Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12397

1 Thursday, 30 September 2004

2 [Defence 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.

10 Good morning, ladies and gentlemen.

11 Mr. Karnavas, are you ready for your cross argument -- for your

12 closing argument? I'm sorry.

13 MR. KARNAVAS: It's okay, Your Honour. It will be a closing and a

14 cross. Yes, I am, Your Honour.

15 JUDGE LIU: Yes, you may proceed.

16 MR. KARNAVAS: Thank you very much. Good morning, Mr. President.

17 Good morning Judge Argibay. Good morning, Judge Vassylenko. And as we

18 normally start in the United States, may it please the Court. Hopefully

19 it won't take all day.

20 In a rush to judgement, in an agonising effort to justify a

21 fait accompli the Prosecution conducted its investigation against Colonel

22 Blagojevic, in my opinion, as a mere ceremonial detour to a predetermined

23 end. The Prosecution, throughout its investigation, throughout its trial

24 and unsurprisingly throughout its final brief has intractably refused to

25 accept contradictory evidence, has relied at times on dubious, sometimes

Page 12398

1 discredited sources and has clung protectively to its own though obviously

2 erroneous conclusions while having reigned over an investigation with what

3 I would call a haughty sense of infallibility. All this as it repeatedly

4 and continually failed - and continues to fail - to assess accurately

5 crucial evidence on crucial points of this case.

6 Principally the Prosecution from the very start has been engaged

7 in what I would call a faith-based investigation in which it applied

8 investigative methods suffering from a severe case of group think. And by

9 that I mean the Prosecution failed to test its initial assumptions that

10 Colonel Blagojevic and the Bratunac Brigade must have been involved in the

11 atrocities as one might quite naturally expect because of where Bratunac

12 is located vis-a-vis Srebrenica. So that was a natural reaction.

13 Programmed in this fashion, the OTP investigators, the in-house

14 experts, if I may call them, the Prosecutors rejected any information, in

15 my opinion, or evidence that did not support their thesis, their

16 preconception, their initial assumption. In fact, whatever did

17 corroborate their initial assumption, they exuberantly though blindly

18 embraced with little regard to the creditability of the source --

19 JUDGE LIU: Well, Mr. Karnavas.

20 MR. KARNAVAS: Yes, Mr. President.

21 JUDGE LIU: We're going to hear your analysis and understandings

22 of the evidence we have already admitted into the evidence.

23 MR. KARNAVAS: I totally agree, Your Honour.

24 JUDGE LIU: And we are not doing an investigation on the behaviour

25 of the other party.

Page 12399

1 MR. KARNAVAS: Your Honour --

2 JUDGE LIU: I hope you could concentrate on the evidence that we

3 have already admitted rather than any attacks to your counterpart.

4 MR. KARNAVAS: Your Honour, I can assure you that this is rather

5 mild and watered down compared to what I would normally do in front of a

6 jury,, but yesterday the Prosecution got up and expressed their views,

7 their beliefs, what they thought. And in order for you, I believe, to

8 dissect and understand their mental process, I need to at least establish

9 what I believe is the theme and theory of our case, and our theory is that

10 from the get-go, from day one, they indicted without investigating, and

11 they indicted because of where the Bratunac Brigade was located and what

12 they thought and what they continue to think, and what Mr. McCloskey

13 said yesterday, that Colonel Blagojevic is the number three man. And I

14 kind of found it rather surprising.

15 JUDGE LIU: Well --

16 MR. KARNAVAS: I'm getting into that, Your Honour. So this is a

17 little intro, if you may.

18 JUDGE LIU: Let's come to your theory of the case as soon as

19 possible.

20 MR. KARNAVAS: Very well, Your Honour. And I'm going to tie all

21 of this in, by the way, so it's not out there in the wind. As I said,

22 I've watered it down as much as I can.

23 It should come as no surprise that the Prosecution to have

24 questioned or even doubted their initial assumption would have been

25 nothing short of a heresy, which of course explains why the Prosecution,

Page 12400

1 as I've indicated just now, in my opinion with result in mind at the

2 outset indicted Colonel Blagojevic and only then conducted its

3 investigation in order to shore up its initial beliefs, which is why I

4 call it a faith-based investigation.

5 Now, in your final brief we've laid out our theory of the case,

6 although as you well know, Your Honours, we don't have to prove anything,

7 it's not our burden. And over the next few sessions we will talk about

8 the facts and what we believe them to be. Our theory in this case and

9 what the evidence shows, Colonel Blagojevic was not involved in a joint

10 criminal enterprise, was not involved in issuing any orders for any crimes

11 to have been committed, did not turn a blind eye when he knew that his men

12 were out there doing certain things, that the Bratunac Brigade was not out

13 there committing crimes as the Prosecution would have us believe. We will

14 try to bring in the other aspect, the one what is missing, the one that

15 conveniently is tucked away or looked aside -- or not even considered.

16 And of course we will be talking about the Prosecution's favoured

17 truthful, cooperating witness, Momir Nikolic, who -- of course he is a

18 member of the Bratunac Brigade and by virtue of his position we have to

19 deal with, keeping in mind, of course, as I've indicated, that we have to

20 examine him carefully and the Prosecutor said we need to take him with a

21 grain of salt. I say we take him with a ton of salt. Because that man,

22 as we saw, was all too willing to manufacture evidence - and I'm going to

23 demonstrate how he did it - in order to sing the Prosecution's tune,

24 because he knew what the tune was as it is laid out in the indictment, and

25 he had all the evidence. So he had the music sheet. So all he had to do

Page 12401

1 was tell what the Prosecution wanted to hear. And the Prosecution did not

2 bother to check those facts, because to have checked them and perhaps to

3 have found that those facts were anything other than what Mr. Nikolic was

4 saying might have indicated that perhaps Mr. Nikolic was not quite as

5 honest and Mr. Blagojevic was not quite as guilty or guilty at all.

6 So -- now, the next section that I want to cover before I go into

7 the facts -- and I'm going to apologise in advance for this. It's a

8 little unusual, it's normally not my style. But I want to go into the law

9 a little bit. In fact, I'm going to go into it a little bit longer than I

10 want to with respect to complicity in genocide. I think it is necessary

11 because I think this Tribunal is at a watershed. Because we're -- as I've

12 indicated, and it's my firm belief, and it could be that I'm totally wrong

13 I believe that aiding and abetting in genocide was not provided for in the

14 statute but it is the law. It is the law. We must apply the law; I

15 understand that. Now we've got this complicity in genocide, and we have

16 to figure out where does it fit in and where is the mens rea. So I'm

17 probably going to take the next 20 minutes in going over it. And I wanted

18 to -- I'm a little more prepared than I was last time. And I want to

19 factor in some of Mr. Shin's arguments, especially as it relates to

20 Brdjanin. And before I begin, with respect to Brdjanin, let me say one

21 thing, and I was a little troubled, because Brdjanin, as I read it, is

22 pure dicta. Pure, unadulterated dicta. Why? Because it comes out and

23 says there's no genocide. So once you find -- once you've established

24 that, end of analysis. There's no need for you to go into is there

25 complicity, can you have aiding and abetting in complicity. So it's pure

Page 12402

1 dicta. Why that Trial Chamber decided to go into those matters, I don't

2 know. Maybe it's because they want to be on the forefront, trailblazing,

3 to see where we can stretch and broaden the horizon with respect to

4 genocide and complicity in genocide, but nonetheless it's dicta. I raise

5 this, and I'm kind of harping on it a little bit because in my

6 jurisdiction if I was to raise dicta and not call it dicta, Judges would

7 sanction me --

8 MR. McCLOSKEY: Your Honour --


10 MR. McCLOSKEY: Objection to slandering of another Trial Chamber

11 for no reason.

12 MR. KARNAVAS: Nobody's slandering anybody.

13 MR. McCLOSKEY: That's exactly what's going on here. And the

14 Prosecution is prepared to listen to this against us today, but another

15 Trial Chamber, you know, that's just going too far.

16 JUDGE LIU: Mr. Karnavas, I think you have the right to air your

17 views if you have different views with the decisions of another Trial

18 Chamber, but you have to use the proper language and lay out your reasons

19 and grounds. Let's concentrate on this part.

20 MR. KARNAVAS: I agree, Your Honour. But if I may remind the

21 Court, the objection came as I was saying that it was dicta. I don't

22 believe that that's slandering.

23 JUDGE LIU: Let's move on.

24 MR. KARNAVAS: Very well, Your Honour. And I hope that the

25 Prosecutor will restrain himself.

Page 12403

1 All right. Now, first we have the Krstic appeal decision, which

2 as I've indicated I believe that they've established a crime of aiding and

3 abetting in genocide. Then Brdjanin comes along and in my opinion goes a

4 little further than the Krstic appeal judgement. And it would

5 appear, if you look at what they're saying, they're trying to create

6 another crime or a new crime which would be aiding and abetting in

7 complicity in genocide. Now, I want to focus on that and I'm going to be

8 talking about that a little bit because if I listen to Mr. Shin correctly,

9 I was under the impression yesterday as well as when I read his brief that

10 we can have -- we can charge somebody with complicity in genocide and then

11 there would be an A and a B. A where there's complicity with intent, and

12 B where there's only knowledge. Maybe I have it wrong, but that's how I

13 read it. Maybe they're saying there is a lesser included in complicity,

14 although they don't say that. It might be implicit, I don't know. But

15 that's what they're saying, and it's Brdjanin that they're relying on,

16 hence why I'm going into this.

17 Now, in their attempt to create this new crime, I believe, of

18 aiding and abetting in complicity in genocide in Brdjanin, they state in

19 paragraph 989 in dicta that -- they've already realised that there's no

20 genocide. So we know this is dicta.

21 At the outset I want to say that I believe the Krstic appeal

22 judgement never really went into the issue of complicity in genocide to

23 see whether -- what mens rea exists for that. It never really touched on

24 it. They went around it a little bit. And perhaps because -- keep in

25 mind that once they've realised that there was this aiding and abetting in

Page 12404

1 genocide, there was no need for them to go to the next count, count 2,

2 which would have been complicity. So one could say that that part of the

3 Krstic appeals judgement is dicta. I'm not going that far; I don't

4 believe it is. But I don't think they completed their analysis because

5 they were more concerned in trying to figure out what the mens rea was for

6 aiding and abetting in genocide, and I think there's pretty good language

7 to establish that they believe that complicity in genocide is separate.

8 Now, how does the Appeals Chamber come up with aiding and

9 abetting? What was their reasoning? Well, as we know aiding and abetting

10 is a mode of liability found in 7(1) which expressly applies to all crimes

11 found in the statute. Because of the statute they indicated it must be

12 read with the utmost respect of the language of the legislators. And the

13 Appeals Chamber found that this was not an inadvertent overlap, so they

14 looked at our statute. They cited the Stakic -- and I'm going to be

15 discussing Stakic quite a bit. They cited the Stakic judgement which

16 states that: "Complicity may encompass conduct broader than that of

17 aiding and abetting."

