks and then he will

9 speak mainly on the case of Major Jokic. He will be followed briefly by

10 Antoinette Issa who will speak of the law on joint criminal enterprise.

11 And then Milbert Shin will speak again, briefly, on the law of complicity

12 in genocide.

13 And then you will hear from me at the end and I will speak mostly

14 on the case against Colonel Blagojevic. We intend to finish hopefully

15 today and as you know us, we will do our best to be as succinct and

16 targeted in our remarks. With that I will turn the podium over to

17 Mr. Waespi.

18 MR. WAESPI: Good morning, Your Honours, colleagues from the

19 Defence, everybody.

20 It's almost unnecessary, Your Honours, to repeat the story of the

21 horrific crimes that were committed by the Bosnian Serb forces after the

22 fall of Srebrenica in that hot summer in July 1995 that cost the lives of

23 thousands. You will recall the testimonies of the survivors of these

24 massacres: P106, the Kravica warehouse survivor; Mevludin Oric and Kemal

25 Mehmedovic, Orahovac survivors; P111, Petkovci dam survivor; and P105, a

Page 12299

1 Branjevo Military Farm survivor. And the other men who were fortunate

2 enough not to be killed. You will also recall having heard from the

3 surviving family members of the men and boys who lost their lives. From

4 all these witnesses you will recall what they said about their own fate

5 and the ones of their family members and colleagues and the events and

6 crimes that changed their lives forever.

7 The shelling of the enclave of Srebrenica, which drove the people

8 first to Srebrenica and later towards a UN base in Potocari. The

9 suffering of the mostly women and kids and elderly men in Potocari herded

10 together under horrible conditions under the eyes of a helpless UN. The

11 separations of families. The moments when thousands of people, wives,

12 mothers, brothers, cousins, friends, teachers and their pupils saw each

13 other for the last time. And you will also recall the suffering of a few

14 survivors, their thoughts and fears before they were led to the execution

15 spots. I'm sure you particularly remember witness P111, the young

16 survivor to the Petkovci dam massacre who was about to become 17 that

17 summer. He was sitting, as he told you, on the back of a truck, being

18 transported to one of the killing fields, recognising his teacher from

19 Srebrenica who was going to share the same fate. I'm sure you will recall

20 what he said, the thoughts he had just a moment before he had to jump off

21 the truck. And I quote: "I got off when it was my turn, but like the

22 others we were all biding our time. We were praying for more time. We

23 were just living for another extra few seconds."

24 And he continued: "Suddenly the lorry switched on the engine and

25 left. As others were killing -- as others were being killed, I was

Page 12300

1 praying that I would be killed, too, because I was in terrible pain. But

2 I dare not call out to them so I just thought that my mother would never

3 know where I was and I was thinking that I would like to die. And I was

4 so thirsty. And when the lorry left I stayed there for a while."

5 Your Honours, you have heard another side, the other side. You

6 have heard the testimony of two of the perpetrators, Nikolic and

7 Obrenovic, who had pled guilty and appeared as witnesses for the

8 Prosecution. You have also heard from other Prosecution witnesses and

9 many witnesses called by the Defence who gave you a rare insight into the

10 mechanics of a crime of mass executions. You have heard from truck

11 drivers, operators of engineering machinery, from VRS soldiers and

12 officers who were present on the ground as the events unfolded. Once, you

13 were also told what the perpetrators did after an execution occurred.

14 They had a nice dinner and celebrated a job well-done.

15 Your Honours, before I deal specifically with the accused

16 Major Jokic, I would like to touch briefly on two issues which were

17 revealed by the testimonies of these mostly Defence witnesses as they

18 relate to the crimes in the Zvornik area of responsibility. The first

19 remarkable observation, Your Honours, from this testimony is the fact how

20 widespread and how well-known these crimes were among the local

21 population. We have to keep in mind, though, what Jovan Nikolic, a former

22 teacher testified about these place: "Bratunac is a small town and all of

23 us know each other well there."

24 And I believe Your Honours, you have taken back the memories and

25 indeed your insight into the locations when you visited the area a few

Page 12301

1 days ago. Most relevant, though, if we look at the situation in the

2 Zvornik area, was the testimony of Tanacko Tanic, a witness called by the

3 Defence of Mr. Jokic, who was an accountant, I believe a cashier within

4 the financial department of the brigade staff in Zvornik. And I quote:

5 "Well, in principle people know everything. You can digress in the

6 Zvornik Brigade and others, but the characteristic thing was that when

7 operation was being planned, it was the women in the village who knew

8 about this first before even the soldiers. So people knew everything that

9 went on and where it went on. So in my first statement I said that there

10 were 7 or 8.000 killed according to what I knew in the different locations

11 Kozluk, Branjevo, or wherever." Tanacko Tanic.

12 Indeed, Your Honours, the killings were no secret. How could it

13 be, given the number of people that needed to be transported, guarded, and

14 eventually killed? Engineering machinery needed to be ready to dig

15 graves, as you'll hear in a moment. We also heard that some prisoners

16 became unruly in the schools so problems arose that needed to be

17 addressed. Other witnesses have testified that killings occurred sporadic

18 even before the mass executions had begun. Bodies were laying around at

19 water points close to public roads.

20 One witness even said, and you may remember that: "The suggestion

21 of a commander that his troops being issued new uniforms if they continued

22 killing.

23 Your Honours, the Prosecution case is that it was impossible to

24 hide these murderous activities. And I would like to address a second

25 aspect which is important to understand. It's the attitude and the

Page 12302

1 atmosphere of hatred that was prevalent at that time in July, the attitude

2 displayed by the members of the VRS and other perpetrators, vis-a-vis the

3 civilians of Srebrenica. I'm sure you recall the testimony of

4 Witness Bojanovic, a Defence witness, a witness called by Mr. Jokic. Like

5 Major Jokic, Captain First Class Ljubo Bojanovic served within the brigade

6 staff of the Zvornik Brigade and was regularly called to serve as a duty

7 officer during some of the days in July 1995. You will recall that he

8 said it was very important to be duty officer and to have experience you

9 needed to have that position. He told you, Your Honours, that he was duty

10 officer on the 23rd and 24th of July, 1995, when his assistant received a

11 phone call in relation to two injured Muslims who were kept at a place

12 called Skelani and made a note in the duty officer's workbook, a book

13 you're going to hear and see a couple of times today: "Skelani have two

14 injured Turks; they cut themselves with glass."

15 When Witness Bojanovic was informed about the message, he wrote

16 down the following in the duty officer notebook, and we can see that on

17 the first exhibit, that's the remark, English translation.

18 Witness Bojanovic said, and I quote him: "I told them to kill them since

19 Bratunac doesn't want to take them."

20 Now, Captain Bojanovic confirmed in court that this was indeed his

21 handwriting, and perhaps we can see the B/C/S version. He didn't say it

22 was a joke. I didn't say it or it was a manipulation. He just said he

23 was carried away by emotions. And he even put it down on paper so it

24 could be picked up by a successor, although he claimed that people

25 wouldn't have believed him, wouldn't have followed it. The Muslims, Your

Page 12303

1 Honours, were even injured. The Prosecution suggests that there's no

2 better way to show the disregard the perpetrators openly displayed against

3 their enemies, now detained, injured, hors de combat. Captain Bojanovic

4 was not nobody, but an experienced officer within the brigade staff of the

5 Zvornik Brigade. The names of the two unfortunate Muslims are known.

6 These two injured persons, Your Honours, were called Sadik Salihovic and

7 Hamdija Delic, and both appear on the OTP list of the missing persons.

8 And we can have a look perhaps at these two. The first name

9 Delic, Hamdija, and the second person is listed as well.

10 Your Honours, what happened -- and that's the second name,

11 Your Honours, as you see on the screen.

12 Your Honours, what happened in the Zvornik Brigade area of

13 responsibility was no secret operation done by a few and concealed from

14 the rest. That the crimes were committed was well-known and the

15 perpetrators even boasted about it. I don't need, Your Honours, to touch

16 upon the crime base. You have heard from many witnesses, investigators,

17 Ruez and Dean Manning, about the crime base from experts given partially

18 in writing and they're also mentioned in our witness -- in our written

19 brief with reference to the witnesses and documents.

20 Just picking up from what we heard about Branjevo Farm to remind

21 you, Your Honours, of what Erdemovic testified in the Krstic case,

22 introduced under 92 bis here, that he and his colleagues, 7 or 8 people,

23 alone, on the 16th of July 1995, starting around 10.00 in the morning,

24 finishing mid-afternoon, killed more than a 1,000 people, on one single

25 day. That's the crime base as you're aware of.

Page 12304

1 Let me move to the primary burial operation in the Zvornik area

2 following the crime bases as we have just learned. You know that there

3 were basically four or five primary burial sites around Zvornik for the

4 Muslim men that were massacred, that the graves near Petkovci dam, the

5 school in Orahovac, the school in Rocevic and Kozluk, two sites at Pilica

6 and indeed at Branjevo Farm. And you also heard testimony, Your Honours,

7 that the engineering company of the Zvornik Brigade was heavily involved

8 in that exercise of burying, and we'll hear about that later.

9 Dragan Obrenovic also explained to you that it was indeed the job

10 of the engineering company of the engineering unit of the Zvornik Brigade

11 to deal with that. He explained to you that the engineering unit had

12 indeed the machinery necessary to deal with these burials and that the

13 machines were used to deal with it.

14 Briefly talking about the secondary burials in the

15 Zvornik Brigade, you heard testimony that it started around autumn 1995.

16 We heard testimony and presented documentary evidence which implicates the

17 Main Staff, the Drina Corps, and indeed the Zvornik Brigade, including

18 Mr. Jokic, into these criminal acts which were patently open.

19 Let me turn to the accused Dragan -- Major Dragan Jokic. You have

20 already heard how widespread the knowledge was of these crimes that were

21 committed. As you will see, quite a number of the members of the

22 Zvornik Brigade of different units, staff battalions, were involved in all

23 aspects of the operation. The chief of staff and acting commander at the

24 time, Dragan Obrenovic, took the responsibility for it.

25 Dragan Jokic, what were his responsibilities? He had, as you

Page 12305

1 know, a dual role. He was the chief of engineers and he exercised it with

2 quite a substantial authority given and taken by the accused. And he was

3 the duty officer on one specific day on the 14th of July. Now, let me

4 first deal with his authority as the chief of engineers. In that capacity

5 he was a staff member within the Zvornik Brigade. You have heard

6 evidence, documentary, from expert Mr. Butler, from Obrenovic about what

7 the role of a chief of engineers is, an advising role. But he was also

8 there to implement decisions from the commander.

9 In particular, and this is the next exhibit 23/3 provided by the

10 Defence of Mr. Jokic, specifically he directs actions of engineers in

11 accordance with commander's decision, suggests the commander changes and

12 additions in tasks issued to the units. And you'll see that in these

13 documents, I believe on the second page. And, Your Honours, we accept the

14 translation in B/C/S for "directs" is "usmerava" and not "rukovodjenje".

15 But that does not matter, because as you'll see later, Mr. Jokic exercised

16 his duty in reality much more forcefully than indicated in these rules.

17 As an example, Your Honours, we can turn to Prosecution Exhibits

18 513, the company commander of the engineering companies order of the day

19 for 14th July, signed by the company commander Mr. Jevtic. Here you can

20 see the remark in the middle under item 5, Ostoja Djuric is to be

21 appointed officer for technical service and supplies by order of the chief

22 of engineers. Now, that's one of the examples the way it was exercised.

23 Although the Prosecution doesn't suggest - and we have repeated that many

24 times, Your Honours - that Mr. Jokic was de facto in command and control,

25 it's clear that his authority was bigger than the normal chief of

Page 12306

1 engineers. There are a couple of reasons for it and Mr. Obrenovic

2 explained it to you in court. That Mr. Pandurevic, the brigade commander,

3 Colonel Pandurevic, gave Mr. Jokic more powers because of the lack of

4 military experience Mr. Jevtic showed. Indeed, a Defence witness from

5 Mr. Jokic, Minja Radovic from the engineering company, confirmed that

6 Jevtic had little authority because he lacked military training and had no

7 rank as far as the witness knew.

8 Mr. Obrenovic again: "Jokic controlled the engineers company in

9 practical terms when it came to the professional part of their duties."

10 And, Your Honours, you have heard testimony that the company

11 commander, Mr. Jevtic, was indeed absent on the evening of the 13th of

12 July when he joined Mr. Obrenovic to strengthen defence lines in the

13 southern part of the Zvornik area of responsibility at Snagovo. So

14 Mr. Dragan Jokic, Major Dragan Jokic, the chief of engineers was there

15 almost alone at that level in terms of command of the engineers.

16 Let me, before I come back to the engineers, discuss the role of a

17 duty officer. As you heard, the main description is that a duty officer

18 facilitates the work within the brigade as well as between the brigade and

19 external units. As Mr. Obrenovic explained to you, a brigade duty officer

20 needs to monitor and be familiar with developments in his brigade and in

21 neighbouring brigades, keep his commander and superior officers

22 up-to-date, informed about these developments, and to maintain

23 communications with subordinate units, as well as with superior commands,

24 including MUP and civil defence.

25 We have also heard from Witness Bojanovic how experienced a duty

Page 12307

1 officer needed to be because of the demands given, required by this

2 position. Mr. Obrenovic, Your Honours, also told you that the duty

3 officer could issue orders under certain circumstances on behalf of the

4 commander, and perhaps on behalf of the operations duty officer of the

5 corps of the higher level. And there are, Your Honours, examples in the

6 evidence that Mr. Jokic, Major Jokic, in fact used all these duties,

7 authorities given. One example is intercept P227 between Major Jokic

8 early morning 14th July. He barely started as a duty officer. He talks

9 to General Zivanovic. And you see it on the screen. He says that: "I

10 have information about the Turks."

11 And then he goes on and talks about what he knows about them.

12 There is a similar intercept, Your Honours, and we'll come back to

13 this one recorded the same day at half past 10.00 that night, P233, a

14 conversation again from Major Jokic with a General Vilotic. And as we

15 know from Mr. Obrenovic, that's General Miletic from the Main Staff. And

16 you'll see here that the general, General Miletic, was entrusting Jokic to

17 assist in arranging for the defence of Zvornik. And we see that on second

18 page of Exhibit P233 where Mr. Jokic was told to mobilise everyone and

19 take them up there to cut it off, helping the Defence of Zvornik.

20 In sum, Your Honours, the purpose of the duty officer is to ensure

21 continuous and secure functioning of the command in all conditions. And

22 we also heard testimony of other duty officers. Dusko Vukotic, chief of

23 intelligence of the Zvornik Brigade, also called by the Jokic Defence. I

24 believe he said: "If neither brigade commander nor chief of staff were

25 present, relevant information would go to the duty operations officer

Page 12308

1 first so that he could inform the chief of staff and thus enable him to

2 take appropriate steps in the further course of action."

3 And we heard testimony from a senior officer of the

4 Bratunac Brigade who told you what happened in his area. He testified

5 about the times they heard for the first time about the emergence of the

6 28th Division in the Bratunac area and when they came across minefields.

7 Then he continued: "That particular commander in the Bratunac Brigade

8 area, informed the duty officer in the operations room that there were

9 voices outside and moans and mines exploding and that was the first we

10 ever heard about any movements, manoeuvres of the 28th Division."

11 You see, Your Honours, the duty officer, usually the third highest

12 ranking officer in the command, absent the commander and the chief of

13 staff has a very, very important function.

14 Now, how did the situation look in the area of responsibility of

15 the Zvornik Brigade when Mr. Jokic took over as the duty officer in the

16 morning of the 14th of July, 1995. Now, already on the 13th you will

17 recall, Your Honours, there were movements from the Bratunac area towards

18 the Zvornik area. Transports of prisoners on the 13th already at night

19 towards the Orahovac area. Further, the Zvornik Brigade on the 13th

20 already was contacted for excavating machines to bury bodies on the 13th.

21 We have intercepts that talk about and we have a remark in the duty

22 officer logbook, and that's the next exhibit. I believe it's P133 at page

23 five. To the bottom of page five, it says: "President of the

24 municipality Deronjic called and asked that the flatbed trailer be sent to

25 Bratunac to bring a bulldozer." And at 1000 hours, Colonel Beara passed

Page 12309

1 on the message.

2 There were other activities as you recall. We have a vehicle

3 record of an Opel Record which shows that the military police of the

4 Zvornik Brigade was scouting already sites, execution sites, in the area,

5 and that's Exhibit P510. And moreover, Your Honours, you will recall the

6 change of duties at the forward command post at the night of the 13th

7 between Drago Nikolic, security officer of the Zvornik Brigade, and

8 Major Golic who had to relieve him because Nikolic was informed by Popovic

9 from the corps that the prisoners would arrive. And he informed Obrenovic

10 about that and Obrenovic made the change at the forward command post

11 happen between Nikolic and Golic.

12 Your Honours had information of course from Nikolic about the

13 3.000 prisoners that were about to arrive on the 13th at night. That was,

14 Your Honours, the situation on the 13th at night, early morning of the

15 14th when Major Jokic took over as duty officer. Important parts of his

16 brigade whose activities he was supposed to monitor as duty officer were

17 already visibly involved into the murder operation.

18 When Major Jokic took office, he was supposed to be told what was

19 happening in the previous shift, was supposed to look at the duty officer

20 notebook. And the previous officer would have told him what happened. We

21 heard from Milan Maric, another witness called by the Defence of

22 Mr. Jokic, also a duty officer at times. And I quote: "The duty officer

23 would take over the duty usually came in early to prepare, look at the

24 documents, acquaint himself with what happened the previous days, which

25 actions were started, which ones were not implemented, to look over the

Page 12310

1 duty handover notebook to see what was entered by his predecessor."

2 So that was the situation and we believe that there was -- it was

3 impossible that Major Jokic did not know what was happening at that time.