18 I'm going to stop right here and focus a little bit on one word

19 and that is "conduct." So they're not talking about a mental element; it

20 appears that they're talking about an actus reus, conduct. Then in Krstic

21 they looked at four jurisdictions, the UK, France, Germany, and

22 Switzerland that do not require a share intent for aiding and abetting for

23 specific intent crimes but just knowledge. They have concluded that this

24 was customary international law. Of course they didn't look at the other

25 hundred or so jurisdictions. But it's interesting because of the one

Page 12405

1 country they cite, UK, and I'm going to get to that.

2 Now, I'm a little puzzled but the Appeals Chamber examined our

3 statute and the legislators' intent, and there they said that in

4 Article 4(2) spells out that the special intent required for all crimes

5 enumerated in Article 4. Now, the first rule of statutory interpretation

6 is to take the normal meaning of the statute on its face. So the Appeals

7 Chamber actually states that Article 4 is: "Most naturally read to

8 suggest that the Article 4(2) requirement that a perpetrator of genocide

9 possesses the requisite intent to destroy. A protected group applies to

10 all the prohibited acts enumerated in Article 4(3), including complicity

11 in genocide."

12 So it would appear, would it not - at least it does to me - that

13 the Appeals Chamber acknowledges that the most natural reading of

14 Article 4, that special intent is required for complicity in genocide and

15 that there is no mention of aiding and abetting in Article 4.

16 But let's go on. Let's look at the intent of the drafters of the

17 statute. Since Article 4 was taken verbatim from the genocide convention,

18 I believe we must look to the drafters of that convention. Now,

19 surprisingly the Appeals Chamber in Krstic cited the travaux

20 preparatoires - I hope my French is good enough to understand - of the

21 genocide convention and actually stated, and I quote: "That the drafters

22 of the genocide convention intended the charge of complicity in genocide

23 to require a showing of genocidal intent."

24 That's what comes from the convention. And it's interesting,

25 because if we look at that, then we don't have to really go on any further

Page 12406

1 with our analysis, but let's go on anyway. Because in the Krstic Appeals

2 Chamber judgement it went on to describe the Sixth Committee of the

3 General Assembly where the UK delegate -- remember we talked about the UK,

4 the one jurisdiction that they looked and they said that you only need

5 knowledge. The UK delegate proposed adding the word "deliberate" before

6 complicity, explaining that it was important to specify that complicity

7 must be deliberate because there exists some systems where complicity

8 required intent and others, such as in the UK, where it did not. Separate

9 delegates representing Luxembourg, Egypt, the Soviet Union and, yes,

10 Yugoslavia. They said that it was unnecessary because there had never

11 been any doubt that complicity in genocide must be intentional. So the UK

12 withdrew its amendment since it was understood that to be punishable,

13 complicity in genocide must be deliberate. And of course I looked it up

14 in Black's. No doubt in my mind that deliberate means intent. But

15 there's a reason why I point to Black's and we'll get to that.

16 Let's pause here with our analysis. Would you not agree that the

17 statutory interpretation and the legislative intent would lead you to

18 conclude that special intent is required for complicity in genocide?

19 In any event, after making this pronouncement the Krstic Appeals

20 Chamber then declined to tell us what the mens rea is for complicity in

21 genocide where, and I quote: "Strikes broader than the prohibition of

22 aiding and abetting." And I think this is an obvious sign that this

23 judgement does not concern complicity. That's my interpretation. And of

24 course when we get into Stakic, I think that might give us some guidance

25 because I think - and I don't want to get ahead of my argument - but the

Page 12407

1 real problem that they're having - I believe, and I'm not a legal scholar,

2 I'm just a lawyer. Once they concluded that you have this aiding and

3 abetting in genocide, the aiding and abetting conduct - the actus reus -

4 and complicity are virtually the same, but you have two separate crimes.

5 And what distinguishes them is the mens rea, the intent. Knowledge,

6 special intent. Aiding and abetting in genocide, complicity in genocide.

7 But I'm getting ahead of the story now.

8 So let's look at the definition of aiding and abetting genocide.

9 And I turn to the Stakic Trial Chamber, and it states that aiding and

10 abetting in genocide is, in quotes: "All acts of assistance or

11 encouragement that have substantially contributed to or have had a

12 substantial effect on the completion of the crime of genocide."

13 I notice that there's nothing in the definition that refers to the

14 mens rea. Could it be that the Stakic Trial Chamber was simply opining on

15 that complicity of aiding and abetting, complicity in genocide were the

16 same, and it was not saying anything about the mens rea in complicity. I

17 don't know. I wasn't there. I wish I had been a fly on the wall to see

18 the discussion. But I'm reading the tea leaves and that's what it's

19 telling me. Because they go on into the next paragraph and they

20 say: "For the purpose in this case" - in the Stakic case - "the Trial

21 Chamber deems it unnecessary to expand on the actus reus and the mens rea

22 for complicity in genocide."

23 And, again, I believe they did that because to have done anything

24 other than that would have been dicta. Because in that case they found

25 there wasn't any genocide, so they didn't go any further in their

Page 12408

1 analysis.

2 So where am I going with all this. The Krstic Appeals Chamber, it

3 would appear, saw that sentence in the Stakic Trial Chamber decision and

4 then used it to advance its reasoning in finding aiding and abetting

5 genocide while not specifically opining on the mens rea for complicity in

6 genocide. But now we're left with this appeals judgement from Krstic, so

7 we need to look at that a little closer. And we see that the discussion

8 of complicity seems, as I said earlier, almost incidental, subsidiary and

9 possibly dicta, but I'm not quite sure. I've read it a few times. It's a

10 little bit difficult, and I gather because there must have been a struggle

11 to find the right balance, but I've never been a Judge, so I don't know

12 what goes on and how they go about in making these decisions.

13 But if you look at -- and I say this because first the conviction

14 of General Krstic of aiding and abetting; therefore they didn't need to go

15 into count 2, as I indicated, which would have been complicity.

16 But the Krstic appeal states in paragraph 138: "Krstic's

17 responsibility is accurately characterised as aiding and abetting genocide

18 under Article 7(1) of the statute, not complicity as under

19 Article 4(3)(e)." The Appeals Chamber is clearly keeping aiding and

20 abetting genocide and complicity as two separate crimes. That's my

21 interpretation of that. And that's where I think Brdjanin goes wrong.

22 They say even though complicity can consist of aiding and

23 abetting, what sets them apart is the level of intent. That's my opinion.

24 What sets them apart is the level of intent.

25 If you look at paragraph 142 of the appeals judgement, you see a

Page 12409

1 discussion of the Sixth Committee of the General Assembly where it was

2 unequivocally stated that complicity should require special intent. Then

3 if you should look at the last sentence it says: "The text of the

4 Tribunal statute and the genocide convention combined with the evidence in

5 the conventions travaux preparatoires provide additional support to the

6 conclusion that the drafters of the statute opted for applying the notion

7 of aiding and abetting to the prohibition of genocide under Article 4,"

8 not complicity in genocide. They just say "genocide." And I think that's

9 fairly relevant information, okay.

10 So I think the whole discussion in Krstic was to incorporate

11 aiding and abetting, which only requires knowledge into Article 4, under

12 genocide, because it overlaps 7(1) in Article 4. Now, in doing that the

13 Appeals Chamber realised that complicity and aiding and abetting, as I've

14 indicated, have essentially the same actus reus, and this would no doubt

15 create confusion to its proper charge. I mean, imagine if -- if I

16 listened correctly to Mr. Shin yesterday, and I thought I did, it would

17 seem that sometimes you could charge somebody, as I indicated, with

18 complicity but you would mean intent but sometimes knowledge. And with

19 charging somebody, there needs to be specificity; they need to know. So

20 either inside complicity you can have A and B, or you have it as a lesser

21 included. Then you must have as a lesser included aiding and abetting to

22 incitement, to conspiracy, and what's a aider and abettor to a conspiracy?

23 He's a co-conspirator. Automatically. End of analysis. That's why I

24 think - if I have it right - this whole analysis of the Stakic and the

25 Krstic and the Brdjanin they're really -- at least Stakic and Krstic are

Page 12410

1 really talking about actus reus because there is this conundrum, how to

2 solve it.

3 Now, the Prosecution states that the Krstic Appeals Chamber holds

4 that aiding and abetting is a part of complicity and only requires

5 knowledge so that in this case under Count 1(B) Colonel Blagojevic should

6 only be convicted of complicity in genocide because he only had knowledge

7 to genocidal -- of the genocidal intent of others, if I'm stating their

8 case correctly, and I believe I am.

9 However, if you look at Judge Shahabuddeen's dissent he starts by

10 agreeing with the majority in the Krstic with his brethren on Appeals

11 Chamber that there is a crime of aiding and abetting the commission of

12 genocide under customary international law. Now it's worth noting that

13 Judge Shahabuddeen, who is meticulous in the way he writes. He

14 says: "That the majority held that the crime is aiding and abetting the

15 commission of genocide." "Aiding and Abetting the commission of

16 genocide." Nothing about the commission of complicity in genocide. So I

17 would think that surely we don't want to suggest that Judge Shahabuddeen

18 had the majority's opinion wrong. So I think if you look at Judge

19 Shahabuddeen's statement combined with the supporting material cited in

20 Krstic, it clearly shows that aiding and abetting is part of genocide and

21 not complicity in genocide.

22 I know I'm a little long-winded, Your Honours, but I just need a

23 little bit longer. I just want to make sure I nail this one down, and I

24 think it's important, and I hope I'm being clear enough.

25 Now, let's return to the Prosecution. They state that the

Page 12411

1 Brdjanin Trial Chamber correctly followed the Krstic Appeals Chamber's

2 holding that complicity in genocide under Article 4(3)(e) can consist of

3 aiding and abetting genocide. Again, as I've stated earlier, the

4 Prosecution failed to mention that this conclusion in Brdjanin was dicta,

5 but nonetheless I have to mention it again. But for the sake of argument

6 let's see how the Trial Chamber in Brdjanin reaches this conclusion. They

7 begin their analysis of Article 4 by recognising that it was taken

8 verbatim from the convention. All right, fair enough. However, it then

9 says that: "Even though Article 4 does not contain command responsibility

10 as a mode of liability, there are a play of factors that explain for this

11 oversight." But then they don't tell us what those factors are. But

12 based on that and the fact that Article 7(3) expressly applies for the

13 crimes of the statute, the Trial Chamber concluded, without citing any

14 authority, that command responsibility applies to Article 4 and that the

15 commander need only have knowledge, not special intent. This was dealt

16 with in Stakic.

17 The Appeals Chamber cites this Rwandan case - I don't want to

18 butcher the name, but it's C-y-a-n-g-u-g-u - which found a commander

19 guilty of genocide under command responsibility for one incident. And

20 then the Brdjanin Trial Chamber indicated that it disagreed with the

21 Stakic Trial Chamber. And in my opinion, by diluting the mens rea for

22 command responsibility, they went ahead and diluted the mens rea for

23 complicity in genocide. The Brdjanin Trial Chamber began its analysis of

24 complicity by stating that: "Complicity and accomplice liability have the

25 same meaning." Then they turn to Black's Law Dictionary for that

Page 12412

1 definition which is why I pointed it out as well. Because I think if

2 Black's Law is good enough for that decision, Black's Law should be good

3 enough to guide us as to what deliberate means. And deliberate means

4 intentional, premeditated, fully considered. That's the definition in

5 Black's.

6 Now here's what's interesting in the Brdjanin Trial Chamber. They

7 noted that the actus reus of complicity in genocide can consist of aiding

8 and abetting. Well, as I said, that's axiomatic given that it's the same

9 actus reus. Because it's not every conduct that amounts to complicity

10 already amount to aiding and abetting. Of course. What separates them,

11 as I said, is the level of intent. And Brdjanin cites Stakic for this

12 conclusion and then qualifies Stakic by saying that there are -- "that

13 there may be" - and I quote: "That there may be other acts which are not

14 strictly aiding and abetting but which could amount to complicity."

15 Here's where we're getting into some problems, because again we're

16 talking about conduct, not mens rea. They then conclude that

17 the: "Mens rea of complicity in genocide where it consists of aiding and

18 abetting genocide does not require special intent." Let me read that

19 again. "The mens rea of complicity in genocide where it consists of

20 aiding and abetting genocide does not require special intent."

21 But when does it consist of aiding and abetting? Well, let me go

22 to -- let me see if I can figure this one out. Krstic says that there's a

23 crime of aiding and abetting genocide. Brdjanin, in dicta, says: "Where

24 it consists of aiding and abetting genocide does not require special

25 intent." And we are in this case with a charge of complicity in genocide,

Page 12413

1 so we have to figure out what is the proper actus reus and mens rea. And

2 I don't think Brdjanin helps us. Not at all. Because in a footnote they

3 proclaim that complicity and genocide are not, and I underscore, are not

4 two distinct crimes, but rather they are different forms of a

5 participation in the same crime."

6 So here we see Brdjanin coming for the first time and saying that

7 now complicity in genocide is part and parcel of genocide. It's a lesser

8 included, at least that's my reading of it from that footnote. But if we

9 seek some -- maybe if we seek refuge in Stakic, they may help us out, and

10 I believe it will.

11 Now, Stakic has this great analysis of Article 4. And I don't say

12 this because we have two distinguished members of the Stakic Trial Chamber

13 before us. First the Stakic Trial Chamber pointed out that Article 4 was

14 taken verbatim from the statute. It then said that it was following the

15 principle of non-retroactivity of substantive criminal law, which means

16 the accused has the right to know what he is charged with. Of course.

17 Given the principle of nullum crimen sine lege, the Stakic Trial Chamber

18 looked at four sources when interpreting the crime of genocide. The

19 convention, the object and purpose of the convention reflected in the

20 travaux preparatoires, ICTY, ICTR, international court jurisprudence,

21 international publications.

22 Next, the Trial Chamber in Stakic adopted the description of

23 genocide as the crime of crimes, which it is, it was meant to be, it has

24 to be. It's a stigma. And they cited a -- the Kambanda case from ICTR.

25 The Trial Chamber noted quite correctly, and I'm going to quote

Page 12414

1 this: "Interpreting Article 4 restrictively and with caution will always

2 be guided by the unique nature of the crime of genocide." By the unique

3 nature of the crime of genocide. And those are the operative terms that

4 missing both, by the way, in the Krstic and also in Brdjanin. But I think

5 this is the guiding light, the compass that set the Stakic sails on the

6 right course. Because now the Stakic trial says that genocide is a

7 unique -- is so unique that it has the special intent, and then it goes

8 on to say that the Prosecution when they submitted -- that the third

9 category of the JCE did not require special intent, that was dismissed.

10 And here's what the Trial Chamber had to say: "The application of a mode

11 of liability cannot replace a core element of a crime."

12 They want to keep things distinct. It goes on: "The Prosecution

13 confuses modes of liability in crimes themselves." This is what the Trial

14 Chamber said, so I'm not trying to disparage anybody. "Conflating the

15 third variant of joint criminal enterprise in the crime of genocide will

16 result in the dolus specialis being so watered down that it is

17 extinguished."

18 That's poetry as far as I'm concerned. Now, isn't that what the

19 Prosecution is actually suggesting in this case? And if you look at the

20 arguments that they made when they wanted to amend the indictment for the

21 fourth or the fifth time, whatever it was, the Prosecution, they already

22 had charged Colonel Blagojevic with genocide and in the alternative with

23 complicity. They dropped genocide thinking that we'll go with complicity,

24 still with a special intent. Krstic then comes out, as I have indicated,

25 takes the wind out of their sails because now they see the writing on the

Page 12415

1 wall. They try to go back to genocide but under a lesser included,

2 according to Krstic, of aiding and abetting. That motion is denied in the

3 interest of justice, as I recall those were the terms. So now they're

4 saying, well, you know, actually in complicity in genocide you can have

5 two types: One with intent, one with knowledge. And we want to go with

6 knowledge right now.

7 So that's their current position. Of course if that was their

8 current position -- if their current position is correct, one has to

9 wonder: Why put me through the meat grinder in having to file a response

10 to their motion? Why waste our time over here? Why go through it if it's

11 already in there? And I don't say this to be -- to demean anybody, but

12 it's like a moving target for the Defence. What do we have to defend

13 today? And that's what it feels like being on the receiving end.

14 So let me move on, and I'll try to streamline it as much as I can.

15 Stakic tells us that there's an overlap between 7(1) and 4(3)(e).

16 Article 7(1) and Article 4(3)(e). It then adopted a finding from the

17 Semanza Trial Chamber which said that: "There's no material distinction

18 between complicity in genocide and the broad definition accorded to aiding

19 and abetting," but we were not told what this broad definition is in

20 Stakic. But it was correct, in my opinion, Stakic was correct in opining

21 that the actus reus and the mens rea of complicity -- of not opining on

22 the actus and mens rea because as I indicated that would have been dicta.

23 So where are we? Well, thanks to Krstic we have this lesser

24 included crime of genocide -- of aiding and abetting in genocide. But

25 Colonel Blagojevic is not charged with genocide; he's charged with

Page 12416

1 complicity in genocide which requires, in my opinion, and on the readings

2 that I've indicated, the special intent. Now the Prosecution is asking

3 you, in my opinion, to find a new crime of aiding and abetting in

4 complicity in genocide. And we are left with this prevailing statement of

5 complicity can consist of aiding and abetting. Complicity can consist of

6 aiding and abetting. And this statement is found in Stakic and Krstic and

7 Brdjanin.

8 So what does it mean? Brdjanin and the Prosecution concluded that

9 it means that aiding and abetting is a lesser included crime of complicity

10 and only requires knowledge, that you can be charged with complicity in

11 genocide and be convicted without special intent. I think if I understand

12 their positions. But if you look at the statement, it says nothing about

13 the mens rea element. I go back to mens rea because I think that's what

14 we have to focus on.

15 Now, let's look at the actual definition of aiding and abetting

16 genocide. Krstic cites Stakic which defines it as all acts of assistance

17 or encouragement that have substantially contributed to or have had a

18 substantial effect on the completion of the crime of genocide. This is

19 adopted by the Krstic Appeals Chamber and it must be followed, but let's

20 examine it. First, aiding and abetting genocide is not part of complicity

21 because the definition says: "Substantial effect to the crime of

22 genocide." That's what they're saying: "Substantial effect to the crime

23 of genocide," not substantial effect to the crime of complicity in

24 genocide.

25 Next. There's nothing in the definition describing the mens rea

Page 12417

1 element, just the actus reus. And does not the actus reus sound the same

2 as complicity in genocide? I think they do. And as I indicated what

3 makes the difference is the intent. So that's how you get to aiding and

4 abetting in complicity versus -- aiding and abetting in genocide versus

5 complicity in genocide because they share the same actus reus, and that's

6 why we need to have this distinction, plus if you look at the historical

7 background.

8 So in my opinion I would ask respectfully, and I apologise for

9 taking so long, but I thought I needed to go through this explanation. I

10 hope it has been informative, but I would ask you to essentially reject

11 the Prosecution's argument with respect to complicity in genocide. I

12 don't think in reading the indictment that they ever intended to charge

13 with mere knowledge because they could have done that from the get go.

14 Nothing stopped them, nothing prevented them.

15 I don't think that we can look at the Brdjanin dicta at this point

16 in time. We certainly don't want to be acting retroactively. And I think

17 the Krstic judgement does not say that all you need is knowledge for

18 complicity in genocide. We laid out our argument in our brief, and we

19 think that it would be consistent with the Krstic appeal judgement if the

20 Trial Chamber were to come out and say that for complicity in genocide,

21 all the reasons that I've stated and perhaps a lot more than you can come

22 up with, that you need the special intent, because that's what the

23 drafters intended, and it's quite clear. And you see the UK, which is

24 cited in the Appeals Chamber, the UK itself wanted to put the

25 word "deliberate" in there, because of its own jurisdiction, its own laws,

Page 12418

1 knowing that without that there may be some confusion.

2 So I think it would be wholly consistent for you to go ahead and

3 reject the Prosecution's argument and hold them to that standard, that for

4 complicity in genocide it has to be the special intent. And again I

5 apologise for taking all this time. I suspect there aren't any questions

6 on this part, so I'll move on. Again, my apologies. That's probably more

7 than Mr. Shin wanted to hear on complicity in genocide.

8 Now I want to talk a little bit about probably my favorite

9 doctrine, so-called doctrine, that we have in this Tribunal, and that's

10 the doctrine of joint criminal enterprise. I call it the so-called

11 doctrine because it appeared out of nowhere. We had common purpose during

12 Nuremberg and during Tokyo. That didn't work very well. I think we all

13 know that, we all realise it. It certainly is not in the statute. I

14 looked for it; I couldn't find it. It came out of, as we all know, Tadic.

15 And in my opinion, and I don't mean to disparage the Tadic case, but

16 Tadic, I think, was sort of the midwife of a lot of law creating in this

17 Tribunal, perhaps because it was the first case, and there was a lot of

18 areas where there lacuna that needed to be filled. But it would seem to

19 me that Tadic was - how should I say - very energetic in setting up

20 different standards and laws. And from Tadic emerged this concept of

21 joint criminal enterprise which is a real conundrum, I think, to Defence

22 lawyers and to the courts. It certainly is not for the Prosecution

23 because they tend to love that. It's based on this conspiracy model.

24 Now, it's well settled that the JCE, and I'll refer to it as that,

25 the joint criminal enterprise, the JCE, albeit being judicially created,

Page 12419

1 that's my opinion but I think others agree with me, is part of the

2 Tribunal's jurisprudence so we have to follow it. Whether we like it or

3 not. Be that as it may, the Trial Chamber must not and should not

4 interpret JCE to be a mere membership in an organisation because this

5 would constitute most definitely a new crime not foreseen by

6 the statute and would amount to an obvious infringement of the principle

7 of nullum crimen sine lege.

8 Now I mention that. You may say, well, wait a minute, why are you

9 going -- where are you going with that? Well, you know, member of the

10 VRS, and I'm going to tie it in, and we're going to go through my analysis

11 but that's where I'm getting at. I'm not suggesting that that is the

12 Prosecution's position, but I am suggesting that we are dangerously

13 getting close there, not because of the Prosecution's intent but because

14 of the nature of the beast, and the beast is the JCE.