4 But he continued to acquire information after he became duty officer, as

5 was his job because of the 14th of July. First of all, we know that a

6 number of military police from the Zvornik Brigade was active in Orahovac

7 at the killing sites, even senior officers from the Zvornik Brigade staff,

8 coming from Standard where Major Jokic was sitting as the duty officer,

9 left to Orahovac and came back. We heard Gojko Simic, a member -- a

10 senior member of the 4th Battalion who was actively participating in the

11 killings at Orahovac. One of the survivors, Mehmedovic, recognised his

12 voice.

13 At this point, Your Honours, I would like briefly for two minutes

14 to go into private session to deal with one testimony of a witness who

15 testified in private session parts. It will be very short, but I believe

16 it's important for you to put his testimony into context.

17 JUDGE LIU: Well -- yes, we'll go to private session but we have

18 to try to avoid any private session, and limit it as short as possible

19 because this is a closing argument and we want the public to be informed.

20 But we'll go to private session.

21 [Private session]

22 (redacted)

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Page 12311











11 Page 12311 redacted. Private session.















Page 12312

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3 [Open session]

4 MR. WAESPI: Now, Witness Tanacko Tanic who had been at Orahovac,

5 as he testified in this courtroom, concluded that Major Jokic would have

6 known on the 14th of July about the killings at Orahovac because everyone

7 knew on the 14th of July. In cross-examination by Mr. Karnavas, he was

8 asked: "Do you have reason to believe that this was known to Mr. Jokic?"

9 And Mr. Tanic answered: "I can say in general that on the

10 territory of the municipality, everybody knew. There had been executions,

11 everybody. It was common knowledge. The news got around right away.

12 Everyone knew that executions were going on in Orahovac. Some people

13 escaped and there were problems with the pit and everybody knew

14 everything."

15 Given the overwhelming evidence presented, Your Honours, the

16 Prosecution submits that the Defence argument, and I quote them: "There

17 is no evidence of Jokic's knowledge of the events taking place in

18 Orahovac," from their closing brief is simply not sustainable.

19 Major Jokic knew also of other crimes happening in that area. As

20 you recall, witness Pero Petrovic informed him about the prisoners stored

21 at the village in Kula over the phone on the 14th of July.

22 Now, as time progressed, Major Jokic fulfilled his duties in

23 monitoring and communicating with others very well. Intercepts, entries

24 in the workbook of the duty officer, and witness testimonies demonstrate

25 that, that he received and passed on information and gave instructions,

Page 12313

1 all of which were essential to the smooth running of the detention,

2 transportation, and executions.

3 Now, let's have a look at P Exhibit 232, an intercept. And it

4 occurred on 4th of July, well into his stay as a duty officer, at 2

5 minutes past 9.00. And it's Major Jokic talking to Beara. He urgently

6 wanted to talk to him as we see from the beginning:

7 "Hello, who is it."

8 "Major, I am the duty officer at Palma. I need Beara urgently."

9 And you know, Your Honours, who Beara is from the Main Staff, one

10 of the main perpetrators, as we know from Mr. Butler and other people.

11 Now, he told Beara that Beara needed to call number 155. And

12 Jokic, as you see later, refused to tell over this line to Beara who 155

13 was. And we know from Obrenovic that 155 was Main Staff. General Miletic

14 again. And later in the intercept, a revealing comment of Mr. Jokic:

15 "There are big problems. Well, with the people -- I mean with the

16 parcels."

17 And Mr. Obrenovic told us that "parcel," that is a synonym for

18 prisoners.

19 In another conversation, Your Honours, intercept again P Exhibit

20 233. And we have seen that before. Jokic talking to General Vilotic or

21 Miletic as we know. "Obrenovic is really engaged to the maximum. We all

22 are, believe me. This packet has done most to ruin us. And since this

23 morning we have been reporting on the number of people. Well, well --"

24 And so on.

25 And again Major Jokic's reference to packet was a reference to the

Page 12314

1 Muslim prisoners that had been arriving in the area of the Zvornik Brigade

2 in the early morning of the 14th of July. There are three or four other

3 entries of the duty officer's workbook that I would like to discuss

4 briefly. On page 7. At the bottom of page 7. Yes, it states:

5 "Colonel Salapura called - Drago and Beara are to report to Golic."

6 This is a reference to Colonel Salapura, again, Drago Nikolic,

7 Beara, and Major Golic at the Drina Corps, intelligence officer. It shows

8 that Major Jokic was communicating, facilitating communications between

9 key players within those times. You'll remember that Salapura came to

10 testify and he said he didn't recall this event.

11 Another entry, Your Honours, a telling one, on page 9. Again in

12 Major Jokic's handwriting, as was the previous entry. "1500

13 hours - Colonel Beara is coming in order to Orahovac, as written,

14 Petkovci, Rocevic, Pilica," all known detention and execution sites.

15 Major Jokic is clearly involved in what was happening at that

16 time. Another entry, page 14. "Beara to call 155," and that dovetails,

17 Your Honours, with the intercept we have earlier seen of Jokic trying to

18 reach Beara so he could call 155, the Main Staff.

19 And lastly, page 15, just the next page. Again Mr. Jokic writing

20 down in his official duty officer notebook: "From Beara - Drago to report

21 Mane Djukici. 0900 Beara is coming."

22 And that shows again that Beara called earlier and ordered that

23 Drago Nikolic should report to somewhere.

24 Now, finally the testimony of witnesses who interacted with

25 Major Jokic when he was duty officer on the 14th of July. They also show

Page 12315

1 the involvement of Mr. Jokic into the murder operation. You recall

2 Mr. Milosevic, the deputy commander of the 6th Battalion of the Zvornik

3 Brigade, who testified that on the 14th of July he was in the area of

4 Petkovci with his battalion. He testified that on the 14th between 11.00

5 and 12.00: "The Zvornik Brigade duty officer," he didn't know whether it

6 was Jokic or not, but he said the Zvornik Brigade duty officer called him

7 and told him that Muslim prisoners would be arriving at the school in

8 Petkovci. That later the duty officer called back and spoke to his

9 commander, Mr. Milosevic's commander, Stanisic, asking for Stanisic to

10 find Colonel Beara and Nikolic. Milosevic then found them and transmitted

11 the message back to the duty officer at the Zvornik Brigade.

12 So it shows, Your Honours, that Dragan Jokic, duty officer at that

13 time, was coordinating the arrival of prisoners at the Petkovci school.

14 And we have witness P130 who told you that he had contacts with

15 Dragan Jokic to ask him for reinforcements because there were problems at

16 the Orahovac school. He testified he spoke to Jokic and Jokic said:

17 "I'll see what I can do for you."

18 And later these reinforcements came in the persons of assistant

19 commander for rear services, Sreten Milosevic. And it continues,

20 Your Honours, over the 14th and the 15th in the morning that Jokic

21 coordinated, he knew what was happening, he facilitated, perhaps

22 concluding with Obrenovic's testimony on that, when Obrenovic, acting

23 commander of the Zvornik Brigade, returned on the 15th from the

24 battlefield. You know, he was -- he ran into Jokic and Jokic told him

25 about what had happened. And I quote Mr. Obrenovic that: "They had

Page 12316

1 problems with securing the prisoners of war and with burying them."

2 And also Jokic said that Beara, Popovic and Nikolic were taking

3 people wherever they felt like and however they felt like and added that

4 Colonel Popovic had ordered that nothing should be conveyed through radio

5 communication about the prisoners, and nothing should be recorded or

6 written down.

7 And you recall Mr. Jokic in the intercept we just discussed not

8 wanting to disclose what 155 referred to.

9 Now, let me go on to the function of Mr. Jokic as the chief of

10 engineers. I talked briefly about his authority he had, but there was

11 more because he was heavily involved in giving orders to members of the

12 engineering company from the 14th throughout the 17th of July identifying

13 specific excavation machines, machinery being brought to Orahovac,

14 Petkovci, and Branjevo Farm.

15 Your Honours, it's very clear, despite the Defence's submissions

16 that Major Jokic had the authority to order personnel in the engineering

17 unit despite the fact that he was the chief of engineering, a staff

18 officer, and not de jure, the company commander. For example,

19 Milos Mitrovic, a witness, member of the engineering company, explained

20 that the chain of command above him included his platoon commander,

21 Damjan Lazarevic, the company commander, Dragan Jevtic, and the chief of

22 engineering, Major Jokic. And he said he would receive orders from all

23 three of them. Evidence also shows that these three people, platoon

24 commander, company commander, and the chief of engineers worked together.

25 You'll see, and I'm sure you recall many instances, just one on 16th July,

Page 12317

1 Mr. Mitrovic and a colleague were ordered by Major Jokic to go to Kozluk

2 with a Skip type of an excavator, as you know, and report to the platoon

3 commander Lazarevic. And when they arrived they were told to use the Skip

4 to cover the bodies.

5 Now, let me give you the three examples of orders Major Jokic gave

6 to members of the engineers company. The first one Ostoja Stanojevic. He

7 was told by Major Jokic on the 14th of July to take his machinery, a

8 kipper, and report to civilian protection in Zvornik. There he was told

9 to go to Bratunac civilian protection. There he was told to go to

10 Kravica, where he loaded bodies together with other people and put them to

11 Glogova. Two days -- when he came back on the 17th of July, he reported

12 to Major Jokic about his activities, told him what he did at Kravica. And

13 he then asked for leave and Major Jokic gave him leave, which again shows

14 what authorities he had.

15 Second example, Cvijetin Ristanovic, a witness came here also to

16 testify about orders he received. He also told you that he received

17 orders from his platoon commander, company commander, and the chief of

18 engineers. Now, what happened to him. On the 14th of July, 1995, when

19 the executions were ongoing at Orahovac already, he was told by Mr. Jokic

20 to take his machinery, a G700 backhoe excavator, a Rovokopac, as we know,

21 to go to the school in Orahovac. There he was told by another member of

22 the engineering company - I believe it was the deputy commander,

23 Bogicevic - to start to dig a grave, a grave which was prepared with

24 poles, premarked, four wooden sticks 2.5 to 3 metres, and 2 to 2.5 metres

25 wide and about 50 metres long and 1.5 to 2 metres deep. Everything was

Page 12318

1 prepared. Now he started digging and while he was digging, people,

2 Muslims, came on trucks. He was told to go away from this grave, stop

3 digging. He turned around towards the dam, you remember the railway line,

4 and while he was waiting, people were executed. He testified he saw

5 blindfolds, white cloths on these people, these unfortunate Muslims being

6 killed. Later he was relieved by another member of his engineering

7 company. He turned away, went to a water point to refresh. Again he saw

8 bodies lying around, executions, while he was standing there, all on the

9 14th of July.

10 There is, Your Honours, corroboration of these excavation

11 activities because witnesses saw these machines. Let's look at what we

12 just talked about. Ristanovic came with his G700, a Rovokopac. Let me

13 show what his machinery looks like and it's Exhibit P354, and Mr.

14 Ristanovic identified his machinery here in court and that's his backhoe

15 excavator. Now let's hear what Mevludin Oric said who was present, one of

16 the survivors. He drew a sketch of the machine he saw. And we look at

17 Exhibit P67. On the left side you see exactly the same machinery, a

18 Rovokopac as he called it himself. And you can compare it yourself how

19 similar these two machines are, indeed identical on the right side, by the

20 way, of Mr. Oric's drawing, and a loader ULT-200 which was present as

21 well.

22 You also recall, Your Honours, that while the - and we heard from

23 Ristanovic that executions were ongoing while the machinery was

24 operating - they were even using the machinery, engineering machinery to

25 shed lights on survivors who tried to escape and they tried to shoot them,

Page 12319

1 again using the lights.

2 We have other corroborating evidence which I don't have time to go

3 into: The fuel records for other documents showing that the machinery was

4 indeed active on those days and on the locations specified.

5 Let's turn to the 15th of July. Major Jokic was again involved.

6 Now he was no longer duty officer but he was still involved in his

7 capacity as chief of engineers. On the 15th of July, Ristanovic, who was

8 ordered the day before by Jokic to go to Orahovac, had to go back to

9 Orahovac. This time he was ordered to do that by his platoon commander,

10 Lazarevic. Lazarevic knew exactly what he had to do: Digging, what else?

11 He told you. On that day, his platoon, and two or three other soldiers

12 went to Orahovac. So there were five or six soldiers of the engineering

13 company at Orahovac doing their job.

14 Perhaps one example of the Zvornik Engineering Brigade documents

15 showing what the units were doing at the time is PX521, an order dated

16 15th July, 1995, signed by Jevtic. That's a good example of what the

17 machinery was doing on that given day. And incidentally the document also

18 shows that days off could only be taken with the approval of the company

19 commander and the engineering chief, Dragan Jokic, at least as it relates

20 to this specific day.

21 On the 16th of July, Major Jokic ordered Mr. Mitrovic, another

22 witness, and a colleague to go to Kozluk, this time with a Skip and report

23 to Damjan Lazarevic, their platoon commander, who would give them

24 instruction. We heard this example before. They also saw an ULT-220 that

25 belonged to a company with the name of Josanica which was, when necessary

Page 12320

1 as we heard, commandeered for the needs of the Zvornik Brigade. So they

2 were using machinery which didn't originally belong to them. They were

3 able to use that.

4 A last critical entry, Your Honours, of the duty officer workbook

5 dated 16th July, 1995, demonstrates Major Jokic's direct involvement in

6 assisting in the burial operation and it's on page 34. It shows that the

7 1st Infantry Battalion requested a loader. Yes, you'll see now displayed.

8 "An excavator and a dump truck with a canvas to be in Pilica at 0800

9 hours." The workbook then says: "Conveyed to Jokic and Milosevic."

10 Witness P130 says that he took down this notation and explained

11 that the vehicles were for the burials at the Branjevo Farm and indeed on

12 the following day, 17th July, somebody operated the machinery, heavy

13 machinery, at the Branjevo Farm, and that was indeed Witness Ristanovic

14 from the Zvornik Brigade.

15 On 17th July you also heard witness 178, that he reported his

16 activities at the Kravica warehouse to Major Jokic. Again, he requested

17 leave, to be relieved from his duties for a while, and Jokic granted these

18 requests. It shows how much Mr. Jokic was involved in day-to-day

19 activities of the brigade.

20 To finish, Your Honours, briefly, the reburials. The Prosecution

21 has presented both direct and circumstantial evidence of Mr. Jokic's

22 involvement into the reburial operation. It's basically based on the

23 large scale and the needs, the big needs of the Zvornik Brigade engineers

24 and their involvement in the original burials. It was a massive

25 engineering project in which thousands of bodies from graves within the

Page 12321

1 Zvornik Brigade area of responsibility were exhumed and reburied in

2 several graves distributed throughout the Zvornik Brigade zone of

3 responsibility. I believe you heard Dean Manning testify about the

4 different graves, primary and secondary graves which were linked with each

5 other.

6 At least one witness, Your Honours, from the Zvornik Brigade

7 testified that the reburial effort could not have been completed without

8 the use of the engineering units which were involved in various tasks,

9 including sanitisation of the terrain and so on. Milan Maric testified, a

10 witness called by Mr. Jokic's Defence, that he asked Mr. Jokic what

11 happened about the reburial, but Mr. Jokic wouldn't answer him.

12 Lastly, Obrenovic and also P130 testified about the participation

13 of the brigade engineering company and these reburials. And it's just

14 natural that the people who know about the location of the original graves

15 were were involved a second time to take them out and hide them elsewhere.

16 To finish just before the break, Your Honours, it's the position

17 of the Prosecution that we have shown beyond a reasonable doubt that the

18 accused Dragan Jokic was heavily involved in the operations to kill

19 thousands of Muslim prisoners in the area of responsibility of the

20 Zvornik Brigade. In his dual role as chief of engineers but heavily

21 involved into the daily activities of the company of engineers of the

22 Zvornik Brigade and as duty officer on the 14th July. He not only knew of

23 the crimes but he received and passed on information and gave

24 instructions, all of which were essential to the smooth running of the

25 detention, transportation, and executions. Thank you very much.

Page 12322

1 JUDGE LIU: Thank you.

2 I believe that is high time for us to have a break and we'll

3 resume at quarter to 11.00.

4 --- Recess taken at 10.15 a.m.

5 --- On resuming at 10.47 a.m.

6 JUDGE LIU: Yes, Ms. Issa, you may start.

7 MS. ISSA: Thank you, Your Honours. Good morning, Your Honours.

8 As Mr. McCloskey has indicated at the outset, I will very briefly

9 address the law on the issue of joint criminal enterprise. I will not, as

10 such, be addressing the evidence that makes out the guilt of the accused

11 as members of the joint criminal enterprise, as that has already been

12 addressed by Mr. Waespi as to Mr. Jokic and will be addressed by

13 Mr. McCloskey as to Colonel Blagojevic.

14 I will address the following areas in my submissions: Firstly, I

15 will start with briefly outlining our position with respect to both

16 accused's liability under Article 7(1) of the Tribunal statute; next, I

17 will deal with three objective requirements that apply to all categories

18 of a joint criminal enterprise; thirdly, I will address categories of

19 joint -- the categories of the joint criminal enterprise and deal with the

20 mens rea requirement for each of these categories; and finally, I will

21 very briefly address the law on aiding and abetting.

22 Just beginning with a brief overview of our position with respect

23 to the accused's criminal responsibility under section 7(1) of the

24 Tribunal statute. Section 7(1) sets out certain forms of individual

25 responsibility which apply to crimes within the Tribunal Statutes. When

Page 12323

1 one of these forms of individual responsibility is of course commissioned,

2 another one is aiding and abetting. Now, although Article 7(1) of the

3 Tribunal Statute does not make explicit reference to joint criminal

4 enterprise, according to Tribunal jurisprudence, participation in a joint

5 criminal enterprise is a form of liability which constitutes a form of

6 commission under Article 7(1) of the statute. Therefore, it is our

7 position that Colonel Blagojevic committed the offenses of forcible

8 transfer and persecutions of the Muslims of Srebrenica as a member of the

9 joint criminal enterprise or planned to forcibly transfer the Muslims of

10 Srebrenica out of the enclave. And this of course relates to counts 5 and

11 6 of the indictment. It is also our position that Colonel Blagojevic is

12 also guilty of aiding and abetting in extermination and murder. And that

13 of course refers to counts 2, 3, and 4 of the indictment.