15 So, anyway, the Prosecution correctly set out the actus reus and

16 the mens rea of the JCE and the separate categories of JCE, and in this

17 case particularly we have 1 and 3. However, the Prosecution disagrees

18 with the -- with a requirement that the Brdjanin Trial Chamber found that

19 there must be an agreement between the accused and the physical

20 perpetrators of the crime; they didn't like that part. Then they say that

21 Brdjanin is distinguishable on the facts because the JCE in that case was

22 in a large area over a long period of time. And so when I heard it I

23 thought about it a little bit, and it would appear to me - and I don't

24 know whether I'm correct or not - but it would appear that the Prosecution

25 is suggesting that the JCE should be applied differently based on the

Page 12420

1 facts of a case. I don't think that's correct. I think the law should be

2 applied as is. Unless we're going to say we have different types of JCE,

3 but that wasn't what we were hearing because that we have these three

4 categories.

5 It is worth noting that the two factors that led the Brdjanin

6 Trial Chamber, and that might help us a little bit in this case. I assume

7 I'm going to get some rebuttal on it. But what motivated Brdjanin to

8 dismiss the JCE as a mode of liability is that they found that the accused

9 was physically remote from the physical perpetrators and he did not have

10 de facto authority over them. And when I talk about command

11 responsibility, in essence that's what we're talking about, de facto. We

12 can throw de jure out the window, in essence, because it really doesn't

13 make a difference. It's de facto. You can have de jure and de facto, or

14 just de facto, but de facto is what makes you responsible, in essence.

15 But I'm going to talk about that, and I'll be very brief on that as well.

16 They also indicated that they didn't like the Stakic definition of

17 co-perpetration. They thought that was wrong. Well, I'll tell you what

18 my opinion is with the JCE is that it creates a foggy and a rather

19 dangerous impression of collective guilt. That's what I think. Where

20 just because you are a member of an organisation or some members of that

21 organisation went on to commit crimes or have committed crimes, your mere

22 membership makes you liable. And -- or at least they look at your

23 membership and then with all the circumstantial evidence they are able to

24 say, you know, he must have known, he had to know, and somehow you're in

25 this web where you have nothing to do with the enterprise, and what gets

Page 12421

1 you into the web is your membership in the organisation. I think that's

2 why continental Judges don't like this because they don't -- in the legal

3 tradition, as I understand it, you have perpetrators and co-perpetrators,

4 and that's it, in essence. And that's what we should be dealing with, as

5 opposed to this theory that broadens the net and dangerously gets us close

6 to what was happening at the Nuremberg and Tokyo trials.

7 So in the example that I wanted to give you is that the

8 Prosecution, throughout its final brief, uses the long-term objectives of

9 the RS, the VRS to infer criminal or even, you know, the ethnic cleansing

10 liability. Yesterday we heard the six stated goals, 1992. Think about

11 it, and I'm going to talk about that. But it would appear, since that was

12 out there in the open and that Colonel Blagojevic was a member of the VRS,

13 there was a war going on, therefore we can look as far back as 1992 and

14 then draw some inference as to what a state of mind is in 1995. And

15 that's the danger. But what's even further, it would have been virtually

16 impossible to have been a Bosnian Serb in Bosnia at that time and not to

17 have known those stated goals. And if they were serving in the VRS, as

18 they were, as they had to, at age 16, it would mean that once you turned

19 16 you became a member of this joint criminal enterprise. And that's the

20 danger. I'm not saying that that's their argument -- that's their theory,

21 but I'm saying that's how dangerous it can be when you apply this JCE.

22 I do think that the Prosecution is misguided to even be suggesting

23 the 1992 stated goals. Why do I say that? I'm going to get ahead of my

24 argument, but I'm going to say it to just get it over with. If we're

25 going to do that, then shouldn't the Defence not be allowed to question

Page 12422

1 why you had these stated goals? What motivated the Serbs? It wasn't as

2 if in 1992 they woke up and said, okay, let's ethnically cleanse Bosnia.

3 It didn't happen. So you have to go back to the history. You have to go

4 into the psyche of the Serbian people in Bosnia, which would require me to

5 go into World War II, maybe the Ottoman Empire, stuff that is totally

6 irrelevant in this case, and I don't want to make it part of this case.

7 So as a Defence I'm in this straightjacket, and that

8 straightjacket, in a sense, it has gotten tighter and tighter, thanks to

9 you all, is called the indictment. Every time I try to get out of it, no,

10 you're going to stick to that indictment. That's what you're going to

11 defend. Once you had that 98 bis decision, that jacket got a little

12 tighter. And so I have to tell you when the decision came out I thought,

13 great. Then when I started putting on my case, I was wondering why are

14 the Judges so much in a rush? Why are they cutting me off? Well, it

15 wasn't that you were cutting me off. You were telling me - I hope - that

16 your case is smaller, it's shrunk, focus on the indictment. I hope I was

17 a good student and picked up and did what I was supposed to do.

18 What I'm trying to get at is when you get to this JCE and you

19 don't allow the Defence to go into it because it's irrelevant, but you

20 bring it in somehow because it's this fuzzy thing called crime base. And

21 I'll tell you, in 20 years I had never heard that word before. I had to

22 come to The Hague to hear it for the first time. It seems it's a moving

23 target too. It grows, it's hard to figure out what is and what isn't

24 crime base; I know there's a definition. But from a Defence standpoint,

25 maybe it's my training in front of juries because, you know, you never

Page 12423

1 know where the jury is going to go, so you try to cover all bases. So you

2 try to go off into the furthest stretch of their imagination, just in case

3 they wander off the reservation. But I think the JCE causes that problem,

4 and what we don't want to be is where others have been as a result of

5 that.

6 Now, where am I getting with all of this? Frankly I think that

7 there must be a limit to the third category of the JCE based on a better

8 way of interpreting co-perpetration pursuant to committing. Again, just

9 by serendipity, not by design, I have to go to Stakic. And so the Stakic

10 decision again gives us pretty clear guidance. They emphasise that: "JCE

11 is only one of several possible interpretations of the term committing

12 under 7(1) of the statute and that other definitions of co-perpetration

13 must equally be taken into account."

14 Fair enough. Furthermore, a more direct reference to committing

15 in its traditional sense should be given priority. Now, why are they

16 saying that? Because you have this JCE which is sort of, as I said,

17 created outside the statute. Okay, there's some linkage because of the

18 common purpose doctrine from Nuremberg and Tokyo. But basically the

19 Stakic Trial Chamber is saying a more direct reference to committing in

20 its traditional sense should be given priority. And they give the

21 definition. It's on 439, I was prepared to read it, but I think we're

22 losing time, so I don't want to take up too much more time.

23 But what I am -- and I'm not suggesting that JCE should not be

24 considered at all; that's not the purpose. But as I indicated, it's not

25 the only definition. I believe that the Trial Chamber should consider the

Page 12424

1 less confusing definition of committing that came out of the Stakic Trial

2 Chamber. This definition provides a better understanding to that term and

3 avoids the possible misleading impressions resulting from a wrongful

4 application of this so-called doctrine of joint criminal enterprise.

5 All right. And again, I apologise for having to do all this on

6 the law, but I think for context purposes and because I think we are on

7 the watershed of working with some of these concepts, fine-tuning them, I

8 think it's important.

9 And now I want to talk a little bit very briefly about the concept

10 of command responsibility.

11 JUDGE LIU: Well, Mr. Karnavas.


13 JUDGE LIU: I believe that the interpreters have a very difficult

14 time to follow you because first you delivered your argument in a very

15 fast speed. Secondly, it's a very complicated issue. And my suggestion

16 is that maybe we could have an early break.

17 MR. KARNAVAS: Absolutely, Your Honour.

18 JUDGE LIU: And after the break please keep your pace and we'll

19 carefully listen to every word of your argument.

20 MR. KARNAVAS: Very well. Sleep deprivation makes me a little

21 anxious, but yes.

22 JUDGE LIU: So we'll resume at 10.30.

23 --- Recess taken at 10.00 a.m.

24 --- On resuming at 10.32 a.m.

25 JUDGE LIU: Mr. Karnavas, please continue.

Page 12425

1 MR. KARNAVAS: Thank you, Mr. President, Your Honours. And my

2 deepest apologies to the translators. I'll try to go at a slower pace.

3 I want to talk a little bit about command responsibility. And

4 even though it's a sort of a well-known concept, recently we had a -- what

5 I would consider a marvelous decision on this concept, the Blaskic

6 decision. It sort of gives us a little bit more clarity on it. So I

7 thought I would cover it just so we have some context.

8 So as you know that under Article 7(3) command responsibility

9 exists and the Celibici trial judgement more or less set the standard with

10 the three-pronged test. The three-pronged test essentially is that, one,

11 there must be superior support subordinate relationship between the

12 superior and the perpetrators of the crime. So that's number one. Number

13 two, the accused knew or had reasons to know that the crime was about to

14 be or had been committed. And number three, the accused failed to take

15 the necessary and reasonable measures to prevent the crimes or punish the

16 perpetrators thereof. So those are the basic three-pronged tests.

17 So -- but I want to cover the Blaskic case a little bit in

18 conjunction with how it talks or discusses the Celibici decision. So

19 first we have to have this superior subordinate relationship, and there

20 cannot be, in this relationship, unless, unless - and I cannot underscore

21 this enough - there is an effective command and control over the

22 subordinate. See, before I mentioned de jure and de facto, that's what

23 that is all about. Effective command and control. Those are the

24 operative words.

25 Now, how do we know, how do we know, what is effective command and

Page 12426

1 control? Well, we have this non-exclusive list that has been provided

2 over the few years in the jurisprudence, and of course this concept came

3 out of World War II during the Nuremberg and Tokyo trials that was

4 covered. But here, you know, we have the superior -- de jure or de facto

5 position of authority. That's important. That's one of the factors. His

6 material ability to prevent or punish the commission of the crime. That's

7 another factor. Again, these are non-exclusive but that's a factor. The

8 actual influence he has over his subordinates. The actual influence he

9 has over his subordinates. So if you have someone who doesn't want to

10 stay on the porch and is roaming around on the prairie, say like Nikolic,

11 well, do you have actual influence over him? We'll talk about that.

12 But what Blaskic tells us is that it's a matter of evidence and

13 not law. In other words, you can't just have this list. You look at it

14 on a case-by-case basis. So each case you have to look at it for what it

15 is. And what does that mean? Not evidence -- not law but evidence.

16 Well, that these indicia, these indicators are indicia, not elements of

17 effective command and control. They are just indicia. That these indicia

18 must be evaluated on a case-by-case basis, and that these indicia are

19 limited only - are limited only - to showing that the superior had the

20 power to prevent or punish the commission of the alleged crime.

21 So the Trial Chamber must, in my opinion, look at the specific

22 facts of this case and this case alone to determine whether

23 Colonel Blagojevic

24 -- oh. Okay.

25 JUDGE LIU: Well, we have a problem with the LiveNote.

Page 12427

1 MR. KARNAVAS: I can rewind, Your Honour. If I know where to pick

2 up. I just have to push the button and I'll -- okay. Obviously they

3 missed the part about being off the prairie.

4 JUDGE LIU: No, no, it's not ready

5 MR. KARNAVAS: All right. Okay. Are we on? All right. I can do

6 it twice, Your Honours.

7 JUDGE LIU: You know where you are?

8 MR. KARNAVAS: Your Honour, I was talking about if we had

9 somebody, for instance, that left the porch and went off on the prairie.

10 I was making reference to Nikolic, but we'll get there.

11 But in any event just to make sure that the record is complete,

12 what I indicated earlier was that it was a matter of evidence and not law.

13 What that means is as follows: That these indicators that we spoke of are

14 merely indicia, not elements of effective command and control. They help

15 us to get there, to understand it, but they're not elements. That these

16 indicia must be evaluated on a case-by-case basis. That's very, very

17 critical. So you can't look and see what they did in another case, you

18 have to look at these facts. And perhaps if I may, you also have to look

19 at the individual involved. That's where I may have some discussion with

20 respect to what I heard yesterday because there was sort of a leap when

21 Mr. McCloskey was saying, well, you know, Drago Nikolic and Obrenovic,

22 they have this wonderful relationship. So it should follow that that's

23 what was between Colonel Blagojevic and Momir Nikolic. So we'll talk

24 about that. And that these indicia are limited only to showing, only to

25 showing, that the superior had the power to prevent or punish the

Page 12428

1 commission of the alleged crime. So this Trial Chamber must, in my

2 opinion, look at the specific facts in this case and in this case alone to

3 determine whether Colonel Blagojevic had effective command and control

4 over the alleged perpetrators.

5 Second, according to the Celibici Appeals Chamber, the Prosecutor

6 must prove beyond a reasonable doubt that the superior knew or had reasons

7 to know that his subordinates were about to commit or had committed a

8 crime beyond a reasonable doubt. And I'll share with you what my

9 definition is of beyond a reasonable doubt just in case I forget it. In

10 my jurisdiction, it is proof of such a convincing nature that you are

11 willing to rely and act upon it without hesitation in your important

12 affairs. And an important affair would be like getting married, for

13 instance. So you don't go into marriage thinking, well, maybe it's the

14 right person, maybe not, I don't know, maybe it will work. You're certain

15 by that point. Or if you're going to buy a house or maybe even a car.

16 And I mentioned that because at some point I might ask you whether you

17 would be willing to buy a used car from someone like Nikolic based on his

18 representations, because that's certainly not an important affair.

19 So anyway. Now, certainly there are two kinds of knowledge that

20 we all know that through the jurisprudence are recognised in trying to

21 establish this effective command and control. You have the actual

22 knowledge of the crimes which can be established through direct or

23 circumstantial evidence, and I'll talk more about circumstantial evidence,

24 and then you have constructive knowledge; that is, would have had reason

25 to know. That's what they mean by that.

Page 12429

1 Now, what does all of this mean? It means that the superior had

2 in his possession information, had in his possession information, that

3 would at least put him on notice of the present and real risk of such

4 offence. To put it another way: "The Prosecution must prove beyond a

5 reasonable doubt that the superior had either did actually know his

6 subordinates committed the crime or that he would have known, given the

7 information available to him."

8 I think I'm accurately stating the law.

9 Now, the Blaskic Appeals Chamber rejected criminal negligence as a

10 basis of liability; you know, that he should have known. That was the

11 test they used. They departed from Celibici. And in the Appeals Chamber,

12 as you well know, they came back. And so negligence is not the standard,

13 meaning that if a superior did not know of his subordinates' behaviour

14 because of his own negligence, that that is not enough to satisfy the

15 standard that he knew or had reasons to know. That's important. And I

16 believe it comes very close -- as a result of what happened, I believe, in

17 other cases during the Nuremberg or the Tokyo trial, the Yamashita case is

18 the one that comes to mind where basically if you really want to cut to

19 the chase after the war they -- the Supreme Court in the U.S. basically

20 did not apply the law, the standard, that it should have applied, and the

21 man was executed. But in that case, as you well know, he was cut off, he

22 wasn't able to be where his troops were. But the standard was so high

23 that they said basically it was almost as if it was strict liability. He

24 was liable because he was a commander and didn't take into account the

25 other factors. And since then I think the pendulum has swung back and now

Page 12430

1 it's right where it should be because you look at all these things.

2 So the Blaskic Appeals Chamber held that command responsibility is

3 not a form of strict liability; that's on paragraph 57. The fact that the

4 superior is in a commanding position does not in and of itself make him

5 liable for the crimes of his subordinates. And I'm not admitting or

6 conceding that any subordinates were committing crimes.

7 According to Celibici -- the Celibici Appeals Chamber the standard

8 is knew or would have known criminal negligence did not again satisfy this

9 standard.

10 Now, third, the Prosecution must prove beyond a reasonable doubt

11 that he failed to take the necessary and reasonable measures to prevent or

12 punish the crimes. When we talk about the punishment aspect, I'm going to

13 refer you back to Mr. Drinic who came -- he had been a Prosecution witness

14 on their list. They questioned him for two days. They didn't bring him

15 in; they brought in somebody else. But Mr. Drinic was able to tell us as

16 a military Prosecutor, and there was another witness as well, and they

17 were able to tell us what the conditions were at the time, because a

18 superior is not required to do the impossible. You notice in my trial

19 brief I indicated that during a period of time there was no witness

20 protection, you could not make a complaint anonymously. The protections

21 that are afforded to the witnesses that we have here do not exist. And of

22 course, the fact that we have these protections and the fact that we use

23 these protections could tell you or should tell you that even during that

24 period of time one would need those protections if he was in a position

25 where he needed to take measures. But again, it's not required to do the

Page 12431

1 impossible. That's not something that needs to be understood. And it

2 also goes to, for instance, when we talk about Nikolic and the separate

3 chain of command which was sort of, in my opinion, rather despairingly set

4 aside by the Prosecutor, much to my regret, but nonetheless we'll discuss

5 that.

6 So -- now, what constitutes necessary and reasonable measures as a

7 matter -- is a matter of evidence and not law. Again, you've got to look

8 at it from case-to-case basis. So I think that the Blaskic Appeals

9 Chamber decision gives us those -- that guidance.

10 All right. Well, I apologise again for having to go into the law,

11 but I always think it's kind of good to look at the law because I find it

12 as sort of the compass that will guide us through our factual journey.

13 But before we get to the factual journey, I want to discuss a

14 little bit about this concept of circumstantial evidence because I think

15 we have two sort of separate positions on it. Mr. McCloskey yesterday

16 said that he is very comfortable with circumstantial evidence. Well,

17 perhaps he should be. The Prosecutor. The Defence lawyer, I don't like

18 it, I don't trust it. I am not so willing to rely on it to the extent

19 that the Prosecution is willing to do so in this particular case, and I'll

20 tell you why. Because circumstantial evidence on its face may look very

21 good but it may turn out to be false. The problem with circumstantial

22 evidence is sometimes it looks so good that you don't take the necessary

23 steps to find out whether it's actually reliable. And I'm going to give a

24 little vignette at some point, but first I just want to share with you

25 what I believe is a current event today that would demonstrate beyond any

Page 12432

1 shadow of a doubt - to use Mr. McCloskey's words - that circumstantial

2 evidence can be misleading. Over a thousand young men from America have

3 died in Iraq based on circumstantial evidence that was used as a pretext

4 to go to war in Iraq.

5 Now, I want to stay out of politics, but what I'm trying to say is

6 here you had some very -- key people, credible people like Colin Powell,

7 standing up in front of the United Nations and saying, "We have the

8 evidence," and it was all circumstantial. And based on that they went to

9 war. And now we find out that, hey, we didn't have it.

10 Another example: In the Krstic case, the Prosecution with

11 Mr. Butler, and I'm going to putz upon him a little bit. I think he's not

12 going to fair too well today, in fact. But in any event he stood up in

13 front of the Krstic Trial Chamber and said, you know, if we look at that

14 intercept that says "up there," and we take Erdemovic's testimony which

15 says, "men from Bratunac" and we piece it together what, we come up with

16 is, up there, Bratunac Brigade intercept, Bratunac men, Bratunac Brigade,

17 enough. And they found beyond a reasonable doubt, beyond a reasonable

18 doubt, which is a pretty high standard, based on that. Now, was what

19 intentional? Of course not but it happened. And there lies the problem,

20 it happened.

21 Now, that's why I think we need to be very careful. And in this

22 Tribunal I tried to in my trial brief to set out some guidance. I know we

23 had some evidence, standards on reviewing evidence. I tried to be a

24 little more helpful, and I added a few of my own which I thought were

25 consistent with the law such as: How do you review the evidence of

Page 12433

1 somebody who's gotten a deal? I mean, it's kind of important. What are

2 some of the indicia that you can look at. But what we know from the

3 jurisprudence here is if you're going to piece together a fact based on

4 circumstantial evidence, various pieces of circumstantial evidence, you

5 have to first exclude all other reasonable and possible explanations. All

6 right. That gives me a little more comfort --

7 MR. McCLOSKEY: Objection, Your Honour.


9 MR. McCLOSKEY: That is just a flat-out misstatement of the law.

10 You do not have to exclude all other possible interpretations. This would

11 make proving a case absolutely impossible. It's a fundamental

12 misstatement of the law and it cannot stand.

13 JUDGE LIU: Well, Mr. McCloskey, you have to understand that these

14 are the understandings and interpretations of Mr. Karnavas to the law.

15 You may not agree with it, but this is their understanding.

16 MR. KARNAVAS: Your Honours, in my brief, in my trial brief, I set

17 the standard, I cited the law, and if I said "all," I apologise. I

18 withdraw it's not all. It's reasonable and plausible explanations. All

19 right.

20 Now, what do we mean by that? Can we think of an example that

21 might help us? Well, I have one example from this Court that we did. I

22 think it's important to use something live from this case. And first of

23 all, I want to say at the outset that I'm not attacking anybody; that's

24 number one. Number two, and it has to do with Mr. Butler in an exchange

25 with -- in a previous case with respect to Erdemovic where he misspoke.

Page 12434

1 You recall when I brought it out, I told him that I was very sure that he

2 was an honourable man and that was a mistake. So I put that out on the

3 table, right now. But I'm going to show you how I got there. And I'm

4 doing this because I want to show you - and perhaps it's not necessary -

5 but I want to show you why I think it's necessary to go through these

6 machinations in order to be fair, if nothing else.

7 As you may recall, during the Krstic trial there was an exchange

8 between Mr. Harmon, I believe, and Mr. Butler where they asked him about

9 Erdemovic and the men that arrived late. And Mr. Butler said Bratunac

10 Brigade. Of course Mr. Harmon knew that was not correct, Mr. Butler knew

11 that wasn't correct, but in the heat of battle, they got the adrenaline,

12 lack of sleep, who knows. Mr. Harmon does what we call looping. It's one

13 of my favourite techniques. You take that part of the question that you

14 really like and you want to emphasise it, and you make it part of your

15 next question, so you loop it. All right? Which means that he heard it,

16 used it, emphasised it, and Butler picked up on it and used it back.

17 Now, if we just look at that, we can draw some conclusions,

18 circumstantially. They knew about it. Then if I go into other knowledge,

19 other conduct, I might be able to show circumstantially, hey, beyond a

20 reasonable doubt they must have been involved in trying to somehow provide

21 false information.