14 As for Major Jokic, it is our position that he has committed the

15 offenses of murder, extermination, and persecutions as a member of joint

16 criminal enterprise to kill the Muslims, men of Srebrenica. Turning then

17 to the categories of the joint criminal enterprise. There are three

18 categories of joint criminal enterprise which all share the same actus

19 reus requirements. But the mens rea differs with each category. So I

20 will start with the actus reus categories. Firstly, there must be a

21 plurality of persons involved, two or more persons, in a joint criminal

22 enterprise. Secondly, or the second requirement is there must be an

23 existence of a common plan or common purpose which amounts to or involves

24 the commission of a crime provided for in the Statute. But according to

25 Tribunal jurisprudence, and I cite specifically paragraph 227 of the Tadic

Page 12324

1 Appeals Chamber. A common plan does not have to be a preformulated one or

2 a pre-arranged one. The common plan may be inferred from the very fact

3 that a plurality of persons acted in unison to put into effect the

4 particular crime.

5 The third requirement is the participation of the accused in the

6 common plan. This participation does not need to involve the commission

7 of a specific crime such as murder, extermination, et cetera, but it may

8 take the form of assistance in or contribution to the execution of the

9 common plan.

10 Turning then to the different categories of the joint criminal

11 enterprise as set out in the Tadic appeals judgement. The mental state

12 requirement differs between the three types of a joint criminal

13 enterprise, but I will only address the two types of a joint criminal

14 enterprise that are relevant for our purposes and for this case, and those

15 are what is known or may be referred to JCE 1 and JCE 3, so the first and

16 third category.

17 The first category is what is known as the basic form of a joint

18 criminal enterprise. It represents cases where all the members of the

19 joint criminal enterprise acting pursuant to a common design or purpose

20 possess the same criminal intention. In Tadic, the Appeals Chamber

21 provides the example at paragraph 196 of such a common plan, for example,

22 to kill and says that: "Even if each member of the joint criminal

23 enterprise carries out a different role in achieving the plan to kill,

24 they all nevertheless possess the same intention," which is to kill. So

25 therefore that is the required mens rea in the shared intent in furthering

Page 12325

1 the common purpose.

2 The third category is what is known as an extended form of joint

3 criminal enterprise, and that concerns cases where an accused intended to

4 participate in and further the common plan and in addition to that the

5 accused incurs responsibility for a crime committed outside of the common

6 plan by one of the participants in the joint criminal enterprise, if it

7 was foreseeable that such a crime might be committed by one or more of the

8 participants in the joint criminal enterprise and the accused willingly

9 took that risk.

10 So in other words, the accused does not need to have intent to

11 commit the crimes outside of the criminal plan or the common plan, he

12 needs to be aware of the foreseeable consequences that that crime may

13 occur and willingly takes that risk. The Tadic Appeals Chamber also

14 provides a useful example of JCE 3 at paragraph 204. And the example that

15 they provide is a common shared intention on the part of a group to

16 forcibly remove members of one ethnicity from their region, basically to

17 effect ethnic cleansing, with the consequence that in doing so one or more

18 of the victims is shot and killed. So murder may not have been part of

19 the common design, it was nevertheless foreseeable that the forcible

20 removal of the civilians at gunpoint may well result in the deaths of one

21 or some of those civilians.

22 The Appeals Chamber goes on to say: "Criminal responsibility may

23 be imputed to all participants within the common enterprise where the risk

24 of death occurring was both a predictable consequence of the execution of

25 the common design and the accused was reckless or indifferent to that

Page 12326

1 consequence."

2 I will now turn briefly to the Prosecution's position with respect

3 to which joint criminal enterprise is applicable for each accused. It is

4 our position that Colonel Blagojevic shared the intent and had the intent

5 to forcibly transfer the Bosnian Muslims, the other members of the joint

6 criminal enterprise. And he is therefore liable under the first category

7 of the joint criminal enterprise, of which the common purpose is the

8 forcible transfer of the Muslims out of the enclave. Dealing then with

9 the actus reus, we would submit that that is made out in that we have a

10 plurality of persons involved, some of which are the Drina Corps, members

11 of the Bratunac Brigade, the Main Staff, the Zvornik Brigade, et cetera.

12 They're all listed in the indictment, and I believe Mr. McCloskey will go

13 through that. All involved in the forcible removal of the Muslim

14 population. We also have the existence of the common design in the

15 evidence. The evidence shows starting with directive 7 through Krivaja 95

16 and other documentary evidence and other evidence that there was a plan to

17 in fact expel the Muslims from the Srebrenica enclave.

18 It is also the Prosecution's submission that the evidence clearly

19 and compellingly shows that Colonel Blagojevic participated in furthering

20 this plan to forcibly remove the Muslim population out of the enclave and

21 that he shared the intent to commit the forcible transfer operation, all

22 of which is laid out in section 3 of the Prosecution closing brief.

23 Section 3 of our brief also sets out the evidence that proves beyond a

24 reasonable doubt that Colonel Blagojevic's responsibility under the JCE 3

25 or the third category of a joint criminal enterprise for the natural and

Page 12327

1 foreseeable consequences of the forcible transfer operation and

2 persecutions, which are essentially the terrorising of the Muslim

3 population, the opportunistic killings and beatings, et cetera, which we

4 say were manifestly foreseeable by Colonel Blagojevic on the evidence.

5 Also the detention of the men in Bratunac, that was manifestly obvious and

6 foreseeable that other opportunistic killings would take place. These

7 acts would be the natural and foreseeable consequences of the common plan

8 to forcibly transfer the Muslims out of Srebrenica.

9 With respect to Major Jokic, it is the Prosecution's submission

10 that Major Jokic is guilty of murder, extermination and persecutions as a

11 member of the first category of a joint criminal enterprise. The object

12 of the enterprise, of course, is to murder the Muslim men of Srebrenica.

13 With respect to the actus reus there is clearly a plurality of persons

14 involved in that operation. Numerous witnesses have testified as to

15 members of the Zvornik Brigade, the Drina Corps, and the MUP, and others

16 involved in the murders that formed these charges. Section 4B of the

17 Prosecution brief and what Mr. Waespi has essentially gone over this

18 morning also provides evidence basically of Mr. Jokic's participation,

19 both as a duty operations officer and his role as chief of engineers of

20 the Zvornik Brigade which shows the -- his -- not only his participation

21 but his intent, his shared intent, in furthering the common plan of

22 murdering the Muslim men.

23 It's also our position that Major Jokic is responsible for the

24 natural and foreseeable consequences of that plan and therefore liable

25 under JCE 3 or third category of the joint criminal enterprise. The

Page 12328

1 natural and foreseeable consequences of the murder operations includes the

2 beatings, the opportunistic killings, and other evidence of that sort, as

3 we argued in the Prosecution brief. Once the murder operation was

4 underway, it is clear from the evidence that other opportunistic killings

5 and beatings were manifestly foreseeable.

6 Now, just very briefly, Your Honours, that address the law on

7 aiding and abetting, it is the Prosecution's position, of course, that

8 Colonel Blagojevic was guilty of aiding and abetting in the murder and

9 extermination under Section 7(1) of the Statute. And according to

10 Tribunal's jurisprudence, in order to be found guilty of aiding and

11 abetting under Section 7(1), the following requirements must be made out.

12 Firstly, with respect to the actus reus, the aider and abettor carries out

13 acts specifically directed to assist, encourage or lend moral support to

14 the perpetration of a specific crime and this support has a substantial

15 effect upon the perpetration of the crime.

16 Secondly, with respect to the mens rea, in the case of aiding and

17 abetting, the requisite mental element is knowledge that acts performed by

18 the aider and abettor will assist or does assist the commission of the

19 specific crime of the principal.

20 Section 3C sub-3 and section 2E sub-3B sets out the unlawfully

21 acts that resulted in the killings of approximately 7.000 men of

22 Srebrenica and shows that Colonel Blagojevic aided and abetted in these

23 unlawful killings. As we argue in the Prosecution brief, the evidence

24 overwhelmingly shows that Colonel Blagojevic did aid and abet the murder

25 operation, and we commend to Your Honour Section 4B as well, in the brief

Page 12329

1 which shows that he knew that his acts were assisting in the murder

2 operation against the Muslims of Srebrenica.

3 So therefore those are the Prosecution's submissions as to the

4 accused's liability in law as far as the law is concerned that I have just

5 outlined -- briefly outlined. And before I sit down I actually would like

6 to very briefly address an issue that was raised in the Blagojevic Defence

7 brief, and that is the test for joint criminal enterprise which is set out

8 in paragraphs 344 and 347 in the Brdjanin Trial Chamber case. In that

9 case, the Trial Chamber basically stated that a joint criminal enterprise

10 requires an agreement between the accused and the physical perpetrators.

11 It is our position that that is wrongly decided, that that is not the law

12 of the Tribunal. To the extent that there's any reference to an agreement

13 in any of the Tribunal's jurisprudence, it merely refers to an agreement

14 between members to further the common plan, which is saying that they

15 share the intent to further the common plan. It is our position that not

16 only is it wrongly decided in law, it simply doesn't make sense to say

17 that there needs to be an agreement between the accused and a physical

18 perpetrator, because not all modes of liability and not all modes of

19 co-perpetration or joint criminal enterprises, if I can refer them -- say

20 that, is a physical perpetrator necessarily required for a JCE to be

21 formulated.

22 For example, it is possible to have three high-ranking commanders

23 who share the intent to commit an offence and they may use their soldiers

24 to implement that offence without telling the soldiers that what in fact

25 they are doing is committing illegal acts. And that is one example of why

Page 12330

1 the Brdjanin test is simply wrong. Stakic, of course, is another form of

2 co-perpetration and another mode of liability which also shows that that

3 test is not -- is wrong in law.

4 In any event, it is our position that Brdjanin is distinguishable

5 on its facts from our case. In Brdjanin, the Court itself distinguished

6 Brdjanin on its facts and I believe stated at paragraph 355: "Although a

7 JCE is applicable in relation to cases involving ethnic cleansing as the

8 Tadic appeal judgement recognises, it appears that, in providing for a

9 definition of JCE, the Appeals Chamber had in mind a somewhat smaller

10 enterprise than the one that is invoked in the present case. An

11 examination of the cases tried before this Tribunal where JCE has been

12 applied confirms this view."

13 And in Tadic, the Court notes or refers to specifically at

14 footnote 890 in the examination of the cases, the case of Krstic, which of

15 course is on all fours with the case at bar, citing that as an obvious

16 place where JCE did, in fact, occur and where it is applicable. So even

17 if we are to go with Brdjanin which we say is wrong in law, it is our

18 position that on Brdjanin itself it is -- this case is distinguishable

19 from the facts of Brdjanin. Also it's noteworthy that Brdjanin did have a

20 much larger geographic location that related to that case and also the

21 time period that it took to remove the non-Serb population in Brdjanin was

22 approximately eight months. The time period that we have in the case

23 before us is approximately four days for the joint criminal enterprise to

24 come to fruition. So it's distinguishable on those facts.

25 With respect to the Jokic closing brief, I note, Your Honours,

Page 12331

1 that in a couple of places they rely on the Krnojelac trial judgement for

2 some of the propositions that they are putting forward. The only thing I

3 have to say about that is firstly, that was a judgement which dealt

4 specifically with JCE 2, which relates to the camp cases that are

5 completely irrelevant to the case at bar. And secondly, that judgement

6 has actually been overturned by the Appeals Chamber and some of the

7 information for which it's been cited in the Jokic brief has actually been

8 overturned by the Appeals Chamber. So in fact it's not applicable.

9 Thank you, Your Honours, those are my submissions, very brief

10 submissions, on the law. Subject to any questions, those are my

11 submissions.

12 JUDGE LIU: Thank you, Ms. Issa. Your presentation is very

13 concise and clear. Thank you very much.

14 MS. ISSA: Thank you.

15 JUDGE LIU: Mr. Shin.

16 MR. SHIN: Thank you, Mr. President, Your Honours.

17 I will briefly address the law applicable to count 1B charging the

18 accused, Colonel Blagojevic, with complicity in genocide. The Prosecution

19 has set out its position previously on this issue in the context of a

20 motion to amend the indictment, as you will recall. In short, the mens

21 rea for complicity in genocide is knowledge and not specific genocidal

22 intent. It's knowledge of the genocidal intent of others.

23 In view of the submissions on this point and the Defence brief,

24 the brief for Colonel Blagojevic, we reiterate our position here and we

25 reiterate also our readiness also to answer any questions that may arise

Page 12332

1 on this issue. In their brief the Defence contends that: "Article 4

2 states that for an accused to be liable for complicity to commit genocide

3 there must be a special intent to destroy in whole or in part a national

4 ethnic, racial, or religious group."

5 That is in paragraph 121 of their brief. In support of that

6 contention the Defence have invoked the Krstic Appeals Chamber judgement.

7 The Prosecution submits that Article 4 does not state the proposition

8 that's quoted -- that was just quoted. And secondly, the Krstic Appeals

9 Chamber judgement does not support that proposition either.

10 Alternatively, the Defence brief suggests that there is ambiguity on this

11 issue and therefore invoking the principle that ambiguity must be resolved

12 in favour of the accused that the appropriate mens rea is specific intent.

13 The Prosecution submits that there is no ambiguity. The Appeals Chamber

14 has pronounced on this issue and in fact since then a Trial Chamber

15 judgement has followed that reasoning.

16 The Krstic Appeals Chamber judgement clarified an area of law that

17 previously had been somewhat unsettled. In short, the mens rea for aiding

18 and abetting in genocide in that judgement was found to be knowledge and

19 not the specific intent of genocide. And in doing -- in finding that, the

20 Krstic Appeals Chamber judgement clarified the relationship between

21 Article 7(1) and Article 4(3) of our Statute. The Krstic Appeals Chamber

22 judgement found that as a consequence there was indeed overlap,

23 specifically between complicity in genocide and aiding and abetting in

24 genocide. It also left open the possibility of differences. However,

25 what is clear is that complicity in genocide at least to the extent it

Page 12333

1 encompassed aiding and abetting in genocide and conduct and mens rea. In

2 that case, the mens rea for complicity in genocide is knowledge and not

3 the specific intent for genocide.

4 In September, earlier this month in fact, in the Brdjanin Trial

5 Chamber judgement, the Brdjanin Trial Chamber followed that reasoning

6 correctly, the Prosecution would submit. In paragraph 726 of that

7 judgement, the Trial Chamber agreed with the description of the

8 relationship between Article 7(1) and Article 4(3) set out in the

9 Krstic Appeals Chamber judgement, in particular the finding that there is

10 an overlap of certain heads of criminal responsibility and also with

11 Article 4(3). Consequently, the Brdjanin Trial Chamber found that

12 complicity in genocide can consist of aiding and abetting in genocide,

13 although it is not to be excluded that there may be other acts which are

14 not strictly aiding and abetting but which would amount to complicity.

15 Here the Brdjanin Trial Chamber noted that the Appeals Chamber in Krstic

16 and other cases had held that the term complicity may encompass conduct

17 broader than aiding and abetting, certainly suggesting that it would

18 include aiding and abetting.

19 Accordingly the Brdjanin Trial Chamber found, regarding the mens

20 rea for complicity in genocide, and this is paragraph 730 of that

21 decision: "Complicity in genocide where it consists of aiding and

22 abetting genocide does not require proof that the accomplice had the

23 specific intent to destroy in whole or in part a protected group. Rather,

24 the Prosecution must prove beyond a reasonable doubt that an accused knew

25 that his own acts assisted in the commission of genocide by the principle

Page 12334

1 offenders and was aware of the principle offenders' state of mind. It

2 need not show that an accused shared a specific intent by the principal

3 offender."

4 The Prosecution observes that in a footnote in the Defence brief,

5 the accused argues that the Prosecution is charging Colonel Blagojevic

6 with genocidal intent and thus was not "candid when seeking to amend the

7 indictment and asserting that it was charging Colonel Blagojevic with

8 knowledge and not genocidal intent."

9 The accused's argument here is somewhat confusing. Had the

10 Prosecution's proposed amendment to the indictment been granted, the

11 resulting indictment would have narrowed count 1B expressly to a knowledge

12 standard.

13 As the indictment stands now, yes, the Prosecution submits that

14 complicity in genocide encompasses knowledge mens rea for sure, and

15 possibly, a specific intent mental state for acts that constitute

16 complicity in genocide but extend beyond aiding and abetting in genocide.

17 However, the Prosecution's position on this issue has been consistent and

18 it's been clear. We are charging Colonel Blagojevic with knowledge,

19 knowledge of the genocidal intent of others and in substantially

20 contributing to that genocide.

21 I would conclude -- to conclude, the Krstic Appeals Chamber

22 judgement made it clear that the mens rea for complicity in genocide is

23 knowledge. This is consistent with the jurisprudence on complicity in

24 genocide from the Rwanda Tribunal. The Brdjanin Trial Chamber has

25 followed the Appeals Chamber correctly on this issue. The Prosecution

Page 12335

1 therefore submits that that is a correct law to apply in this case. Thank

2 you, Your Honours.

3 JUDGE LIU: Thank you.

4 Mr. McCloskey.

5 MR. McCLOSKEY: Your Honours, I don't intend to take a lot of your

6 time. We've watched you sit very patiently through over a year and a half

7 of the trial listening to every word and looking at each piece of evidence

8 very carefully. Our case is laid out as best we could in the trial brief

9 and it will be my position today to try to bring to your attention some of

10 the more important areas that I think you need to be aware of and

11 emphasise in your deliberations. To begin with, you may recall my opening

12 statement, you may not, but principally the theme and theory of our case

13 was to understand the involvement of the perpetrators, Colonel Blagojevic

14 in this case. I have always looked at this in three ways, the large

15 picture, the events themselves, the interactions of the individuals, the

16 army, the definitions within the army that regulate individuals, the

17 massive size of this, all the units involved, the horrible, horrible

18 numbers of people killed. There is where there is no silver bullet. This

19 is the case. It is a huge complicated case of inferences to put together

20 to determine what people did, what people knew, and when they knew it.

21 That's the way most criminal cases are. And most cases that rely on

22 direct evidence generally rely on human beings as that direct evidence and

23 human beings are fallible. So I have every faith in circumstantial

24 evidence. In many respects circumstantial evidence is stronger because it

25 forms a linkage, a bond, a chain any number of which could break, and yet

Page 12336

1 the rest hang on. So I have never had any lack of confidence in a

2 circumstantial evidence case, and nor do I have it in this case. But in

3 order to get into the complicated facts and understand what people knew,

4 when they knew it, we are benefitted by the simple military reality of the

5 units. And in this case we're able to see clearly which units were

6 involved, what they were doing. We saw a certain degree of information

7 after the Prosecution's case and after the end of the Defence case, the

8 volume was doubled. You'll see that in the -- in our brief.

9 I think you understood that as the evidence was coming in, as

10 these Defence witnesses took part largely in these events, were either

11 witnesses of it or took part in it. And in any case when you look at

12 these witnesses, they're in a very tough spot. They're involved, they're

13 there, they're witnessing it. I was impressed with their loyalty and

14 their affection to their commander. Clearly they're in a situation where

15 they didn't want to get him in trouble. We saw a couple of times where

16 they actually said something to us implicating the commander and when they

17 come into court they reverse it. But these falsehoods were easy to

18 identify. When they get up and say: I saw no separations for two days in

19 Potocari. These falsehoods were very easy to identify. When they said

20 something else, as in: I was counting and accounting for the men that

21 were separated in Potocari and providing that information on, that's

22 reliable. So I don't think it is difficult in looking at the Defence

23 witnesses and in fact, of course the adversarial Prosecution witnesses in

24 sorting out the truth from the fiction. It's not always easy. It can't

25 be done in all cases, but overall it can be done. And I trust your

Page 12337

1 judgement in doing it.

2 One of the areas I want to briefly talk about that we didn't pay a

3 whole lot of attention to is the area of the history and the lead-up of

4 this. I'm not going to spend much time on it. But as in everything in

5 the former Yugoslavia, history is incredibly important to understand the

6 events. It's particularly important understanding Colonel Blagojevic,

7 where he stood, what position he was in. I'll tell you what I mean by

8 that. When I go to the history I would refer you to Mr. Butler's report,

9 the UN report, and you'll recall the testimony of the -- many of the

10 survivors who first lived in areas such as Zvornik and gradually, as the

11 war began, they were burned and run out of their homes.

12 But that brief history shows at the beginning of this war there

13 was a policy among the RS government, implemented by the army and police

14 forces, to ethnically cleanse certain areas to make an all-Serbian state,

15 as is suggested in the strategic objectives. And this was the way this

16 war was waged. War is an ugly, ugly thing anyway, but this war was

17 particularly ugly because of its ethnic background. So we must look from

18 1992 and I'll say to May 24, 1995 at this horribly nasty, brutal, ethnic

19 war. No man can go to war and not be affected by it. We know that

20 Colonel Blagojevic was the commander of the Zvornik Brigade in 1992. We

21 know he was a JNA commander. And we know that he was promoted to the

22 command of the Bratunac Brigade in May of 1995. He has to be affected by

23 those events from 1992 to 1995. What we don't know on May 24th is how he

24 reacted. Do you remember one soldier said, a Defence witness, there were

25 honourable officers in this war and there were dishonourable officers. I

Page 12338

1 can't tell you on May 24th which one Colonel Blagojevic was. In fact, I'm

2 not going to get into honour, or goodness, or badness; I'm going to talk

3 about criminal liability. Let's hope he got through until May 24th with

4 some honour, despite his commanders and what was going on before him.

5 I'll just remind you and I'm not going to go over it. We

6 see -- not only do we see events on the ground as set out in Butler's

7 report and the UN report, but we see in November 1992, Mladic's directive,

8 where he talks about beating the enemy. Fair enough. But then he says

9 that to drive them out of these regions together with the Muslim

10 population. We see that same idea expressed in July of 1994 by (redacted)

11 (redacted)

12 (redacted)

13 with his superiors. Then we see the March 1995 directive 7 of

14 President Karadzic talking about making life unbearable and survival

15 impossible. I won't go through those with you. I don't know if

16 Colonel Blagojevic read directive 4, I don't know if he read directive 7.

17 I don't know if he read Ognjenovic's report. I do know and have no doubt,

18 the Prosecution has no doubt, that the result of that expressed policy was

19 clearly visible to anyone on the ground as it occurred. So there is no

20 doubt that by May 1995 Colonel Blagojevic saw this war, saw how horrific

21 it was, saw what was going on, saw the intent of his commanders. On May

22 24, I don't know if he shared that intent, I don't know how he reacted to

23 it. I hope he was repulsed.

24 But by May 25 the plan to Srebrenica had to been under

25 consideration what was going to happen in July, the March directive to

Page 12339

1 make it happen, it happened several months earlier. So when

2 General Mladic and the Drina Corps appointed Colonel Blagojevic to the

3 position of the Bratunac Brigade, it was clear that this was a strategic

4 position known to them and they needed a man who could get the job done.

5 They didn't need someone they didn't know about, they couldn't trust, they

6 weren't sure of. They needed a man they could trust, a solid officer who

7 could get the job done. I know Blagojevic sometimes appears to be in the

8 shadows in this case because he is not the kind of person that we can see

9 like Mladic or perhaps Pandurevic that will step up, and complain, and

10 make noises. But that doesn't mean we don't get a view of who he is. We

11 do. We get a view of that and I'll go over that with you. One thing we

12 do know is that a coach does not put in a player he doesn't know about for

13 a key position. An army officer does not put in a person in a key

14 position where lives depend on it. More so than lives, which we saw, the

15 history was more important than lives. The VRS went down to Zepa, because

16 of history they wanted to make Zepa theirs. History is important, too.

17 They're not going to risk history, they're not going to risk lives on a

18 commander that they cannot trust. One thing you have seen is

19 General Ratko Mladic is a psychopathic killer. He is the man who picked

20 Colonel Blagojevic. General Krstic, his right-hand man. These are the

21 men who chose Colonel Blagojevic now. Let's not hold that against

22 Colonel Blagojevic right now just because his commanders were that way.

23 But let's see what unfolds. The first thing that unfolds is May 25th,

24 first day at the job, the Drina Corps sends an order to the

25 Bratunac Brigade to shell downtown Srebrenica with artillery, not mortars,

Page 12340

1 artillery. You are aware of the destructive power of an artillery shell

2 when it falls in the habitation of civilians. And that's what happened.

3 When those orders came, those shells were fired. Colonel Blagojevic must

4 have known about it. He talked about it in his daily combat report. No

5 concern indicated. That shell flew into downtown Srebrenica and did its

6 damage. That was a vicious thing to do in any war. This gives us our

7 first indication. I don't know if he's a vicious man but I do know he

8 follows vicious orders. And this was the first example of that we see.

9 Because while you may be able to walk away from General Mladic around a

10 building, and we've seen actual soldiers say they hid from him, you cannot

11 hide from his orders. There's no separate chain of command that hides his

12 orders from commanders; I'll get into that in more detail. When Colonel

13 Blagojevic got those orders he followed them throughout this whole case.

14 Now, we'll get briefly into some of the crimes and try to give you

15 a view of the colonel as we go through it. I keep saying "the colonel,"

16 because I want to remind you that that is a senior rank in the VRS, it is

17 a senior position, it is an important position. Now, the crime of

18 forcible transfer as you've heard before and as you'll see and you have

19 seen in our brief. We see that as basically a three-part crime in three

20 parts of a large joint criminal enterprise. The first involves the

21 pressure and the strangulation of the enclave. The gradually cutting off

22 of aid and the various other forms of fear that were -- you've heard about

23 that were placed on the enclave for a long time. That's the first. And

24 in that particular thing we can see Colonel Blagojevic playing a specific

25 and personal role, which I will get into in a minute. Then too is the

Page 12341

1 actual attack on the enclave with the illegal objective to reduce the

2 enclave to its urban area, in addition with what is a legal objective is

3 to stop the enclaves from joining and to stop Oric and his gang from

4 looting and murdering. So this was a two-part attack, one part which was

5 clearly illegal, was not charged in this case. We did not charge every

6 crime that we saw here; we would still be in the Prosecution's case

7 in-chief if we did. It's something that you can consider and I'll get

8 into that in a little more detail.

9 So the first thing I want to go over with you is the 4 July combat

10 readiness report of the Bratunac Brigade. Now, I'm not going to be going

11 through too many documents. I know we've seen a lot and we've seen this

12 one. Because this is authored by Colonel Blagojevic, I think it has

13 particular importance for you to get beyond this kind of curtain of

14 mystery that seems to try to surround the man. Because this is his first

15 major report, at significant time in history. You can tell in looking at

16 it that a lot of time went into this. It's not just a puff piece saying,

17 oh yeah, we're in great shape. It talks about the good, the bad, and the

18 ugly of this report. And this comes from the hand of somebody who is

19 carefully involved in reviewing their command and is intimately involved

20 in its details. And of course, is important because what we've heard

21 suggested that Colonel Blagojevic is the kind of guy that wanders around

22 aimlessly reading maps and that is absurd, as you know, because you have

23 seen this case.

24 I want to first point your attention in the English to page 4.

25 We'll go down briefly through these things and I'll talk about them. It

Page 12342

1 mentions: "The expansion of the brigade's area of responsibility beyond

2 its objective capabilities." This is under the heading of "Difficulties

3 in the exercise of command and control."

4 Now, this argument regarding no zone of responsibility, you've

5 heard it repeatedly from the Defence. You will hear it again. And we I

6 think spent six or seven pages on it in our case. It's such a patently

7 absurd argument that we had to kill it and maybe we overkilled it. I lost

8 count of how many times Colonel Blagojevic himself speaks of area of

9 responsibility in this brief. And we know that there was a map of the

10 area of responsibility on the wall that was referred to and the daily

11 combat reports refer to it. This appears to be an attempt to deny

12 responsibility. And this, of course, Tribunal is all about

13 responsibility. So there is this very obvious effort to push

14 responsibility aside. Even Momir Nikolic was able to take responsibility.

15 We should not push responsibility aside; it's right there in front of us.

16 We go down a little farther. It talks about the great width, 43

17 kilometres of the area of responsibility. Then on the next page, page 5

18 in the conclusion he says: "We actively carried out the Jadar 95 combat

19 operation." That's the OP Echo operation. It's one officers didn't want

20 to talk about. He actually was involved in active combat to get rid of

21 OP Echo, had to get rid of it in order to free up the assault lanes for

22 the Srebrenica attack.

23 Okay. And let's look at this almost-the-last paragraph. "The

24 overall combat readiness of the brigade units ensures the defence of the

25 achieved positions and area of responsibility, but reinforcements are

Page 12343

1 needed for the execution of possible active combat operations."

2 He, in this section, is of course, anticipating new combat

3 operations, and says he needs reinforcements for this. This is dated 4

4 July. He knows Srebrenica is coming and he's reiterating that he needs

5 forces to get through it. Here is an engaged commander that is, in this

6 case, not afraid to speak his mind.

7 All right. And then we get to the intelligence security section.

8 I'm not going to go through the whole thing. But clearly, here is a

9 commander that is familiar with the security and the intelligence

10 operations in his area and is absolutely involved. There is not a secret

11 chain. He speaks of counter-intelligence things. He is up-to-date on

12 the counter-intelligence. He probably does not or should not know all lot

13 of the detail of anything like that because informants and threats and

14 things need to be kept quiet. As the security people said, there is a

15 time to let a commander in and there is a time to keep things quiet. By

16 looking at this, he is aware of the general picture of what's going on.

17 Looking down the third paragraph from the bottom: "The engagement

18 of the intelligence and security organs and reconnaissance units, and

19 other methods of collecting information on the strength, deployment, and

20 intentions of the enemy provides a fund of information on the bases of

21 which decisions on the use of our own forces can be made successfully and

22 on time."

23 He's taking security information. He's taking intel information.

24 He's using it to figure out how to use his own forces. Now, this concept

25 needs to be put into the concept of July 13 and 14 when he was tasked to

Page 12344

1 get people ready for Zepa, for Zvornik, to find the Muslims in the area,

2 thousands of Muslims being abused in Bratunac. This is every bit as

3 applicable to that situation as it was before. He's taking all the

4 situation and figuring out how best to use his troops and to meet the

5 orders of his commanders.

6 The bottom: "The military police platoon has been engaged as

7 planned on the orders of the brigade commander."

8 Something we are reiterating is the military police are under the

9 command of the brigade command. He says it himself. They can't be stolen

10 and hidden and used without his knowledge.

11 Page 8, top of the page: "Three policemen were dismissed from the

12 military police platoon for ill discipline and disobeying an order to take

13 part in execution of a combat task."

14 A couple of things: Military police can be used for combat and

15 not just used for other things. The commander has to be aware of what

16 they are doing at all times so he can use them for combat or whatever

17 else. One. Two, people can be punished, people can be dismissed. There

18 is a way to prevent people from further activity and that is to punish

19 them and dismiss them, something that was never done for the abuse of

20 Muslims, ever. And perhaps most importantly, the third paragraph down, I

21 apologise to the interpreters: "During 1995, international organisations

22 and their representatives have passed through and stayed temporary in the

23 brigade's area of responsibility. Their stay and activities in the area

24 of responsibility were monitored and every significant event was promptly

25 reported to superior organs of the Drina Corps and the Main Staff of the

Page 12345

1 VRS."

2 It shows the Drina Corps and the Main Staff very much involved

3 with international organisations.

4 "In the brigade's area of responsibility a checkpoint was

5 established for the control of all international organisations entering

6 and leaving the enclave of Srebrenica. This checkpoint functions in

7 accordance with the orders of the VRS, Main Staff, and instructions and

8 orders of the brigade commander."

9 Well, we know the checkpoint that he's talking about, yellow

10 bridge. We know that it was used, as it says here, to control the

11 convoys. We know from the testimony, I think the fellow's name was Jovo

12 that he had a list and if things didn't meet the list he would call

13 Momir Nikolic and those materials would be dealt with. So not only was

14 the convoy strangulation happening outside of Bratunac where convoys never

15 even made it that far, but the checkpoint itself was used to control

16 things. And Momir Nikolic was involved, the soldiers at the checkpoint

17 were involved, the Main Staff was heavily involved. This was a very

18 strategic area for them. But look at this, in his own words: "This

19 checkpoint functions in accordance with the orders of the Main Staff and

20 instructions and orders of the brigade commander."

21 There he is, he puts himself right in that checkpoint. We also

22 know from Jovo that despite his claims that the Main Staff did everything

23 and Nikolic did everything, that when it came to calling up the OP next to

24 him and telling him to get out on July 12th, he got his instructions

25 through the duty officer of the Bratunac Brigade. So this idea that the

Page 12346

1 Main Staff is pulling secret strings and running the checkpoint or doing

2 anything by themselves is absurd.

3 "During the last six months, the checkpoint worked very

4 successfully and without any mistakes that could have had negative

5 consequences."

6 Well, we heard about the last six months and how that affected the

7 DutchBat and the people of the enclave.

8 All right. Now, he gets to some factors that positively affected

9 the level of morale. He says: "The liberation and expansion of the free

10 territory in the area of Zeleni Jadar on the brigade's left flank."

11 That's the Jadar operation, the attack that he mentioned earlier.

12 "The successful action of our forces in the Srebrenica enclave."

13 I wish I could tell you what that meant but I can't. That doesn't

14 mean his guys are sitting in the trenches watching the fields.

15 A little farther down: "The brigade commander ... visited units

16 in order to give expert assistance, monitor the situation, and obtain

17 information."

18 This is a colonel being a good commander. He's not wandering

19 around aimlessly.

20 And then another factor: "Cooperation between the brigade command

21 representatives of the Municipal Assembly and local businesses in all

22 issues, particularly with respect to the brigade's logistical support."

23 Now, this is wartime. The army is in control of the town. Yes,

24 it has credible help and assistance from the civilian authorities, partly

25 because of Mr. Karnavas's much touted All People's Defence. It's a hell

Page 12347

1 of a system they put together. But what we see here is the colonel

2 acknowledging how good the cooperation would have been, whether he's in

3 command of it or control of it throughout this process, he is working with

4 it, his troops are working with it. Together they are guarding people,

5 burying people, watching people get butchered, but they're doing it

6 together. There's no separation between the civilian protection and the

7 army. In fact, we know that some of the civilian protection guys get

8 pulled out of the army.

9 That's something we didn't spend much time on and I wanted to

10 spend that time because it's in the hand of the colonel and shows us that

11 he's a good commander. He's a man that knows what's going on and he's

12 being as honest as best he can in that situation and that report. All the

13 things that when it comes to following Mladic's orders will, of course,

14 cut against him.

15 Now, the second part of the forcible transfer, that is the attack

16 and the shelling of the enclave. I -- again, I know we've gone through

17 this but it was dealt with very forthrightly by Mr. Karnavas and I want to

18 make it precisely clear to you what our position on this is. So I want to

19 go to the General Krstic or General Zivanovic's July 2nd attack plan.

20 It's Exhibit 543. This is Krivaja 95. This is important because it

21 illustrates the illegal objective of the attack to -- well, the illegal

22 objective, the purpose of the attack to reduce the enclaves. It's

23 important particularly for Colonel Blagojevic because the evidence has

24 shown that he knows all about this report. One of the-- I believe it's

25 the daily combat report says that this gets read out at the command. We

Page 12348

1 asked Colonel Trsic and he says yes, of course, Blagojevic was aware of

2 the details of the report. When you look at the report that is purported

3 to be by Colonel Blagojevic, it clearly mirrors this report. Not

4 completely, it shows that there is some independent thinking going on, but

5 it's obviously -- Colonel Blagojevic was very well aware of this report.