22 However, as I pointed out, in his report he points out

23 specifically that Erdemovic never says they were from the Bratunac

24 Brigade, all right? So that means I have to take that piece of

25 information and factor it into my analysis. And I have to see whether,

Page 12435

1 with that piece of information, is there another reasonable and plausible

2 explanation, and the answer is of course, there is. He misspoke, and Mr.

3 Harmon probably wasn't paying much attention. That's the alternative,

4 plausible explanation.

5 Now you may ask me: Well, what do you think, Karnavas? Well, the

6 answer to that question would be: It doesn't make a difference what I

7 think because you have to look at the evidence. That's what we need to

8 do, look at the facts, not what we think, because yesterday we heard about

9 four hours of thinking, of postulating. They might have done this, or

10 maybe he did that, I don't know, I can't prove it. Not good enough. And

11 you cannot, cannot, and I underscore that, reach a conclusion based on

12 circumstantial evidence, unless you look at all other reasonable and

13 plausible explanations. And I think that is fair, that's necessary,

14 especially if you're the Prosecutor because you have the Prosecutorial

15 means.

16 What am I getting at? What I'm getting at is you cannot and you

17 should not look away or shy away from evidence, from witnesses that might

18 provide a different explanation. And what do we -- and I'm just going to

19 cover the overall picture of the Prosecution's case and then go into more

20 specifics. But what we see from the Prosecution is in their analysis and

21 which they want you to buy into is that they have this habit when they

22 don't like what they hear, that part of the person's testimony is not

23 reliable at all, and there's not a single Defence witness - I don't

24 think - that they like. At least whenever he says something kind,

25 something good, something positive, something exculpatory, something that

Page 12436

1 would lead you to a reasonable and alternative plausible explanation for

2 Mr. Blagojevic, they don't like that. That part, that witness is not

3 credible.

4 Now, if that same witness has something that can put him right

5 into the mix of things by hook or crook, by stretch, however, oh, we like

6 that part. Oh, yes. So it's almost like we have these witnesses that are

7 bipolar. Whenever they're going to say something positive about Colonel

8 Blagojevic, they're not credible. But if it's something that we be able

9 might to use circumstantially to say that he's in, then obviously they're

10 credible, take it to the bank, rely on it. That's their general theory.

11 What I'm suggesting here, before I go into more of the facts, is

12 that we be very, very careful before we draw these conclusions based on

13 circumstantial evidence. And we try to, we try to, point out alternative

14 plausible explanations in our brief. And I also have the caveat, just

15 because we happen to raise one, but you see it, go for it, sue sponte,

16 ex officio, however you call it. But I think that is only fair.

17 And I started my closing argument, and maybe it's a little bit

18 unusual for this Tribunal, maybe I'm too much of a trial lawyer in front

19 of a jury, but in essence what I was trying to show is that the importance

20 of being fair to the accused. That's what we want to do. We want to be

21 fair to the accused. We have to look at all the evidence, not some of it.

22 And what gets me going a little bit is, for instance, when they quote

23 something in their brief but they omit critical information that might be

24 relevant for you. They take it out of context. I think that's unfair. I

25 think that's denying you the ability to look at that other alternative

Page 12437

1 plausible explanation. And one that comes to mind, for instance, and we

2 may get to it. I have piles of documents as you can see. We won't be

3 able to get to all of them, but there's one, for instance, where they're

4 making a reference to that very special instruction that we talked about,

5 Mladic's instruction, 1994, regarding the separate chains of commands.

6 Now, we've had testimony from all sorts of people. We've gone over that

7 document, and we've had it translated and retranslated. And if you look

8 at their brief, and I can get my hands on it right now, but if we look at

9 their brief and I think it's on paragraph 394 to 399. But if you look at

10 it they quote the one section, they quote the one section out of context.

11 And that's what troubles me, and I mentioned this right now because this

12 is going to be my theme where I hammer and hammer and hammer away at this.

13 Because on 396, paragraph 396 they quote: "Members of the security and

14 intelligence organs must provide their immediate superiors with

15 information, assessment and observations regarding the security units or

16 institutions." Fair enough.

17 But what's missing? What's the part that's missing? "To the

18 extent and in the measure necessary," that's what precedes it. Now, if we

19 did this in front of a jury, I can assure you that they would just all

20 look at the same time. And my question is: Why? Why not quote it as is

21 and say, hey, even though it says this, qualify it. Not a problem. But

22 to omit that part, that critical part, in my book is somewhat misleading.

23 And also, as I have indicated, it doesn't allow you to focus on any other

24 alternative plausible explanations. There are lots more in their brief,

25 but in any event I just wanted to point that one out real quick. And

Page 12438

1 we'll talk a little bit about the separate chain of command, but that's

2 why we have to be extremely careful with circumstantial evidence.

3 Now, let me talk about -- let me get into the thick of things, and

4 I'm first going to talk a little bit in general about this history the way

5 they view it. I already talked about 1992 or 1993 with the stated goals

6 of the RS. As I indicated, it would be fair -- it would be unfair for

7 you, in my opinion, to look at that, especially since we were not

8 permitted nor should we have been permitted to go into what

9 Mr. Izetbegovic was doing, what his aspirations were, how he spent time in

10 prison because he wanted to create an Islamic state during the Tito years

11 and all of that. I don't think that was necessary.

12 But then let's move on further ahead. The Prosecution then

13 mentions directive 7. It was directive 4, they said yesterday they don't

14 know whether he read it or not, whether Mr. Blagojevic read it or not.

15 Then they moved on to directive 7 and directive 7.1. Then they point to

16 some sections, that if you read them in -- if you read them out and you

17 take them out of context, you are left with one particular conclusion.

18 But with respect to Srebrenica, I think you have to look at Krivaja 95,

19 you have to look at the entire document and not just the one section of

20 it, and what was the reasoning and what was the purpose and what did those

21 people at the time think was going on. This is a critical aspect of this

22 case. It's extremely difficult as a Defence to try to focus on the

23 target, because it keeps moving.

24 How do I mean? They say, based on what was happening historically

25 at the time, the Srebrenica enclave was militarised. They were -- in my

Page 12439

1 opinion, they were conducting terror activity, small-scale, but

2 nonetheless sufficient enough to tie down the troops over the there. At

3 the same time, you had the Muslim army getting re-armed from the outside.

4 They already numerically had -- were stronger than the VRS. It was only a

5 matter of time -- and of course we had the intelligence, and we heard from

6 the intelligence officer himself, Mr. Salapura, tell us there was

7 information, and we brought it here, we had this information, there's

8 documents, there's evidence to show that there was this information, and

9 even Mr. Butler himself indicated that as the war was going on at that

10 period of time, it was very clear that at some point the Muslim army was

11 going to attack, and it was going to be able to overpower the VRS. And he

12 indicated that the pre-emptive strike was not against the law, it was

13 okay.

14 So if we stop right there with their analysis, okay, it would seem

15 to me at least that there is no need to argue what happened prior to the

16 attack. What do I mean? By -- if we're talking about the May 25th

17 incident, the Prosecution wants you to think that somehow that day was

18 historic. And why was it historic? For two reasons, because Colonel

19 Blagojevic took over the reins, and two there was the incident. We talked

20 about the incident -- they talked about it yesterday and we heard some

21 testimony. There's no denying it, there's no minimising it. But you want

22 to put it into context.

23 We had the NIOD report. We didn't commission it, neither did the

24 Prosecution. What the NIOD report indicated was that there was a specific

25 reason why that attack took place on that particular day. And the reason

Page 12440

1 it took place was because they were responding to bombings by NATO on Pale

2 and other places. Now, I'm not saying that that was justification but

3 that was the reason, not somehow Colonel Blagojevic arrives in Bratunac

4 and all of a sudden here is his opening salvo to the folks of Srebrenica,

5 I've arrived, incoming. That's nonsense. Number one. Number two, look

6 at who issued the order. The order was issued from the VRS -- from the

7 Drina Corps and it was issued directly.

8 Did the fact that Colonel Blagojevic take the reins of the

9 Bratunac Brigade that day have any -- play any role in this? Absolutely

10 not. At least we have no direct or indirect evidence. Zero. We can

11 speculate.

12 What else does the Prosecution want us to believe? That placing

13 him there was a prelude to what would happen in Srebrenica so they wanted

14 one of their best men in there in advance. Where is the nexus? Where is

15 the connection? It's easy to look back at history and say, hey, now if we

16 look at it this way, they probably did this and that and the other, but

17 you have to be able to link it. You have to have some concrete evidence.

18 You can't just speculate.

19 I have to tell you, at the end of the day I told my colleagues it

20 was like being in the old country and having somebody look at the coffee

21 cup. You know, you turn it over and try to read it. That's what it

22 seemed like yesterday where they are looking into this big -- all of these

23 events and they're able to say this is what happened and this is why.

24 So this attack on Srebrenica first they say it's not a crime.

25 Well, if it's not a crime, then why are we bringing in May 25th and it's

Page 12441

1 not even in the indictment? He's not charged with that, so why are we

2 going there? It's not in -- the attack is legal but nonetheless from

3 there we can make some inferences. As a Defence what are you supposed to

4 do? Well, if I'm told it's not in the indictment, I don't need to defend

5 it. Then I come here and I'm told -- I hear all this. Then I'm beginning

6 to think, well, maybe I should have gone that route because now we're

7 outside the indictment. But in this system we have to stay in, that

8 straightjacket, remember?

9 Now, before I go on to that section let me back up a little bit

10 and stick with Colonel Blagojevic because they're saying somehow, they

11 look at his history and they say, well, he was with the Zvornik Brigade,

12 then from there he went to the Drina Corps. Of course they omitted to say

13 that he went as the Chief of Staff to the Bratunac Brigade. Kind of a,

14 you know, commander of the Zvornik Brigade, Chief of Staff. Then he gets

15 there on May 25th back in the Bratunac Brigade.

16 But let's look at it -- let's look at it for what it is. How long

17 is Colonel Blagojevic with the Zvornik Brigade? Two months. Two months.

18 Who replaces him? A younger officer. What is he doing in the Drina

19 Corps? Do we know? Nobody knows. At least we haven't heard evidence.

20 The assumption that somehow because you move to the Drina Corps and you

21 have a job over there to do, that somehow you are in the sanctum santorum

22 of all the decision makers. But that's what they would have you believe.

23 Because since he's there and he's moved to the Bratunac Brigade, it must

24 have been because he's their main man. He's the homeboy coming back to

25 Bratunac who's going to lead the charge on to Srebrenica. Where is the

Page 12442

1 evidence? There isn't any. It's pure speculation. There's none of

2 that. Not to mention back on May 25th who knows about Srebrenica. Is

3 there any linkage or any connection or any piece of evidence that shows

4 that Colonel Blagojevic at that point in time knows anything about

5 Srebrenica.

6 Now, the other assumption is that since he's from that area

7 obviously they wanted to put him in there because of the campaign.

8 Where's the linkage? How do you get there? He could have easily gone to

9 Milici or someplace else. They just happened to need somebody in the

10 Bratunac Brigade. Can we make the assumption that because he's from that

11 area, he grew up in a village, then he went to the JNA, served outside the

12 area but automatically knows the reason. Can we assume that? Based on

13 what? Based on what? You heard the testimony of Mr. Kovacevic who was

14 the commander, I believe, of the 2nd Company of the 2nd Battalion. And

15 remember he had gone to Zvornik. It's not too far. You've been there.