6 So let me just clearly show you what this report says and what it means.

7 Let's start with page 3. "Command of the Drina Corps pursuant to

8 operations directive 7."

9 We know that's Karadzic saying: Make life impossible. Now, I

10 don't know if Blagojevic read that, but I know he say the effect on the

11 ground over the years.

12 "In order to split apart the enclaves of Zepa and Srebrenica," to

13 know what the Muslims were doing and Naser Oric - this is a legitimate

14 objective as Mr. Butler continuously said - was doing, "and to reduce them

15 to their urban areas."

16 Well, we've seen the urban area of Srebrenica. Can you imagine 30

17 to 40.000 people trying to survive there. It makes life impossible,

18 further survival impossible. It echoes perfectly what the words of

19 Ognjenovic and Karadzic would have been, to move that and reduce them to

20 their urban area.

21 Then we go down the page a little more it reiterates under the

22 term objective: "By a surprise attack to separate and to reduce the size

23 of the Srebrenica and Zepa enclaves, the improve the tactical position of

24 the forces in the depth of the area," and importantly, "to create

25 conditions for the elimination of the enclave."

Page 12349

1 Creating conditions for the elimination of the enclave is exactly

2 what happens when you reduce it and you push the population into the urban

3 area. This plan anticipated that. No question about it. There's another

4 part in the plan which I'll get to that talks about be ready to take

5 advantage of the situation and move forward, something to that effect. In

6 fact, I'll go to that to get it exactly. It's page 5, down the paragraph.

7 "In case of an advantageous development of the situation be in

8 readiness for an attack on and pursuit of the enemy along the

9 aforementioned axes."

10 This is taking it in, taking it in towards Srebrenica. This plan

11 calls for the involvement of the intelligence and reconnaissance organs of

12 the Bratunac Brigade, monitoring and maintaining communications with

13 neighbours' units and means of supporting fire. I mention that because as

14 we look at the shelling later on, we can't tell if the shelling that

15 dropped on civilians is from Colonel Blagojevic's guns. We know that he

16 is shelling; we see that he is doing it in the early stages. But he knows

17 that his compatriots are, and he knows what their targets are and that

18 this is attack on civilians, that he is doing it together with them.

19 Another interesting part of this is on page 8 where the

20 Drina Corps wants the supporting units to: "Point out the significance of

21 dividing and reducing in size the Srebrenica enclave."

22 So they want their soldiers to be able to know what the objectives

23 are, reducing the size of the enclave, and why this is advantage. This is

24 not a secret. In 1995 there was no IFOR. They boldly state and will

25 state to their soldiers what the objective was.

Page 12350

1 Okay. So let's perhaps before the break and give my voice

2 a -- which is running out. Let's get again to the report purported to be

3 by Colonel Blagojevic. I'm not precisely sure where this report came

4 from. As Mr. Butler said, it looks genuine. I think some officers have

5 said it was genuine, but we have no idea where it came from.

6 But in any event the first page it cites Krivaja 95, which was the

7 name of the operation. The second page Colonel Blagojevic says: "I have

8 decided to carry out persistent and active defence of current combat

9 positions with the brigade's main forces and the use of auxiliary forces

10 to carry out offensive operations along the axes of... "

11 Now, here again is a colonel being a commander, personally

12 involved in issuing orders. But Mr. Karnavas has made quite a bit of an

13 argument that the Bratunac Brigade were purely defensive and weren't

14 really involved in this attack expect in some limited areas. They were

15 involved in the attack in limited areas; we agree to that. But the idea,

16 militarily, that defence is not important makes no sense at all any more

17 than you would clear out your people in a soccer match from defending the

18 goal. Yeah, they may not be the strikers, but they're just as important

19 as the offensive. Those guys that are watching that rear, as the attack

20 comes up from north are absolutely critical. They're working together;

21 nobody's working by themselves. Yes, the assault, those are the guys who

22 are going to get the medals, but it's just as important to be in the

23 defence for an overall operation.

24 A little ways down the page it talks about one of his units, the

25 1st Battalion I believe, "it will use large calibre weapons to fire on

Page 12351

1 observed enemy points and in this way prevent movement of enemy forces."

2 To briefly remind you, the 1st Battalion, that was protected

3 witness DP 105 who was a senior member of that battalion said they didn't

4 fire on anybody. And if you recall Ms. Issa read to him what was from

5 evidence from the Dutch report on various assaults and shellings and

6 overrunning of the -- of OP November which was right in front of this

7 guy's spot, which he acknowledged. It talks about the Bratunac Brigade

8 artillery support, firing at the enemy. It also -- he talks about the

9 4th Battalion. Now, you remember the 4th Battalion is that battalion that

10 is looking right over the Ravni Buljim area. That's the area that the

11 Muslims got through because it's a really rough area. It's the tradition

12 route of the Muslims as they would smuggle things up towards Tuzla. You

13 can see in documents they know they have problems communicating with

14 Milici who are opposite them, and they know this is an area. Well, so

15 does Colonel Blagojevic. He knows this is a tough area because in the

16 bottom of page 3, it says: "It should pay special attention to its right

17 flank," in dealing with the 4th Battalion. That's the area that Muslims

18 are first seen at 3.00 a.m. on the intercepts coming through the woods.

19 Next page, page 4, he talks about having a reserve of the military police

20 platoon ready. We see Obrenovic talking about using the military police

21 platoon. His plan calls for having them ready for deployment in this

22 operation. Clearly that's a unit that he needs to be aware of; he needs

23 to know what they are doing so he can use them properly.

24 Then he has an intelligence and security section. "For this

25 command information on the enemy forces," this is page 5, excuse me,

Page 12352

1 paragraph 10, "along these axes will be gathered by intelligence organs

2 and reconnaissance units of the 1st Bratunac Brigade until 5 July and also

3 by the reconnaissance units of the forces engaged in the attack from 5

4 July until the task is completed."

5 Here he is using the intelligence organs, Momir Nikolic.

6 The next page, page 6, he emphasis how important it is to pursue

7 and maintain communications with the neighbours, units, and fire support.

8 This is one of the themes you need to be so aware of it. He has

9 to communicate with his neighbours. He says it here, whether they be the

10 MUP or the other units that are involved in this thing. For the military

11 to survive it has to keep in constant communication. He acknowledges it,

12 he knows it, he would not disagree with it.

13 And again, like the Krstic Zivanovic Drina Corps report, here at

14 page 6 on the bottom, he says under the "Moral and psychological

15 preparation of the troops for the task": "Explain the significance of

16 cutting through and narrowing the Srebrenica enclave to provide security

17 for Serbian villages and civilian population in central Podrinje."

18 So he wants his morale officers to be able to explain to the

19 troops about the significance of cutting the enclave in half and as he

20 says here: "Narrowing the Srebrenica enclave."

21 As you know narrowing and reducing are the same -- have the same

22 meaning. The root word, if we look at the B/C/S, is something I can't

23 pronounce but it's the same root word for all these different expressions

24 of reducing the enclave. I've taken so much time with you on this because

25 these are the words of Colonel Blagojevic. We learn a lot from this and

Page 12353

1 we did not go through it in the case as clearly as we could have. And

2 these principles that he's clearly established are essential to

3 understanding his knowledge and his involvement in the events to follow.

4 On that I will -- I see it's break time.

5 JUDGE LIU: Yes, it's break time. And, Mr. McCloskey, in the

6 later presentations if you are using a document, would you please be kind

7 enough to mention the number of that document so that it will be much

8 easier for us to find it in our binders.

9 MR. McCLOSKEY: Yes, Your Honour. I apologise. I guess I'm out

10 of practice. We'll be sure we give you a list of the numbers and the

11 references and I'm sorry -- I know we'll all be looking at that transcript

12 and it's a nightmare to try to have to look for things all the time.

13 JUDGE LIU: Thank you very much and we'll resume at 12.30.

14 --- Recess taken at 12.01 p.m.

15 --- On resuming at 12.31 p.m.

16 JUDGE LIU: Yes, Mr. McCloskey, please continue.

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

18 I will continue the chronology of the forcible transfer, again

19 trying to lend you some of our insight into Colonel Blagojevic as we go

20 through. And I finished speaking on sort of the background and the

21 history and the leading up and the intent upon which this attack was

22 waged. Now I want to take you to -- briefly to I think it was either July

23 10 or 11 at the Kula lookout hill about Pribicevac. We had a young

24 Bratunac Brigade officer, P135 was present there in the presence a General

25 Krstic and Colonel Blagojevic. At that time General Krstic told this

Page 12354

1 officer something to the effect, take an excavator and get rid of some

2 obstruction down the road towards Srebrenica. And we heard this somewhat

3 alarmed this young man and he went away and made a call shortly after that

4 and got Colonel Blagojevic on some sort of telephone or radio and said,

5 Colonel, this is -- something to the effect, this is a very difficult

6 task. And I think the Colonel's response is an important one to consider.

7 It sheds some light on Colonel Blagojevic. Colonel Blagojevic said well

8 something to the effect of, just the job done. Do the best job you can.

9 And this particular point is illustrative of a couple of issues as you

10 know. It shows, and the next events will show, that Colonel Blagojevic is

11 a man that is going to do his best to follow the orders of his commander

12 and see to it that his troops do. It also shows a general in a corps

13 tasking a brigade soldier, an officer directly. And it's important and I

14 will point out other examples of this later, but this is not an abnormal

15 happening, this is not some symbol that there's is a breakdown of

16 communication as I'll get into later. What generally as we've seen happen

17 is the soldier goes back and one of the first things he does is talk to

18 his commander and get it clarified. So here we see Colonel Blagojevic

19 working closely with General Krstic on the eve of the fall of Srebrenica,

20 communicating with his protege, this young officer, and that tells us a

21 lot about Colonel Blagojevic, something we need to consider as we go

22 through these other facts.

23 And before I get into the second part of the forcible transfer, I

24 just want to outline you on -- again, I want to concentrate on

25 Colonel Blagojevic just in a broad sense. 11, 12, 13 July he is active,

Page 12355

1 present in and around the Bratunac Brigade headquarters and the brigade

2 zone of responsibility, as is Mladic, Krstic, Popovic, Beara, Nikolic, all

3 the other people involved in this thing. His unit is the home unit; it's

4 his brigade headquarters. Yes, there are some meetings at the hotel but

5 the really secure places where they can speak is the brigade headquarters.

6 And after that from the afternoon/evening of the 13 July, Mladic, Krstic,

7 Pandurevic, Andric, the commander of the Birac Brigade, Trivic, the

8 commander of the 2nd Romanija Brigade and the other units involved in the

9 Zvornik Brigade all go off to Zepa. That happens the morning/afternoon of

10 the 13th. The troops go off and the senior officers, as we know, Mladic,

11 Krstic, go off later in the afternoon and then there's those stops along

12 the road. But this puts Colonel Blagojevic as the senior commander on the

13 ground from the evening of 13 July, 14 July, 15 July, 16 July. And then

14 we know on the 17th of July he leads a column. Now, what can we conclude

15 about this? We know the events, and I'm not going to go through them at

16 this point, the 12th, the 13th, the 14th. But Colonel Blagojevic is the

17 man that's there. He is the central figure now. He's the man in charge.

18 And by the 15th of July with all the issues related to the column and the

19 Muslims running around in the woods and the coordination of the 65th

20 Protection Unit from the Main Staff, the MUP, Milici Brigade, elements of

21 the Bratunac Brigade, several different sorts of MUP, there's confusion.

22 And we see that in Colonel Milanovic report to the Drina Corps staff where

23 he recommends that Colonel Blagojevic take over command of this -- all

24 these units and take care of them. And we see on the 16th the report, the

25 daily combat report, where Colonel Blagojevic is going around and they

Page 12356

1 name the units, the 65th, the MUP, the various units.

2 So we now know by the morning of 16th July Colonel Blagojevic is

3 in command of all the units. Now, there are not crimes charged in that

4 time frame. I wish I had something I could give you firm evidence on.

5 Muslims in the woods, captured Muslims, I can't. I wish I could. But

6 what this does tell us is after 12, 13, 14, 15 July, probably some of the

7 bloodiest, most horrific days in the of this warfare, if not post-World

8 War II history of Europe, Colonel Blagojevic is respected still. They

9 trust him, they have confidence in him, they approve. It would have been

10 the Drina Corps command and Mladic himself approve that this man takes

11 charge of Main Staff assets, MUP assets from the Ministry of the Interior

12 as well as his own brigade in what must be a horrendous mess of Muslims,

13 detainees, combat, and murder. But they have confidence in him.

14 And I think without a shadow of a doubt if the man on the ground

15 who commanded the Bratunac Brigade troops working with the MUP and the

16 other people that on the 12th, the 13th, the 14th of July, if he had done

17 anything to mess with that plan to capture, detain, brutalise, murder

18 those people, his body would have been so booted out to Serbia,

19 Montenegro, or who knows where. You've heard what happens to people who

20 don't follow Mladic's orders. He's in a terrible spot. Did he succeed?

21 Did he pass the test? You bet he did. He gets promoted to guard other

22 troops. And then after that he gets further accommodated by being sent

23 off to Zepa. He's now got to take part in combat, lead troops into combat

24 after the exhaustion of everything he's been through. They trust him,

25 they have faith in him, and that's because of the job he helped do during

Page 12357

1 the 12th, 13th, 14th of July; there's no other reasonable conclusion to

2 that at all. And I say "helped". I don't want to put it all on

3 Colonel Blagojevic; it's not, as you know. It goes to General Mladic,

4 General Krstic. It goes to the commanders that hatched this thing and let

5 it happen. There's no other reasonable alternative than that. I'm trying

6 to give you insight into him and into the circumstances that will would

7 allow you to conclude that he was part of it and that has to be

8 considered.

9 All right. Now we're at the actual attack part of the forcible

10 transfer which I'm not going to spend a lot of time on. You can see the

11 UNMO reports, the constant shelling of civilian targets. I've briefly

12 spoken on that. The attacks on the OPs. On 11/12 July as we get closer

13 to these events, we see a Bratunac deminer get killed as they're coming

14 in. The ultimate contribution to any event is to give your life for it,

15 which a poor Bratunac soldier did. I've already mentioned Jovo getting

16 instructions from the duty officer. So clearly as we end the pressure and

17 the attack and we get into the days of 11/12 July we see that the Bratunac

18 Brigade has played a significant role in that. Now, there's been some

19 suggestion that these people didn't -- were not -- they had some choice,

20 that they weren't forcibly required to leave. I'm not going to spend a

21 whole lot on that but I will point out to you the key evidence as I'm sure

22 you recall -- well, the history of course and what happened and the

23 threats and the shelling. But also Mladic is there. He's on film. We

24 can look right into his eyes and his head because he speaks his mind and

25 he tells them: You have a choice, to survive or disappear. And who

Page 12358

1 invited who to the Fontana Hotel, I can't sort out what difference that

2 makes. I can't believe there's going to be a suggestion that the Dutch

3 were the ones that organised and they're the ones that sent everybody on

4 their way, the Dutch who were conquered militarily, were disarmed, and

5 were totally intimidated by Mladic, who had a pig sliced open, if you

6 recall, during the meeting. You can hear the cries of the pig. It scared

7 the daylights out of Nezir Mandzic and everyone else. The idea that the

8 Dutch did this or that the Muslims had any kind of a choice, look at the

9 statements of the Muslims, look at that phoney 17 July document, even

10 Deronjic, who I don't suspect you pay a lot of attention to but some.

11 Like I've said with Momir Nikolic, Miroslav Deronjic, look to what they

12 say but make sure it's corroborated by something. He acknowledges that

13 the 17th of July document is a phoney. But if you want to go right to the

14 heart of the matter we've gone over it, I won't show it to you, Mladic in

15 intercept.

16 First, there's an intercept where some soldier says, well, we're

17 arranging for the transportation of those who want to go and those who

18 want to stay. Something to that effect. Maybe there is a choice. Then

19 Mladic gets on the radio and says, basically, everybody's going. And that

20 was that. So when it comes to the Muslims and whether or not they had a

21 choice, I think it's pretty clear.

22 Okay, that brings us to the second part of the forcible transfer,

23 the process of moving people out on the 12th and 13th. Again I'll point

24 to you that the trial brief on that point, our case as you recall had

25 Mr. Butler talking about records of buses, fuel accounting records, and

Page 12359

1 Momir Nikolic on the ground coordinating things, this sort of thing.

2 Well, we add to that the testimony of Defence witness Trisic who was

3 assistant commander for rear services that acknowledges that he's involved

4 in this process and there's some debate about whether these fuel records

5 are accounting records or disbursal records, or something to that effect.

6 What difference that makes, I don't know. Keeping track of fuel is a

7 golden -- is a commodity that is a hugely important factor in a forcible

8 transfer case, and the Bratunac Brigade was doing it and Trisic was

9 overseeing it. One of the very few assistant commanders Blago ever had.

10 And in his own words, he's part of it. He tries to distance himself from

11 Blagojevic; that's a sign of his loyalty and the respect that he has for

12 the man that's on trial. Clearly, he can't separate himself in that small

13 brigade, in that small town.

14 Okay, then securing the area of Potocari and organising and

15 securing the crowd. Well, you've seen in the Prosecution's case evidence

16 of the number of the Bratunac Brigade MPs were there. I think it was

17 Zaric who is the guy who can be seen on the video putting people on the

18 bus. He says 20. Trisic says most of the MPs were there if not all. I

19 can't remember his exact words but he's got them all there. That's

20 interesting when you look at the testimony of a protected witness P138, a

21 senior person in the Bratunac Brigade MP, who says the only MPs were there

22 were there for the purpose of securing Mladic. When you've got the senior

23 person, when you've got P138 saying the MPs are only there to secure

24 Mladic and the senior officers, what does that tell you what he's leaving

25 out? He knows his people are involved in other things and he knows they

Page 12360

1 are bad. After the Defence case all these MPs, both 92 bis witnesses and

2 live witnesses, many of whom told some of the truth to the point where

3 somebody admits that accounting for separated men. I think we only had

4 one person who finally acknowledged that people were being separated.