16 You think when you're driving the car it's pretty close. When he got out

17 on the terrain, he said that he got lost. That's one of the reasons he

18 didn't want to go out there. Same thing with Mico Gavric. He didn't want

19 to go out there because you get lost in the terrain, you don't know the

20 terrain. And what do we hear from one of the witnesses? In Kula, during

21 this critical period - I'm going to talk a little bit about that as well -

22 you had his own men say that Colonel Blagojevic was looking over the maps

23 and trying to figure out what peaks were where and what was the terrain

24 like. He hasn't served there, he doesn't know the terrain. Because he

25 hadn't been there. He had been away. He hadn't served in that area. He

Page 12443

1 hadn't walked that terrain. But to make these assumptions is very

2 dangerous. And you just can't make them out of thin air. And that's what

3 I'm getting at. Because I think if the Prosecution brings a charge, they

4 should have the facts, concrete facts.

5 Now, let me get back to Srebrenica. They say that the attack is

6 not a crime, yet they continue and continue and continue to bring it into

7 the picture. Then yesterday you saw how they went through that -- they

8 went through his order of July 5th, 1995. Now, what they don't tell you

9 is everybody else that looked at it said that this was a perfectly fine

10 order. Mr. -- General Keserovic who came here, testified how with respect

11 to the prisoners, and I invite your close scrutiny and attention to his

12 testimony, he talked about -- he compared the Drina Corps order with

13 respect to how the prisoners should be handled versus what was in Colonel

14 Blagojevic's order. And he said: This is the correct way, versus General

15 Zivanovic's which more or less left it up to the security organ. Had made

16 no provisions whatsoever for logistics..

17 Then they went and said: Well, look at this order. A defence.

18 It's important. They play an important part. Well, let's stop here and

19 take a deep breath. The interpreters may want that as well. What does

20 that tell us? Well, they were there the whole time. It wasn't like they

21 got there and they're playing defence. You know? I mean, I can

22 understand the Prosecution's position the defence is important. We saw

23 that during the European football cup, you know, the team with the best

24 defence, the Greeks. They won the cup. They didn't have the talent, but

25 it was the defence that got them winning.

Page 12444

1 So I understand that defence is important. But you also have to

2 understand, and it wasn't quite as highlighted as I would have liked, but

3 they were there the entire time. They played no role. But the attack was

4 never a crime. But now at some point on the 9th we know that the game

5 plan changes. All right? And now orders are from the top that they're

6 going to take over Srebrenica. So now we might be a little concerned.

7 But still, there is no, as far as I know, in the indictment nothing that

8 says that the taking over of the enclave was a crime. Mind you, mind you,

9 we had Karremans himself and the others all said that this was a

10 militarised enclave. It was demilitarised. So everyone had their own

11 concerns, but it wasn't a crime. Of course they had to consider, those

12 who made the decision, that by taking over Srebrenica you would be stuck

13 with those civilians there. I think the U.S. is finding that out now in

14 Baghdad. They didn't realise it at the time. Easy to go in, hard to

15 maintain. They should have thought of that. And I agree with the

16 Prosecution there that at that point some thought should have been put

17 into.

18 But again, where is the connection? How is it -- where is Colonel

19 Blagojevic in the Bratunac Brigade in this picture? Is he consulted? Is

20 he involved? They say, well, he took this walk down to Srebrenica and

21 probably did or did not meet with General Mladic. Let's look at the

22 evidence. The evidence is that he's in Pribicevac, that area, Kula, from

23 the 6th to the 11th. In comes General Krstic who is the Chief of Staff at

24 the time of the Drina Corps. Now, what does he do? Here's how to handle

25 your main man. You kick him out of the forward command post, take over,

Page 12445

1 and then you send him a hundred yards or so into a ditch and then say,

2 okay, make your forward command post over there and not consult with him

3 anymore because that's the evidence of -- the Prosecution would have us

4 believe it's all nonsense. Where is the proof that it isn't -- that it

5 is? Where? What is their evidence? Well, they're all loyalists of

6 Colonel Blagojevic, so they all must be untruthful. Based on what? Show

7 me one document, one document, point to one witness that said that there

8 was a close connection between Colonel Blagojevic and General Krstic, the

9 relationship, where was it? It's not there. But we have testimony that

10 Colonel Blagojevic was in essence kicked out of the forward command post

11 as a lieutenant colonel or colonel at the time and told to go in a ditch

12 and he's sitting over there. He has a make-shift forward command post and

13 he's not consulted. Is that how you treat your main man, the person

14 that's going to lead all of this and do all of this? Hardly.

15 When you compare how Pandurevic was treated and the role that he

16 played and the troops that he had and the involvement that he played, then

17 you begin to see night and day difference.

18 Then they bring in P135. Who can forget P135? I can't? It was

19 one of the most memorable experiences in court for me. You know. After

20 the first day you asked me whether I was trying to show that he was a

21 liar. I said no -- I didn't answer the question if you go back. Those

22 are his words, not mine. Second day he asked for protection from you

23 because he was afraid of the lawyer, me. Then somehow we find out that he

24 was complaining that during the proofing session the Prosecution was

25 shutting the drawer and yelling at him. He was all over the place like a

Page 12446

1 little bumblebee. I have to tell you, it was like shadow boxing with the

2 guy because he couldn't keep an answer straight to save his life. Then

3 what do we have at the end? The Prosecutor says the man was not -- was

4 embellishing.

5 So how credible is this guy? I suggest he's not. Do you have any

6 concrete evidence. I'm not saying he's a bad person. But probably, you

7 know, a lot of that is in his mind. Maybe he wanted to be a hero, I don't

8 know. But if you look at the facts and you look at what he was saying, it

9 just doesn't make sense. But then you also have to -- if you're going to

10 take that and you are going to build on it and embrace it like the

11 Prosecution does, because they like it. They like what they hear, and

12 that's what I said earlier. Whenever they hear something that's for them,

13 they embrace it. Never mind that it's not credible. If you're going to

14 do that, ask yourselves is there anything else that backs up that witness

15 P135 was credible? But now he's the protege. Where did that come out of?

16 That's the first time I heard it yesterday, protege. Heaven help us from

17 those sorts of folks.

18 So what else do we know about that period of time? We know that

19 there was no shelling, like the Prosecution says, of Srebrenica. If you

20 look at the documents - and I have it here buried someplace - they would

21 have you believe at one point that from Pribicevac you can look down and

22 see Srebrenica and shell it. Butler makes reference to it, it's in their

23 final brief, and guess what, and I thought I would bring this out because

24 I think it's a little circumstantial evidence of my own. When we were

25 putting that little trip sightseeing trip to visit the various sites,

Page 12447

1 interesting enough what was missing from the Prosecution's list, the first

2 list, was Pribicevac. Imagine to have this entire case --

3 MR. McCLOSKEY: I'm sorry, Your Honour, going into the details and

4 the planning of that trip and offering these inferences and getting into

5 misstatements of what the Prosecution feels you can see from there is way

6 out of line, and I apologise for interrupting but this is going into outer

7 space.

8 JUDGE LIU: Yes, yes. On this part I agree with Mr. Peter

9 McCloskey.

10 MR. KARNAVAS: Well, I'll --

11 JUDGE LIU: Well, Mr. Karnavas, I think you have a point in your

12 argument but don't make it too argumentative. Just present your view and

13 your understandings on certain evidence and issues.

14 MR. KARNAVAS: Very well, Your Honour. I wasn't aware that I was

15 being argumentative, but if you say I am then I must be.

16 But just to touch up on that last point with Pribicevac, and I

17 don't want to beat the point to death, but in their brief on paragraph 40

18 it says, and I quote: "Drina Corps units were headquartered at the

19 village of Pribicevac, which is looked -- which is located in the hills

20 overlooking the town of Srebrenica."

21 And then you have to look at the footnotes. And as you all know I

22 relish footnotes because I like to go to them and check them out and lo

23 and behold most of the time you get disappointed. But first of all, he

24 Drina Corps were not headquartered in the village of Pribicevac; that's

25 first of all. They were headquartered in Vlasenica. They had an IKM, a

Page 12448

1 forward command post, but they certainly didn't have headquarters there.

2 Then if you look at -- and then they say there is a photo,

3 Exhibit 12, overlooking Srebrenica town with the playground. But is that

4 from Pribicevac? I don't know. We weren't able to find that. I'm sure

5 it's there someplace, but you were up in Pribicevac and you can't see the

6 town.

7 Then you can see in footnote 81 it says: "Pribicevac is condition

8 Mount Olovine overlooking the town of Srebrenica," and they point to

9 transcript page 4350. So if you go to 4350 and you look at it, and it's

10 Mr. Butler's testimony, I dare say you will be disappointed. There won't

11 anything about it, and you won't be able to see it.

12 And again, I point this out as a vignette so I can cover the point

13 that, one, you cannot see anything from Pribicevac, and also the point

14 that somehow some of these little things get snuck in inadvertently, I'm

15 sure, but nonetheless they shouldn't be in there. But they want to make

16 the case that there they were shelling. Where is there evidence that the

17 Bratunac Brigade did any shelling of Srebrenica town? And mind you, as I

18 understand, you were all able to go to Srebrenica. Did you see anything

19 of the shells that they are talking about? There is no evidence. There's

20 none that I have been able to see.

21 Now, there is incidentally some -- they do reference -- while I'm

22 at -- on the point, they do reference a 92 bis witness that came in,

23 Mr. Kingori. He testified in the Krstic trial and his testimony came in

24 from the Krstic trial. He was a UN military observer. Interesting.

25 Interesting because when I went to look him up, guess what he says. He's

Page 12449

1 emphatic in the Krstic trial testifying in front of the Honourable Members

2 of that Tribunal [sic] that at the time -- that at this particular time

3 Srebrenica was completely demilitarised because it had been declared an

4 enclave. Now, why do I mention that? Just as an aside, because here if

5 he says contrary to all evidence -- even the Prosecution admits that

6 Srebrenica was militarised, he's there at the time, he's walking around,

7 he's seeing what's going on, and he's saying under oath to the Judges that

8 Srebrenica was demilitarised, didn't have any weapons because they had

9 given up all their weapons. I think you can take that and draw all sorts

10 of conclusions such as maybe he has a creative imagination, maybe his

11 testimony is not trustworthy. Well, those are the kind of conclusions

12 that I draw because I don't think that you can be a UN military observer

13 in Srebrenica and say that it was demilitarised when we have Karremans who

14 was there who said it was getting militarised. Mind you, his own people

15 were held at gunpoint and held hostage for 30 days by the Bandera

16 Triangle. So anyway, I just point that out.

17 Your Honours, I don't know how am I doing on the time? I can keep

18 going or it's up to you.

19 JUDGE LIU: Did you finish that section?

20 MR. KARNAVAS: I think I finished the section, and I might be

21 speaking a little faster than I should. I can keep going. I mean, it's

22 just -- but it might be a good opportunity to sort of take a breather, but

23 it's up to you.