5 Over and over and over again we saw these people both in our case and

6 their case, guys that were there for both days and sometimes getting up:

7 I never saw any separations. You know what that means or you did

8 before -- they know what the separations mean. That's another topic.

9 I'll get into that later. There's also Bratunac Brigade battalion

10 officers. We see -- as I mentioned the guy being put on -- there's a

11 picture of all those guys lined up. You can tell that they are by the

12 buses. The buses are parked right by the crowd which is right by the UN

13 building and they're all walking in the direction of Potocari. Now, their

14 testimony on that was so far off the map and completely inconsistent.

15 People get confused but if you listen to what those guys were saying they

16 were more than confused; they were trying to cover up something. No

17 matter how you take that photograph, when you've got a line of guys with

18 rifles and a bunch of civilians, that is in effect provided security to

19 the crowd. These people aren't going to run into the cornfield with those

20 guys with rifles there. And they're there and they're helping to secure

21 it. Whether they were ordered to or not, those are issues I can't answer

22 for you. But when you look at the testimony of these folks it doesn't

23 make sense; they're covering up something.

24 Unlike what was argued by the Defence, we're not saying that the

25 soldiers and the officers of the Bratunac Brigade in Potocari on the 12th

Page 12361

1 and 13th are committing atrocities. The Defence seems to make Prosecution

2 arguments for us; they aren't Prosecution arguments. That is not

3 something we said. Believe me, if I had evidence of that you would have

4 seen it. We have one woman that is convinced that an MP, I think it was

5 Nenad Djokic, separated her husband. That is an atrocity, that is a

6 horror. That is the one we have for you. We know they were separating

7 people. From all the other evidence, that is a horror.

8 As for the killings, the beatings, the corpses, the disappearing

9 in the night, the stuff that I will leave for you to look at in the

10 evidence, no, I don't have the Bratunac Brigade doing any of that. All

11 these guys had similar uniforms. We were lucky to get the few IDs that we

12 got in the town. But what they weren't there doing is securing the area.

13 These civilians were the responsibility of the army, General Mladic,

14 General Krstic, and Colonel Blagojevic. These guys shared responsibility

15 for the security of these folks. It's not that Main Staff doesn't kick

16 the brigade out. So when they're sharing security and this horror is

17 going on for over a two-day period, they have criminal responsibility.

18 You can call it failing to prevent, you can call it foreseeable result of

19 a forcible transfer as it's been set out; they're very similar. But

20 Colonel Blagojevic's men are part of this, they are taking part in it, and

21 they are failing miserably. I will go over the key military precepts

22 about what it means when officers and soldiers allow things to go on,

23 allow crimes to go on and do nothing about it. That was perhaps not as

24 clearly stated in the Prosecution's case as it could be. If I could do

25 this again I would put that evidence on better. But by the time guys like

Page 12362

1 Kovacevic, the commander of the 2nd Romanija Brigade, and others were

2 finished answering my questions, when I gave them hypotheticals from

3 generals I saw make statements on CNN, I think these things were clear and

4 couldn't have come out of a better mouth. I'm digressing and I'll go over

5 those later. In any event, I want to clear up that issue that the

6 Bratunac Brigade was terrorising people. Yes, in securing people and not

7 doing anything, they have criminal responsibility. I do not have any

8 individual evidence aside from what I've talked to you about that and I'm

9 sure you understand that.

10 All right, now, Momir Nikolic, as he's admitted, coordinating the

11 efforts. And interestingly enough the Defence has attacked that. I don't

12 know what they think Momir Nikolic was guilty of if he wasn't coordinating

13 and doing what he did and why he exposed himself to life imprisonment for

14 his admissions. The Dutch see him speaking to people and coordinating

15 things, he says he is. And again, Colonel Trisic when asked by me

16 directly says, yeah, he was coordinating things. Trisic was there, so

17 that issue is over.

18 Bratunac MPs were involved in this counting of men and of course

19 they would have been coordinating the movement of men on the 12th from

20 Potocari to the hangar in Bratunac. As one of their people said he was

21 doing that. And I'm going to finish this particular area up again and

22 I'll briefly go over an exhibit. It's P203 to give you an idea of the

23 knowledge and involvement of the Bratunac Brigade headquarters. Because

24 what I'm showing you is an intercept from 13 January, 0705 hours where a

25 general - it appears it's likely General Zivanovic, though that's not

Page 12363

1 critical; it's not a Main Staff general as we can see from the

2 context - but he's looking for Nikolic. And he gets someone related to

3 Nikolic in a military way, and that's police commander Jankovic. So that

4 tells us it's Momir Nikolic he's looking for and he's getting police

5 commander -- the commander of the Bratunac MPs Mirko Jankovic on the

6 phone. So we have likely General Zivanovic calling up asking for Nikolic

7 and getting Mirko. He wants to know how many of the Turks have been

8 transferred and Jankovic tells him: "About one third have probably been

9 transferred and there's another 5.000 to go."

10 So the Bratunac Brigade headquarters is fully apprised of what's

11 going on and they apprise the -- this general that is calling. Then the

12 general asks: "Where is Nikolic?" And is told that he hasn't come in

13 yet. Then he says: "Where is your commander? Where is your superior?"

14 He's now referring to Colonel Blagojevic. At one moment he's the

15 chief of security and the next moment he's the commander. All these folks

16 are working together. Nikolic would know most about what's going on; he's

17 coordinating it. He wants to know about where the commander is, what he's

18 up to. And then there's this business about: "He's up there with guys

19 from up there." It's not clear where that is. It shouldn't be the woods

20 at this point in the morning of the 13th. We know that Krstic and Mladic

21 later in the morning have to go down to Vijogor, inspire the troops to get

22 going to Zepa because Pandurevic and Trivic complained about that trip.

23 So they're going to be around in the morning until they go to Vijogor.

24 There would be no reason for Blagojevic to go there with him. But be that

25 as it may, this guy knows where his commander is and the general is

Page 12364

1 interested in the commander. He says the Main Staff is bothering me every

2 five minutes, so keep me informed, something to that effect. There has to

3 be a corps person getting questioned by the Main Staff, so he calls the

4 brigade command to find out what's going, and he gets information.

5 Perfect example of the system that we have described working, and that is

6 in the area of security and in the area of military police and command

7 issues.

8 Well, we have the crimes that I've mentioned in Potocari of the

9 12th and the 13th and were they the foreseeable result of the JCE to force

10 people out? Of course they were. Ethnic cleansing throughout the time

11 period is involved this kind of persecution and murder. They knew it

12 involved that. There's just no question that in July 1995 the vortex of

13 hatred was very well-known to anyone involved and that without serious

14 control exercised over the men, this kind of thing would happen. That's

15 any army that goes through this kind of horrendous warfare, especially

16 this particular army. There's no question that Colonel Blagojevic was

17 very familiar with the hatred, the animosity, that had been going on.

18 Okay, now, I want to get into -- more into the murder operation

19 itself. But before I get there I just want to reiterate some basic

20 structures of command which I know you know but sometimes we forget how

21 important they are. This is an army that is based on professional JNA

22 officers, one of the best militaries in Eastern Europe. It's near the end

23 of the war. The structure is sound, we've seen it. It's very simple;

24 the Main Staff, the corps, and the brigades. Each gives orders to the

25 other and each of those orders are followed. Now, I briefly touched on

Page 12365

1 sometimes they skip echelons. This is not abnormal. It's not always

2 supposed to be like this always, but when you've got guys like Mladic or

3 any general, Patton or otherwise, these guys are going to be ordering guys

4 around and it's very clear what the policy is in dealing with that. They

5 have a decision to do it and in a lot of cases they will do it. In other

6 times they will inform their commander before they do it and certainly

7 they will inform their commander after they do it. We've seen numerous

8 examples of that.

9 One, you recall the testimony from Kovacevic, the commander of the

10 2nd Company, the 2nd Battalion. He had Mladic saying, "on to Mladivici

11 [phoen]." He told all the guys that. What he testified happened is that

12 the guys went and hid behind a building and waited to talk to their

13 battalion commander to get the exact orders of what they were supposed to

14 be doing. We actually see on the video Mladic, in front of Pandurevic and

15 some of the other brigade commanders, saying: On to Potocari, on to

16 Potocari. Then you see Pandurevic going something to the effect of:

17 "Wait a minute, we need to get the Browning up on the hill. You know, we

18 don't know where the Muslims are." We know that later, I think it was the

19 commander of the 2nd Romanija Brigade, that they didn't go to Potocari on

20 that day, on the 11th, that reason prevailed. They stayed in their

21 positions, they consolidated and they didn't go in into the morning of the

22 12th. Yes, commands can skip. But then people get together, they talk

23 about it, they communicate it, and things can change. This is not an

24 abnormal happening. It shouldn't be viewed as some sort of abnormal

25 cancer, or the prelude or the existence of some separate chain of command,

Page 12366

1 or of some warped army . Because we have repeatedly situations where

2 people come back and are caught in the loop. And then you see their

3 troops are also involved in it. Troops are not being used in secret

4 without the authority of their commander. So keep that in mind. That is

5 not an abnormal occurrence and should not be treated as such. You'll need

6 to look very carefully, but you'll see what is reasonable when you do.

7 Because of this structure and because it is such a serious and

8 important structure for the lives of the soldiers that are in it,

9 following the command of your echelon, keeping your commanders informed,

10 it's very difficult for the defendant in this situation to defend himself.

11 He has to have an alibi. He's in Zepa or he's somewhere else and doesn't

12 know about what's going on. It's difficult for them to say I just -- I

13 wasn't informed. I didn't know. That's why they had to, in my view,

14 develop this theory of the so-called separate chain of command which just

15 does not hold water. We spent a lot of time on that in our brief and I'm

16 not right now going to go into the detail of it but it just doesn't hold

17 water. What we both agree on is the security chain has this special

18 significance for counter-intelligence and they can communicate with each

19 other secretly regarding matters of counter-intelligence, which is

20 generally plots by people inside your own unit to do bad things or plots

21 outside units or information and snitches and -- counter-intelligence work

22 is important. And Mladic, especially in his later years, was getting

23 paranoid, perhaps for some reason, that people were plotting his

24 assassination. And as much we saw from that October document that he's

25 highlighting the importance of counter-intelligence and even giving it

Page 12367

1 more than the usual, which I think was 70/30, 70 counter-intelligence and

2 30 military police rule and he goes to 80/20. So he's emphasising it, he

3 wants the security people to take a greater role in it. I think

4 Mr. Butler and the Defence mostly agree on that. What we will disagree on

5 is that this counter-intelligence idea which does not anticipate military

6 police in any great degree can be used as a vehicle which can completely

7 bypass the chain of command and use resources without the commander's

8 knowledge and use troops. There's no connection between it. There's no

9 reasonably evidence that that has occurred. In fact, the contrary,

10 and you'll see it as we lay it out.

11 Another military principle that is important is that when a

12 commander allows his troops to do something, he is in effect encouraging

13 it. Again, you recall I think it was Mr. Kovacevic I gave him two or

14 three hypotheticals and he gave us a very straight military answer. Yes,

15 if the person knows bad things are going on and doesn't do anything, that

16 is in effect encouraging his troops to carry it out. That comes from the

17 lips of the VRS. And then I gave him the hypothetical: Well, what about

18 if you're a commander and you know what's going on. He said: I already

19 answered that. He didn't want to answer it directly because it went right

20 to his commander. In effect it didn't change his answer either. This is

21 a military principle that you need to use in your evaluation. The

22 military are very tough on each other because their actions and inactions

23 are so critically important. There's a section in the rules that talk

24 about the importance of leadership and leading in example. Look at

25 Abu Ghraib. I don't want to go into that but these aren't privates. The

Page 12368

1 commander sets the tone for what's going on. Very important for

2 understanding these events.

3 Dragan Obrenovic, Drago Nikolic. Drago Nikolic calls him up and

4 tells him this: These -- they're bringing up thousands of prisoners and

5 they need -- they're going to be killed. Obrenovic says something to the

6 effect: We have to check with the commander. He says: The commanders

7 are in on it, everybody knows about it, it's happening. Basically,

8 Obrenovic says: Yeah, you're off the IKM and I'll make these people

9 available for you. Dragan Obrenovic pled guilty to 7(1) responsibility

10 for authorising the murder operations to come to Zvornik and he explained

11 it in his testimony to some degree. I asked him: Did you authorise Drago

12 Nikolic?

13 He said: Yes, tacitly I did. And I relieved him, and I gave him

14 people and he has been authorised. That means that when people are

15 shooting people at Orahovac, Obrenovic's fingerprints are on it. He's the

16 commander that's authorised that to happen. It can be done tacitly, it

17 can be done directly or it can be done by inaction. These are principles

18 that are absolutely crucial to this case and you've heard them from the

19 lips of the VRS and I hope you will take them to heart.

20 Does Colonel Blagojevic know about the murder operation? Well, as

21 you know that my entire talk has been built around, of course he does, he

22 has to for all the different reasons. Let me go into -- let me try to

23 help you go through it the way I've gone through it for years now. It's

24 important to figure out when this thing was hatched to figure out when he

25 knew about it. And let me briefly go through my view, our view, on that.

Page 12369

1 11 July we've got the VRS command, Mladic, Zivanovic, Krstic,

2 Kosoric, Popovic, Jankovic, they're all together at the conclusion of this

3 operation at the Hotel Fontana. This is planning and decision time.

4 They've finally been able to collect themselves from what turned out to be

5 a surprise lack of UN response. They've got Srebrenica; they're terribly

6 elated and this is the time to make decisions about the future. It's

7 simple common sense. They become aware of large numbers of Muslim men in

8 the compound at Potocari. They're not really sure where the 28th Division

9 has gone that night. They know the usual escape routes, but as Butler

10 said they were worried they would go to the Bandera triangle. They do

11 become aware of these large numbers of Muslim men. Remember: Mladic is

12 fixated on Muslim men and surrendering, and says, "Surrender and you

13 should survive." So there's clearly a fixation on these men. So this is

14 the first time that they actually see large numbers of Muslim men in their

15 grasp. Whether there was some plan that was suggested by Deronjic to kill

16 everybody beforehand, who knows? We may never know. But I do know they

17 can't really execute a clear plan unless they have an object, and they

18 don't know they have the object until the 11th of July in the evening when

19 they can see for their own eyes those victims in Potocari.

20 Besides Mladic's fixation on them the night of the 11th we don't

21 know much except that it is decision time. By 3.00 a.m. we know from

22 intercepts they start seeing the column in the area of the 4th Battalion.

23 And by 7.40, when it's daylight, they can report that they've made it

24 through the minefields. Now they're beginning to get an idea of where

25 some of the Muslims are going. We know that Mladic and Krstic are present

Page 12370

1 at the Bratunac Brigade headquarters that morning. We know that from

2 Vasic's thing. There's some meeting with at least civilians but with

3 Mladic and Krstic present at the command meeting. Blagojevic is going to

4 be around and he's going to know about it. I can't give you of course any

5 more information than that.

6 But at 10.00 a.m., we get our first glimpse into what Mladic's

7 intentions are because here is when it's announced that they are going to

8 screen military aged men from 16 to 60. Given what Naser Oric had been up

9 to and the crimes that he's committed, this is a fair, reasonable thing to

10 do. They had intelligence on it, they had a list that we know. They

11 would involve identifying military aged men, accounting for their names,

12 getting their IDs, interrogating some of them and planning for their

13 interrogations. Of course, it would have involved feeding them, treating

14 them. And as such, they could get valuable intelligence. Not only who

15 had been committing crimes again them, but they'd be getting a lot of

16 people to exchange for the Serbs that were in Muslim custody.

17 So this was a normal, valuable, important thing to do. Then we

18 have the evidence of Momir Nikolic meeting with Popovic and Kosoric where

19 he is informed of the plan. Now, again of course we need to take

20 Momir Nikolic with a grain of salt. When you look at this story, does it

21 fit? Does it make sense? Is it Momir Nikolic trying to get a deal? What

22 is it? Look carefully at it. It does fit. It makes sense. It's not

23 overblown; it's not underblown. It is what it is. What I find important

24 about that is that Mr. Nikolic is able to acknowledge that he points out

25 the schools, he puts himself responsible for the schools which he knows

Page 12371

1 were butcher factories later on that day, and yet he's willing to tell us

2 that. He also points out that the plan is to kill people, that also in

3 Bratunac at Bratunac, which is critical because obviously if they're going

4 to kill people the commander's going to know about it. But he mentions

5 the brick factory, Ciglana. Later, we hear form Deronjic the same thing.

6 He says Beara is obsessed with killing people at Ciglana. Well, Deronjic

7 and Momir Nikolic, as you know, are complete opposites in the way they do

8 things. I don't think they could get a story together if they tried. So

9 why Deronjic and Nikolic are together on Ciglana leads me to believe

10 there's some truth to that. You saw that place. That place was right out

11 of a horror film. It's the perfect place to put hundreds and hundreds of

12 people in order to kill them.

13 But the main evidence I want you to look at is not Momir Nikolic,

14 it is what started happening with that separation because this is what

15 will tell any reasonable person what is really going on here and that none

16 of what I just described happened. There was no accounting for, there was

17 no screening and getting the soldiers and the -- they wrapped in

18 everybody. And don't forget the film with all the little old Muslim guys

19 with their berets and their sacks walking down. These guys were no threat

20 to the VRS. There were guys that only had one leg. There were retarded

21 people. There were little kids that got killed, old men. This is where

22 they're telling us in the world what their real intentions are. If you

23 look at the face of the Muslims, they don't know what's going on. The

24 Dutch are scared; they talk about that. When you take such a huge

25 military advantage of accounting for atrocities, getting people together

Page 12372

1 for eventual handing over and you just ignore that and you just brutally

2 put everybody together, you don't get their IDs, you don't feed them, you

3 barely give them enough water, this is the signal that these people are

4 marked for death and that signal is repeated over and over again as we go

5 into the afternoon of the 12th of July, the evening of the 12th of July

6 the horrors that are occurring at the hangar - the witness explains

7 this - which is right down the street from the Bratunac Brigade. So if

8 there's any doubt in the afternoon what these people are marked for, by

9 the time we get to the evening of the 12th when they're being allowed to

10 be slowly butchered and tortured in that school, it's obvious what's going

11 on. These people aren't going to be held for exchange, they're going to

12 be killed.

13 What's important to point out as part of that, Luke school which

14 you saw down far away, down by Vlasenica, the same thing that's going on

15 in Potocari is going on on the 12th of July as we know from Major Boering.

16 They're separating out the military age men. Now we don't have any

17 survivors from the 12th. But you know they were killed. I mean, that's

18 not a tough inference to make. They were separated. They were likely put

19 in the same place as the guy that was separated on the 13th. The person

20 that was separated on the 13th was there all day with I think the 15, 20,

21 30 people who were also separated with him. They were taken away the

22 afternoon, evening of the 13th and all shot. And he recalled hearing one

23 of the soldiers say: Take them to the place you took the others. There

24 was only one group on the 13th so that was likely a reference to the

25 people killed on the 12th. Impossible to say, but I want you to remember

Page 12373

1 those facts, because we see on the 12th the same thing we're seeing on the

2 -- in Potocari. That the separation is going on, and this is not for any

3 legitimate purpose.

4 Okay, the 13th of July. It's not critical for the Prosecution's

5 case that you find that this murder operation was hatched on the 12th. It

6 can happen anywhere between the 12th and the 13th. It depends really on

7 your personal viewpoint of truth. I personally, the Prosecution's

8 position, is that there is sufficient evidence to believe when we see how

9 the people are treated, that it's clear they are marked for death.

10 Mladic -- they are now in front of the cameras, and they're having

11 meetings on the night of the 12th, planning for Zepa. Everybody's told to

12 get ready for Zepa. Zepa becomes the next big issue. Where is Mladic

13 going to suddenly decide that, oh, all these men that were set for

14 exchange, now let's decide to kill them. How does that happen? He's not

15 in a position to be meeting with people, to be deciding. It makes much

16 more sense that this happened the morning of, and it just doesn't make

17 sense that it would happen another time.

18 The evidence that there's a murder operation becomes overwhelming

19 on the 13th, because as you've seen, the same thing that happened in

20 Potocari, that happened in Luke school is happened along the road, from

21 Nova Kasaba to Sandici, people are being separated. People are being

22 individually killed. People are not getting sufficient water, medical,

23 food, anything. They are having their IDs taken, destroyed. They are

24 grouped in an organised way. The little kids are allowed to leave. The

25 same operation we've got going in Potocari and on the 13th the thing is in

Page 12374

1 place. The kicker for anyone in any review of this evidence is that at

2 11.00 a.m. we have a fellow with a hole in his back upon falling in a

3 river upon being shot by an execution squad in the morning along the Jadar

4 river. He was the fellow that first came in and held in the building of

5 the 5th engineers, then he moves off to the headquarters of the MUP then

6 he gets moved off to this warehouse right on this intersection then a bus

7 comes. Now, a bus on the morning of the 13th is a valuable commodity. No

8 private or sergeant or lieutenant can get a bus unless he's got approval

9 from his command. Krstic and folks are still around, they're moving those

10 women and children out of those buses, so suddenly there's a bus and 16

11 Muslims get put on that bus with an execution squad and bussed to a little

12 area down to the Jadar river.

13 This is an organised execution. That is your first major

14 indication that a plan is now being executed. Not only was there a plan

15 to do it by the way that they were treated and now we see it happen. They

16 had to know at 11.00 a.m. on the 13th of July that they were going to get

17 thousands because they didn't get those thousands until later that

18 afternoon when the Muslims started responding to the call of Momir

19 Nikolic, and Mirko Jankovic and others along the road.

20 In any event we get to the Cerska Valley executions at 1.00 p.m.

21 of the 13th where a witness sees three buses, an APC followed by a

22 backhoe. He hears automatic weapons fire. I think he walks across the

23 grave. There's about 50 or 60 people can fit in each bus. We find 150

24 bodies, many of which were tied. So there's evidence of backhoe being

25 used. Clearly, this involved significant organisation and had to be done

Page 12375

1 with the approval of the highest levels. So clearly by 1.00 p.m. there

2 can be no doubt that there is a murder operation in place and that it's

3 being executed. And as the commander of the Bratunac Brigade, where this

4 is happening right down the road, Konjevic Polje is in his zone of

5 responsibility, he has to know about this, he has to. Look at what

6 Obrenovic knew. Obrenovic, on the 12th, knew the disposition of the

7 units, where the Muslims were coming from. We see all that in the

8 intercepts. Of course, Blagojevic is going to know the same thing and

9 he's going to know what's going on with the murder operation.

10 Beara is now present; he's along the road. He's at the

11 Bratunac Brigade headquarters. The abuse goes on in Potocari. And

12 another very important point is DutchBat tries to follow a bus to the

13 Vuk Karadzic school and they get grabbed, hauled out of their vehicles,

14 and taken over to the police station and not allowed to get anywhere near

15 those buses that are now collecting and dropping people off at the Vuk

16 Karadzic school. Clearly, there's a plan afoot to shut off what we call

17 the eyes and the ears of the Dutch Battalion. Why not let the Dutch watch

18 the schools? Why not bring in the ICRC? Or the UNHCR? MSF? They're all

19 there. They could have watched and helped care for, the simplest thing in

20 the world to do. It could have even been done privately. But if word got

21 back that someone did it, or allowed it, their career was over and it

22 would have been very dangerous. It didn't happen. People knew what the

23 plot was and went along with it. When you're going along with a patently

24 illegal order you've going outside of the chain of command, you're using

25 your own moral decision-making power of whether or not to go with it or

Page 12376

1 not with it. And when you decide to go with it you are, at the very

2 minimum, supporting and encouraging it. I would argue that you would

3 intending it as well, however that's no longer on the table.

4 Kravica warehouse, I'm not going to spend a lot of time on the

5 Kravica warehouse although it's a fascinating situation especially after

6 you've seen the warehouse. The bottom line is there was over a thousand

7 people there and you cannot have a compulsive or impulsive murder of a

8 thousand people, it's impossible. You may kill a few; you might even kill

9 a hundred or two. But you saw the different sides of that warehouse. You

10 can't suddenly blast everybody on both sides of the warehouse. You at

11 least have to walk down to the other side and blast them as well. And if

12 you're privates and soldiers you're not going to do that unless your

13 command is in on it and gives you the authority. So at the very least the

14 command at a higher level gave authority for the subsequent killings.

15 Interestingly, we know from one of the survivors that there's a lot of

16 gunshot going on that he hears outside and his guard is saying: See, you

17 Muslims are attacking us. Well, what that is likely is the people being

18 killed at the other end and the guard is coming up with a story to keep

19 these people calm. And then the thing goes down to kill them. We only

20 have a snippet of a video but it doesn't -- you see the bodies piled up,

21 you hear the machine guns in the background. You don't see a frantic

22 gunfight going on or a slaughter by privates.

23 This may never really be known but what is known is this had to

24 have the backup at some stage of the authorities involved. There's just

25 no way you can kill that many people. They were killing them for hours

Page 12377

1 and hours afterward. It's right down the street from the

2 Bratunac Brigade. It's the check, the knowledge block for Blagojevic and

3 everybody else that a thousand people have just been slaughtered in the

4 area right down where he is and he's got some 5, 6.000 people in his

5 schools, they're guarded by his men, getting brutalised without food or

6 water. He does nothing. No ICRC, no nothing. He's got to know that

7 they're there, he's got to know that people are dying and dead along the

8 road. He does nothing; he's following his orders. He doesn't risk his

9 career, he doesn't risk his promotion. He does what he's told. His

10 people do what they're told. No one's stealing his people. They're not

11 going to do that without his knowledge, without letting him in on it. He

12 needs to know what to do with those people and where to send them and he

13 can't do it without them.

14 As the third man in a command chain, I say third man, it's Mladic,

15 Krstic, Blagojevic. That's the way it is. Two generals and a colonel.

16 We've got the MUP and we've got others. These are the commanders. These

17 are the key guys. Now, we have Beara, we have Popovic, we have Nikolic,

18 we have Drago Nikolic. These guys are staff officers. One of the reasons

19 they get charged with genocide is because staff officers in the security

20 branch have chosen to be in the security branch and it's an ugly job and

21 if you're chosen to be in that job, specific intent follows you into that

22 job, in the view of the Prosecution. But they are staff officers.

23 Colonel Beara can't hold a candle to Colonel Blagojevic.

24 Colonel Beara -- and we've made this very clear because we do not want to

25 suggest Dragan Jokic is a commander because there is a huge difference, a

Page 12378

1 huge difference. A staff officer an empty vessel and only has the power

2 that is given to him by his commander. Beara is nothing but a sicko, an

3 empty vessel, until Mladic gives him those orders. He doesn't have the

4 right to command troops, he doesn't have any troops, the same thing with

5 Popovic.

6 These guys -- I don't know how to communicate this to you but in

7 the military context they don't even go to the same function as the

8 commanders do. They don't have the power, the authority and you can see

9 it. And if I get time, I'll point you out some of the examples. You need

10 to understand it. It's the commanders that call the shots. They're the

11 ones that can make the difference, they're the ones that have the men.

12 Especially in the brigades. Remember, the Main Staff has the Protection

13 Regiment and 10th Diversionary Unit. The Protection Regiment's designed

14 to protect Han Pijesak and other areas. The sabotage detachment is a

15 sabotage mission to go in. They don't really have very many troops. The

16 corps is even less. They have a small MP squad, they've got the

17 5th engineers, they've got a couple of other units that aren't really

18 involved here. It's the brigade. He's got over 2.000 men under arms. He

19 knows where the fuel is, he knows where the logistics bases are. This is

20 their home base.

21 The brigade commanders are the key players in this and he's a

22 colonel. He -- I can't overstate that, that principle, how important the

23 brigade guys are. The brigade guys are the guys that are dying in the

24 trenches. The Blagojevic's are there to protect them and their town, to

25 give it in a positive sense. Not the Krstic's, Mladic's and the others.

Page 12379

1 So as a commander with honour, as the man that takes the blame when things

2 are bad that and gets the blame when things are good, when war crimes go

3 down they have to take it the same way. They can't just put it on the

4 evil staff officers.

5 I mentioned Bratunac, Potocari. They're tiny places. Commander

6 and his small staff, they know everybody. They know what's going on. It's

7 their backyard. Like any complex military operation the commander has to

8 know the objective, especially when Blago had other responsibilities. He

9 had to get men-- I've mentioned this-- he had to get men ready for Zepa

10 and other things. He has to know what's happening to his MPs so he knows

11 whether he can get them to Zvornik, get them to Zepa. He's got to know

12 where his battalion guys are. He's got to know the security operation

13 that he's helped create in Bratunac. And there's no reason --

14 MR. KARNAVAS: Excuse me --

15 JUDGE LIU: Yes.

16 MR. KARNAVAS: If he could refer to him as Colonel Blagojevic or

17 Mr. Blagojevic, but Blago, I think that's demeaning. I know it's

18 probably just a slip of the tongue but I would prefer if we could use a

19 little courtesy here.

20 JUDGE LIU: Yes.

21 MR. McCLOSKEY: That was a slip of the tongue. I don't remember

22 making it. It's something we call him for short and it's not meant as

23 anything demeaning. And I've tried, as you know, to call him colonel and

24 I will.

25 JUDGE LIU: Thank you. You may proceed.

Page 12380

1 MR. McCLOSKEY: I'm reading my notes, that's the problem.

2 There's no reason to keep the colonel out of this. There's this

3 feeling that we have because we're not involved in the military that this

4 is some crime where you've got a bunch of oil executives from different

5 companies that are together and some may be kept out and some may be kept

6 in. That's not it at all. There's no reason to keep Blago out of it.

7 There's no reason to protect some guy. Why would you protect

8 Blago -- sorry, Colonel Blagojevic. Why would you do that and leave

9 someone later on that the Tribunal could come back and point at you. What

10 they did if you remember Erdemovic's testimony, at Branjevo farm, they

11 made the bus drivers kill people. There's no reason to keep the commander

12 out of it. You need him, you need his troops, you need his fuel. You

13 need him to know to help. You can see the evidence and the other

14 intercepts and things that show that he's involved in the loop. But you

15 have to have him, there's no reason to keep him out of it, and there's no

16 way that you can create this separate chain of command.

17 Let me briefly outline what our viewpoint of the murder operation

18 is because it's another issue. I think that this Tribunal has an

19 overemphasis on the executing and the killing of people. It's natural,

20 again that's where our visceral reaction lies. But in Europe, in the 20th

21 century, genocide, which this case was is committed this way. It's

22 committed by separating, capturing the people you want to kill. It's by

23 detaining and guarding them, it's by transporting them to their execution

24 sites, it's by murdering them, and it's by disposing them. You got to

25 hide them. Burning them or burying them.

Page 12381

1 That's modern, wonderful, 20th century genocide and executing

2 people is only one part of it. All the rest are critical. You've got to

3 have all the rest. And the commanders that know each of these things are

4 the ones that are seeing they're done. Now, we know the evidence that the

5 Bratunac Brigade was involved in executions is -- there's not much of it.

6 And -- but one, two, three, and five, they're all over and it's not fair,

7 you know, to put this on the privates that are pulling the trigger.

8 That's not what this is about. That's another thing about this defence.

9 My superior did it, the security officers did it, they stole my men to do

10 it. So my commanders, my subordinates, my security and intel people, they

11 did it, I didn't do it. Absolute nonsense, historic nonsense. Please do

12 not focus overly on the executions. There are over a thousand dead bodies

13 in Bratunac. Fifty outside the Vuk Karadzic school. A thousand from the

14 Glogova grave. 10, 20, 30 -- who knows how many from Potocari? So we've

15 got plenty of death to pass around. We've got a Red Beret who's likely at

16 Kravica warehouse. We have Mevludin Oric who says an MP and a bus parked

17 in front of the Vuk Karadzic school takes people off the bus and kills

18 them. I think one retarded, who jolted when an MP walked by him, they

19 went and killed him. We know that the Bratunac Brigade MPs were guarding

20 all around the school and we know from the Bratunac MPs that the

21 Drina Corps MPs were not involved in guarding people that night. So it

22 had to be Bratunac MPs. Look at the horror -- and I'm not going to go

23 into it, I can't, I don't want to. But the horror and the murder and the

24 suffering that went on and the vehicles outside the Kravica supermarket,

25 in Bratunac, at the Vuk Karadzic school, at the hangar, at the old school.

Page 12382

1 And we now know that the Bratunac Brigade MPs were all over that. We know

2 from the protege that I discussed earlier that met with Colonel Blagojevic

3 on the hill he sees on the night of the 13th, Mirko Jankovic, the

4 commander of the MPs, calling with the megaphone people to help. Yeah,

5 the police were helping guard, they had civilians helping guard, and this

6 witness himself - if you give me a minute - Witness P135 went to help and

7 spent the night at that school and talks about wounded people, folks at

8 that school, and the school in Kravica. I'm not going to go through the

9 whole story of him going around looking for demining maps in connection

10 with his command and his reversal from what he told us to what he told you

11 in trial. That all came out in his testimony. He puts himself right in

12 the centre of the Vuk Karadzic school where they had 50 bodies from the

13 Defence's own witness.

14 Okay, the other point that I've mentioned to you for a long time

15 now is a little simpler than putting together all these pieces that I'm

16 talking to you about. It's the analysis of the troops and their

17 involvement. You see Momir Nikolic and the MPs in force, securing the

18 areas, helping separating, they're accounting, they're transporting,

19 they're guarding. Then we have Momir Nikolic and two senior MPs going

20 along the road calling people out to surrender. And we know from at least

21 one of the victims that he thinks a lot of people surrendered because they

22 thought the UN was calling them down and they were in a stolen UN vehicle.

23 You think the commander doesn't know that his MP commander, his chief of

24 security and the deputy commander of the MP is spending a long time doing

25 what they're doing? Of course he knows. They start from the brigade

Page 12383

1 command, for God's sake, and Beara's around and Popovic is around, I

2 believe. Of course he knows that's going on; these are his people. He's

3 part of it.

4 The battalions are in the woods. They are part of the operation

5 that results in thousands of Muslim men coming in. They are in the woods

6 one side of the Muslims and the Muslims are coming out on the other. So

7 while they are largely coming out to the forces of the MUP they are being

8 transported to Bratunac and then they come into the custody of the

9 Bratunac Brigade, but it's those soldiers in the woods that are part of it

10 because they are putting pressure on the people to go towards this road.

11 If you read of the surviving wood-walkers, you'll see the pressure that

12 was put on them in the woods.

13 Just a couple of more points on Mr. Blagojevic personally until

14 the break. I just wanted to mention that he's a long-standing senior

15 officer first in command of the Zvornik. He's chosen to lead the brigade.

16 From his reports, from his men, he's active, he's aware, he's

17 knowledgeable. He's close to his men; they communicate with him

18 willingly. He's a guy that will go into the woods and walk down with his

19 men into Srebrenica. Maybe he avoided Mladic, maybe he didn't. Maybe

20 he's lucky and just wasn't on the video. As I said, he can't avoid

21 Mladic's orders. He's present in and around his command post 12, 13 July,

22 same time Mladic, Krstic, and others are present, executing, carrying this

23 out. He knows about the thousands of men in the Bratunac schools. That

24 comes from one of his own witnesses who says: Yes, he told me to go look

25 after the men in the schools.

Page 12384

1 I can tell you, and it's self-evident, nothing was done to look

2 after those men. No one made any efforts, certainly not the commander of

3 the Bratunac Brigade, to do anything to look after those men in that

4 school. That statement is absolutely absurd.

5 Obrenovic knows all about the murder operation by the evening of

6 the 13th. Deronjic knows about it. And one of the things I leave you

7 with at the break is that with everything he must know from the 12th of

8 July to the 13th of July and the night of the 13th when you wake up in the

9 morning in Bratunac on the 14th, can you imagine the noise that must have

10 been going on in that town that night? The gunshots, the screams, the

11 agony, people injured, lying there unhelped, you could probably hear it.

12 What does he do? What does he do on the critical morning? Does he call

13 anyone? Does he get the international people in? Mladic and these other

14 guys, they're gone now. There's the agencies there, there's UNPROFOR

15 there, what happens? He has his people lead the escort that's going to

16 Zvornik. It's Mirko Jankovic and Mile Petrovic. I can't recall if

17 Momir Nikolic went or not, but other MPs as well. He has to know at this

18 time they're going to their death. He has to know that on the 14th when

19 he's got huge demands on resources at this point for Zvornik, the attack

20 on Zepa has just started on the 14th. He has to know what his command and

21 MPs are doing. So he authorises them to go. And he knows they're going

22 and they knows he knows he's authorising them to go. We see in the duty

23 officer's logbook of the MP brigade it actually says: "Escorting

24 Muslims," and I believe that was confirmed by one of the MP witnesses.

25 That's what it was. They were taking the people up to Zvornik. He didn't

Page 12385

1 have to do that. He could have kept his people at home, and at least made

2 somebody else do it. But it was the job at the time that needed to be

3 done. He was the man in command in the position to see that it was done.

4 The staff officers working for Mladic, working for Krstic, working for him

5 were facilitating it. They didn't get in their way. He gave his troops

6 to that job and there they went, to Orahovac, Pilica.

7 That's a good time and I'm getting close, so not much longer.

8 JUDGE LIU: Well, we also reserved the afternoon session. We'll

9 come back at 3.00. The hearing for the morning is adjourned.

10 --- Luncheon recess taken at 1.45 p.m.

11 --- On resuming at 3.01 p.m.

12 JUDGE LIU: Yes, Mr. McCloskey, please continue.

13 MR. McCLOSKEY: Thank you, Mr. President. I have a couple of

14 intercepts and a document and then I'll wrap up. So if I could ask

15 your -- everyone's attention for a little longer, I will go over a couple

16 of the important intercepts and explain to you the similar themes that I

17 have been going over in this argument. So if we could go to Exhibit 244A

18 which is an intercept from the 15 July, 0954 hours between

19 General Zivanovic and Colonel Ljubo Beara. As I know the Court is

20 familiar on the morning of the 15 July there were several thousand Muslim

21 prisoners still held in the Zvornik Brigade area that needed to be

22 murdered and that Colonel Beara was the person in charge of facilitating

23 his commander's tasks in that murder operation. And it is the position of

24 the Prosecution that this call to General Zivanovic is a call requesting

25 troops to help this out -- this job out. And I just -- to go over a few

Page 12386

1 of the important lines. Beara says: "You know that day I informed the

2 commander about it, Furtula didn't send Lukic's intervention platoon."

3 We know Furtula is the commander of the Visegrad Brigade.

4 Milan Lukic is an officer in that brigade.

5 Zivanovic responds: "Lukic is waiting at Blagojevic."

6 Beara says: "Lukic is here with me and his driver and we urged

7 that."

8 We know that by on the 15th Beara is up in the Zvornik area. But

9 General Zivanovic who has been replaced as commander from the evening of

10 the 13th is not aware of the -- Beara's actual location. He thinks Lukic

11 is at Blagojevic, meaning he is at the Bratunac Brigade, an indication

12 here that the Bratunac Brigade of course is the central location for this

13 operation, for the resources designed to implement it. But Beara corrects

14 him and says he's with him, which we believe to be Zvornik. And Beara

15 complains later on that: "He simply doesn't give a damn about what the

16 commander orders him to do. Well, now, that platoon has 60 men."

17 This is Beara referring to the order of General Mladic, given to

18 brigade commander Furtula, thinking Furtula is ignoring this order. You

19 may recall there's another intercept where Indic's men's bus breaks down

20 on the 13th, and they have to be sent for. So by the 15th they're still

21 unaccounted for, at least by Colonel Beara. And Beara is saying: "Have

22 him send at least half."

23 Meaning have the person he thinks is the brigade commander -- the

24 corps commander Zivanovic, have the brigade commander send at least half

25 of his platoon.

Page 12387

1 Zivanovic says: "I can't decide that anymore."

2 At this time Zivanovic is no longer the commander of the

3 Drina Corps. He in this response is clearly indicating to Beara that he

4 can't get a brigade commander to provide troops anymore. He's no longer

5 the brigade commander. He refers him to extension 385, which is Krstic.

6 That shows us a couple of things, first here we have the security officer

7 for the Main Staff trying to get this job done. He is not just stealing

8 troops, he is not going to brigades and just taking troops without the

9 knowledge of everyone, he's going through the normal chain of command.

10 He's going to the person he thinks is the commander of the Drina Corps,

11 Zivanovic, and he's trying to get Zivanovic to get him to get this brigade

12 commander to release these troops to him so he can get the job done. It

13 shows the situation a staff officer is in, even someone as big and as

14 influential as Beara. This is the perfect example of the chain of command

15 working the way it should and that Blagojevic is on the tip of the tongue

16 of the Drina Corps General Zivanovic as a person, or a place I should say,

17 where a killing squad should be. So we see that for two purposes.

18 Now, he refers him to 385 which is General Krstic, because Krstic

19 we now know the commander. Remember, this is the morning of the 15th.

20 This next one Exhibit 245 is a few minutes later. General Krstic has been

21 leading the campaign in Zepa now for a day. The attack started on the

22 14th. So Beara is getting him at a difficult time. But we see Beara goes

23 into the same thing. He says: "General, Furtula didn't carry out the

24 boss's order." This is Mladic.

25 Krstic says: "Listen, he ordered him to lead out a tank, not a

Page 12388

1 train."

2 It's hard to say exactly what that means but it appears he ordered

3 him to provide a smaller number of troops not a huge number of troops.

4 But Krstic clearly knows what Beara is talking about. So Krstic knows

5 that Mladic has made an order. And then Beara says: "But I need 30 men,

6 just like it was ordered."

7 And Krstic now: "Take them from Nastic," who is the commander of

8 the Milici brigade, "or Blagojevic, I can't pull anybody out here for

9 you."

10 He's got the attack to go. He refers him to Nastic to Blagojevic.

11 He says: "Take them." Of course, we have Beara going through Krstic in

12 order to request them, so there's not any taking going on. We see this a

13 little bit later. As they go back and forth, they talk about the Boban,

14 Indic, these are the men they want. And then Krstic says: "I'll see what

15 I can do, but it'll disturb a lot."

16 Disturb his attack which he has on different axes at Zepa, which

17 is a fight at this point on the 15th.

18 "Check down there with Nastic and Blagojevic."

19 Again, he's now saying check with these brigade commanders, check

20 with them.

21 Then Beara says: "But I don't have any. If I did, I wouldn't

22 still be asking for the 3rd day."

23 Then he says: "Check with Blagojevic." And then he suggests,

24 "take his Red Berets." This is his special unit, of the Bratunac

25 Brigade, more disciplined, more organised. Kind of like the 10th

Page 12389

1 Diversionary Unit. So you have General Krstic directing Blagojevic [sic]

2 to a special unit of Blagojevic to take part in the murder operation. So

3 clearly Krstic has that in mind.

4 Listen to the next answer from Beara. "They're not there, only

5 four of them still are. They took off, expletive, they're not there

6 anymore."

7 Blagojevic has clearly been trying to get those guys or trying to

8 get somebody down there from the Bratunac Brigade. And we know on the

9 morning of the 15th, Blagojevic is around, he's at his brigade, perhaps in

10 and out. Beara is looking for people. This -- again, Blagojevic is on

11 the tip of the tongue. Here's a reference: Go, get troops from him.

12 It's unimaginable in this context that Blagojevic is not aware of an

13 operation and it's his duty to supply troops. We don't see the colonel on

14 intercepts, but unfortunately, his commanders, for him, they're talking

15 about him, talking about his troops and suggesting what troops to take.

16 Beara clearly knows they are not available. Then as we go down we find

17 Krstic saying: Go to the MUP. Beara says: "No, they won't do anything.

18 I've talked to them and there's no other solution."

19 It sounds like the MUP is refusing, which means yes, you can

20 refuse. They are Ministry of the Interior. Mladic is their overall

21 commander in this operation, but here we have some people that are

22 refusing. I don't know who. There was Vasic, Borovcanin, Zaric, or

23 someone else, Mane Djuric. Somebody else is telling Beara to go away so

24 it can be done.

25 "Ljubo, you have to understand me. You guys have fucked me up so

Page 12390

1 much."

2 This is obviously a reference to the demands that the murder

3 operation has placed on the commanders in running their command

4 operations. This is an indication it is interfering with Krstic. We

5 can't tell from this his overall feelings about the operation, but it's

6 clearly an allowance to him. To his credit, it's at least an annoyance.

7 But from the rest of the conversation we see that he is doing what the

8 other commanders did. He's trying to follow Mladic's orders and get the

9 troops necessary to get the job done.

10 Now, again we see Beara going to the brigade -- or going to the

11 commander of the corps. He's requesting. He's not ordering, he's not

12 taking, he's not stealing. No indications of some superpower or some

13 secret security chain. If you look at the intercepts relating to Popovic,

14 Popovic, too, is getting back to his commander, especially on the 16th, to

15 report on things. Popovic needs fuel on the 16th for the Pilica

16 operation. You see Popovic has to go through the Drina Corps, intel,

17 logistics people. And then he has to go through the Zvornik logistics

18 people, and there's an exhibit of the fuel received that Popovic has to

19 get from the Zvornik Brigade people. It's happening as it should, the

20 brigade, the corps, the security officer. He can't just come in and take

21 fuel, he's got to go through the normal chain and he's speaking to his

22 commanders. He's speaking to Krstic. Momir Nikolic is speaking to his

23 commander, as he said. Drago Nikolic, when he gets the word from Popovic,

24 first thing he does, he calls his commander. He calls Dragan Obrenovic

25 and tells him about it. You don't see a secret chain of command.

Page 12391

1 About as secret we get is when Momir Nikolic talks to Beara, Beara

2 tells him to go to Zvornik. He goes to Zvornik, doesn't tell the people

3 at the office what he's doing. He goes up and he talks to Drago directly.

4 But when he goes back, he tells his commander. Drago has already told his

5 commander. According to Obrenovic, Pandurevic is in the loop. When

6 Pandurevic meets Obrenovic, he says those burials are supposed to be taken

7 care of by the civil protection people. All the security people are

8 talking to their commanders. You see it. They are incorporating them

9 into it. They have to. They have to talk to their commanders. They have

10 to get the authorisation to get the troops so the commanders know what to

11 do. Obrenovic in defending Zvornik, Blagojevic in defending Bratunac and

12 Zvornik and Zepa.

13 And Krstic sort of ends it in the concern that, oh, now I'm going

14 to get the blame. That's what they're worried about, fundamentally,

15 getting the blame for not following the commander's orders. Before this

16 war, before Krstic, Obrenovic, probably even Nikolic, these guys were

17 probably good neighbours. But what wars do to people and the demands on

18 them are horrific, and that's why we're here. I think when you look at

19 the conduct of the Bratunac Brigade, the writings and all the evidence of

20 Colonel Blagojevic, it's clear he was quietly making sure the job got done

21 by making his troops available, by authorising them, and all the processes

22 I've described and he's in on it from the beginning. Pandurevic finds out

23 about it in detail the moment he gets back as we see from what Obrenovic

24 said and the 15 July interim report where he specifically says: "The

25 command cannot take care of these problems any longer, as there is neither

Page 12392

1 the material nor the resources. If no one takes on this responsibility, I

2 will be forced to let them go."

3 From what we do know about Pandurevic, the man that stands up in

4 front of the camera and confronts Mladic about going to Potocari, he's

5 doing a similar thing here. He's saying, I'm going to let them go if I

6 don't have the resources. Again, I don't see any concern in here for the

7 Muslims; it's interrupting his operations. But he does get up and make a

8 statement. I don't see that from Colonel Blagojevic. I think he's

9 quietly getting the job done.

10 And as a final exhibit I'll take you to the 16 October meeting,

11 it's 403, that I know you've heard a lot about. Blagojevic is at the

12 meeting, the asanacija has been going on now for a while. Under Nikolic

13 it says: "We are currently engaged in tasks issued by the Republika

14 Srpska General Staff sanitation." Asanacija.

15 We know what that is. We know Colonel Blagojevic is being

16 informed. As you recall this is the final ultimate horror in this case

17 where literally, over a thousand bodies are dug up and moved through

18 Bratunac and distributed in many places all over the place. And here,

19 it's incontrovertible evidence that Colonel Blagojevic is told by his

20 security officer about this job and what's going on. So he would have

21 been told the beginning, middle, the ending, fully informed,

22 incontrovertible evidence.

23 Now, regarding sentencing, I will refer you to our brief.

24 Determining a sentence for a crime of this magnitude and responsibility,

25 brigade commander third to the top in many senses can only be the maximum

Page 12393

1 of life. But in my experience here and in the sentences that have been

2 handed out I thought that it is only fair that we take into account what

3 others have been sentenced to. General Krstic was sentenced finally to 35

4 years; I don't think that's enough. The Trial Chamber I thought was more

5 on the mark but I think 35 years is in the realm of some justice. And I

6 think it would be unfair for Colonel Blagojevic to face more than his

7 commander under the circumstances. So that's why we've asked in this

8 situation for 32 years.

9 For Major Jokic as an engineering officer, as a career engineering

10 officer, and as a person that was the duty officer for the 14th, he did

11 play an important role, as a staff officer would, and facilitated this

12 material. And we know from the specificity of this evidence he clearly

13 intended his actions. However, he is a staff officer in the engineering

14 department which is normally honest work, people trying to do their job.

15 But in the context of genocide it's not honest work; it's critical. But

16 taking in all the considerations for Major Jokic, I thought the Court

17 should consider 15 to 20 years as the appropriate sentence.

18 Now, you'll note that I have not spoken today of the victims. I

19 want to leave you with the thoughts from them, from the case, but I'm out

20 of words. I -- you've heard the words of the victims themselves and I

21 have sought other words that may help communicate to you our connection to

22 this case and the connection of the victims to history. And so I found

23 the very familiar words of a poet named John McCrae. I wanted to end with

24 a poem as opposed to the talk of genocide and all the other unfortunate

25 facts and circumstances in this case. So -- and I think this poem is

Page 12394

1 particularly relevant and appropriate for our case. You'll recognise

2 these words.

3 "In Flanders fields the poppies blow

4 Between the crosses, row on row,

5 That mark our place; and in the sky

6 The larks, still bravely singing, fly

7 Scarce heard amid the guns below.

8 "We are the Dead. Short days ago

9 We lived, felt dawn, saw sunset glow,

10 Loved, and were loved, and now we lie

11 In Flanders fields.

12 "Take up our quarrel with the foe:

13 To you from failing hands we throw

14 The torch; be yours to hold it high.

15 If ye break faith with us who die

16 We shall not sleep, though poppies grow

17 In Flanders fields."

18 It is with great honour, respect, and confidence that we pass this

19 case that we have cradled for eight years on to you for your final

20 judgement. Thank you very much.

21 JUDGE LIU: Thank you very much, Mr. McCloskey.

22 Well, Mr. Karnavas.

23 MR. KARNAVAS: Yes, Mr. President.

24 JUDGE LIU: I must say that the Bench is at your hands, that you

25 could begin your presentation in rebuttal, or we could do it tomorrow

Page 12395

1 morning, because I believe there are a lot of things in the statement made

2 by the Prosecution but you have to do analysis and study to maybe have it

3 incorporated in your statement tomorrow.

4 MR. KARNAVAS: Yes, Mr. President. I was prepared to go forward

5 normally. I'm used to this way of doing things immediately after the

6 Prosecution, but in light of what I've heard -- and I must say that we

7 have gone through their final brief and we have a mountain of documents

8 that I'm going to be going through, pointing out the fallacies of their

9 analysis which I think is necessary. So I think it would be best for me

10 to start tomorrow. I'm going to try to streamline it. I don't think I'm

11 going to be as short as the Prosecution; one never knows. But I do intend

12 to cover the law, as they have done very briefly, and I intend to tell

13 what I believe the evidence is, but I also intend to go through that final

14 document, final brief, to show that perhaps there are other alternative

15 and reasonable explanations when you look at all the facts in evidence

16 that's before you, that's before you. So, Your Honours, I would

17 appreciate it if we would adjourn for the day now and I can come back for

18 the day tomorrow fresh, you can be fresh. I think my tempo may be a

19 little bit faster, but I think we will get through it. Again, it's a

20 Herculean task. It's almost like asking Fidel Castro to give a four and a

21 half hour speech on the revolution. It's virtually impossible to

22 summarise 18 months of a case, but I will attempt to do that tomorrow.

23 JUDGE LIU: Well, just remember that you'll have four and a half

24 hours for your closing arguments tomorrow.

25 MR. KARNAVAS: Thank you, Mr. President.

Page 12396

1 JUDGE LIU: I see Mr. Blagojevic is asking for the floor.

2 THE ACCUSED BLAGOJEVIC: [Interpretation] Your Honour, I wish to

3 say the following for the record. I express a high degree of suspicion

4 and lack of confidence in terms of what the Defence is going to present,

5 the Defence that I do not recognise for a simple reason: I did not take

6 part in this and I did not give my consent. Thank you.

7 JUDGE LIU: Thank you very much. You may sit down, please.

8 THE ACCUSED BLAGOJEVIC: [Interpretation] Thank you.

9 JUDGE LIU: Well, the hearing for today is adjourned and we'll

10 resume as 9.00 tomorrow morning in the same courtroom.

11 --- Whereupon the hearing adjourned at 3.27 p.m.,

12 to be reconvened on Thursday, the 30th day of

13 September at 9.00 a.m.