24 JUDGE LIU: Well, it seems that we have to stop every hour and

25 maybe we'll take the break right now and we'll resume at 12.00.

Page 12450

1 --- Recess taken at 11.30 a.m.

2 --- On resuming at 12.00 p.m.

3 JUDGE LIU: Well, Mr. Karnavas, just for your information we'll

4 sit until 1.30, and that will be three and a half hours in the morning

5 session. And in the afternoon session you still one hour to go.

6 MR. KARNAVAS: All right. It won't be enough, Your Honour. It

7 won't be enough.

8 JUDGE LIU: Well, we'll see.

9 MR. KARNAVAS: Okay. I'm just getting warmed up. Okay.

10 Now, I want to get to the 11th and the 12th, the meetings at Hotel

11 Fontana and what have you. But first I really want to touch a little bit

12 on this All People's Defence, that at one point I believe, Mr. President,

13 you said I was obsessed with. And I wasn't. But I wanted to make a

14 point, and I think it's an important point, and I want to explain why.

15 Because we have to understand the events in context. One of the reasons

16 brought it out was - and if you go back to Mr. Butler's testimony,

17 Mr. Butler comes from the United States, it's a different system, military

18 system, he came and he reviewed the regulations, and of course he relied a

19 lot of his information and based a lot of his analysis by reading the

20 regulations and also by speaking to some of the witnesses. He indicated

21 that he did not consult with any local experts, local military experts.

22 By that I mean that were, you know, non-Serb or non-Muslim. They could

23 have gone to Croatia, Slovenia, Macedonia, they could have gone elsewhere

24 to look for someone that might be able to give him some of that local

25 knowledge that I believe was necessary. He didn't do that. And if you

Page 12451

1 recall there's an exchange where I ask him about the All People's

2 Defence. He said he was familiar with it, but he paid no real mind to it.

3 He really didn't think it was that necessary.

4 Now, the reason I kept asking all the witnesses about All People's

5 Defence wasn't because I needed to know about it, or -- and I figured

6 early on that you understood what the concept was. So it wasn't as if I

7 was trying to beat a dead horse as the saying goes, but rather what I

8 wanted to show was this concept is so prevalent, so all-knowing for those

9 people that lived in that part of the world. That to begin to understand

10 society as it functions and how the military works in conjunction with

11 civil organs, you cannot even begin unless you know the military doctrine

12 as it existed. Because Mr. Butler, his position was, well, the VRS is an

13 extension of the JNA, save for a few modifications. What he left out was

14 the core military doctrine. And the core military doctrine -- in fact,

15 the entire nation had been indoctrinated, if you will, in that. Everyone

16 understood and knew that they had a vital and important role to play,

17 whether they were a man or a woman. You served your military duty, you

18 would be on the reserve. If you were a woman, you would have a particular

19 task. But everybody understood -- and you even had classes. Remember, we

20 had the one gentleman who said he was a teacher and he said that he

21 taught. I asked him: Was that one class? He says, no, no, that was

22 every grade. The whole purpose of the All People's Defence was if there

23 was an invasion of Yugoslavia, because the JNA was never an army developed

24 to attack outside but rather to defend the motherland. And the way they

25 worked it was you would have the professional army but then you would have

Page 12452

1 the Territorial Defences that would be working in conjunction. And they

2 had drills. And because of this concept, this war was rather unique

3 because it was easy for all sides, all factions to take their Territorial

4 Defences and turn them and mobilise them into armies. The Croats did it,

5 the Muslims did it, the Serbs did it.

6 Also what's important about the All People's Defence is this

7 mobilisation process and the workings with the Ministry of Defence. Now,

8 why was that important for the Defence because if you look at it from the

9 abstract and circumstantial evidence -- and here's again where I part

10 company with Mr. McCloskey. If we just look at the events and you say,

11 okay, there's the meetings at Hotel Fontana on the 11th. On the 12th you

12 have one meeting. All of a sudden buses and trucks arrive, therefore,

13 therefore, what can we conclude? Quite easy, that there was a plan well

14 in advance to mobilise, to get all these vehicles, to get all that fuel --

15 MR. McCLOSKEY: Objection, Your Honour.

16 JUDGE LIU: Yes.

17 MR. McCLOSKEY: I apologise. But I have repeatedly stated in this

18 trial that that is not the theory of our case. And I think I stated in my

19 closing argument that they got this together suddenly and that I think the

20 All People's Defence helped them be able to get those buses together. And

21 if time is going to be an issue, perhaps that will save us some time, but

22 I don't know how many times I can say that.

23 MR. KARNAVAS: Okay. All right. All right.

24 Now, if I can point out -- you know, see, I love these mea culpas,

25 but they are not enough, they are not sufficient, because when we go to

Page 12453

1 paragraph 100 of their brief -- there's a reason why I'm saying these

2 things because I'm a little paranoid. I look at their brief --

3 paragraph 100: "The fact that the operation appeared well planned

4 underscores the coordination that had to have occurred and commanded

5 levels of the various units involved as well as the primacy given to the

6 forcible transfer operation in light of the diversion of resources

7 involved at a time when the VRS was seeking to redirect its assets to the

8 Zepa front."

9 Now, we have an admission here but I have this to deal with. As I

10 said, the target is moving. And so which one is it? And what I'm trying

11 to say is also -- and I can appreciate Mr. McCloskey and I welcome -- he

12 can -- if he has any more concessions, you know, now's the time. But what

13 I'm trying to use this also as a vehicle of circumstantial evidence.

14 Because if you're looking at it from the outside not knowing of this All

15 People's Defence, you say, my God, how can they all get there. Even

16 Mr. Karremans thought, he thought that there was some kind of plan between

17 the Serbs and the Muslims, you know, the government in Sarajevo, and

18 that's how they were able to mobilise.

19 Again, I'm trying to show the dangers of circumstantial evidence.

20 But also this mobilisation process, they were -- everybody was supposed to

21 comply with it, and we had the one witness, the one soldier from the

22 Bratunac Brigade whose bus was mobilised. And he went to the local

23 authorities. He didn't like it but decided that he was going to drive his

24 bus anyway because he didn't want somebody else driving it because they

25 were going to take it. There was fuel for it, and the gentleman did go to

Page 12454

1 Potocari. And then -- and I say this with some degree of discomfort that

2 the Prosecution uses that as a vehicle to suggest that somehow this

3 individual or others that were there helping out some friends knew of this

4 genocidal plan, that's why they wanted to get them out. It's in the

5 brief, Your Honour. It's in the brief. I felt the same way. That's why

6 I said, it's of some discomfort. It appears that no good deed goes

7 unpunished. But what was in those people's minds, they saw that the

8 person was being separated, they wanted to help him out, and it appears

9 that even a good Samaritan now, we turn it around and say, ah. He knew

10 about it, he must have known about it, and he was a member of the Bratunac

11 Brigade. Therefore, his commander for sure would know about it, thus the

12 kind of circumstantial evidence that they're dealing with.

13 Also I wanted to bring this mobilisation process into play in the

14 All People's Defence because of the use of the fuel. I'm going to touch

15 upon this a little bit even though I'm going to get ahead of myself. When

16 I had Mr. Butler on the stand there was some hypotheticals. You can go

17 through them, Your Honours, it's in the testimony, but I'm talking about

18 the functional relationship, Drina Corps, Bratunac Brigade, rear services.

19 Again, circumstantial evidence. This is how dangerous, insidious it is.

20 Circumstantial evidence and not the witnesses. They see the logbook that

21 says all this fuel from the Bratunac Brigade was consumed. Butler from

22 there extracts this conclusion that because the fuel was such a large

23 amount it would have been outside the functional relationship in a sense

24 because here the Drina Corps is siphoning up all of the fuel of the

25 Bratunac Brigade, and therefore, from there we can extract another

Page 12455

1 conclusion and that is that Major Trisic would have most definitely

2 informed his commander, Colonel Blagojevic. All from that.

3 Now, a couple of points. First, Major Trisic had been interviewed

4 by the OTP. They could have brought him on if they wanted to advance

5 those theories; they did not. Can we draw any conclusions? Well, I can

6 tell you that I can draw plenty of them, but I will leave that up to you

7 why they didn't call him to at least explain in his own words what those

8 documents meant. We brought him.

9 Secondly, we had Mr. Trisic explain that this is an accounting

10 procedure, that the fuel belongs to the Drina Corps, not to the Bratunac

11 Brigade. But somebody has to take accounting for it. But then -- so

12 therefore you cannot make any conclusions as somehow because of this

13 accounting procedure Colonel Blagojevic would have been notified.

14 Again, we brought that information to you, another plausible,

15 reasonable explanation. And again, ask yourselves: Why wasn't he brought

16 in by the Prosecution? All right. Let's don't dwell on it.

17 But then he explains away all of that. But also if we go back to

18 the meetings in the Hotel Fontana we see that at some point General Mladic

19 says: We'll provide the buses, you're going to have to provide the fuel.

20 All right. Now, let's park a little bit over there; let's pause.

21 Now, the Prosecution's case began with them bringing in a slough

22 of Dutch folks of DutchBat, and what was their theory? Remember Major

23 Boering? In fact, I can remember it like yesterday. There was even an

24 admonition from the trial bench, and rightly so, because perhaps we were a

25 little bit too exuberant with the gentleman when he was being

Page 12456

1 cross-examined. But through Major Boering they were trying to establish

2 that it was the VRS, it was General Mladic, who had initiated the meeting.

3 Why is that important? Yes, Mr. President, because there is a whole

4 exchange between me and Major Boering, and the implication was that

5 somehow the Prosecution at that point in time - the theory was - that it

6 was the VRS, General Mladic, who initiated the meeting and was also the

7 one who initiated the concept of the forcible transfer. And I asked him

8 some questions about Karremans. Of course Karremans we know was in Spain.

9 We brought him; the Prosecution could have, but we brought him. And he

10 was able to fill in some gaps for us. He told us that the UN contacted

11 him and told him to contact the VRS to begin to arrange for the evacuation

12 process of the people that are gathered in Potocari.

13 And you're going to see a reference in the brief of the

14 Prosecution, the final brief, where again there is a -- there is an error.

15 And the error is that they point to one section of the brief where -- of

16 the transcript of Colonel Karremans where he is going through his mental

17 process and then you'll see -- I ask pointedly right after that

18 concretely: What happened at the Hotel Fontana? You see the film. And

19 there we see that Karremans comes clean and tells us that he had been

20 ordered to make arrangements.

21 We also know through Colonel Karremans and through the NIOD report

22 that the UN had been talking about this, the local government had been

23 talking about this, and so this was -- this wasn't something that was

24 initiated by General Mladic. I think that's relevant. I think the fact

25 that the Prosecution makes a big issue of the trucks being mobilised and

Page 12457

1 somehow the Bratunac Brigade must have known all about it. Well, think

2 about it. Let's stop -- let's park again over here and stop. We're in

3 Hotel Fontana, we're the fly on the wall, we're watching and we're seeing

4 what's going on. In fact, we're shadowing, we're shadowing, General

5 Mladic.

6 If you were there on those particular days what you would have

7 heard is General Mladic -- okay, he was yelling at Karremans. Karremans

8 was not being very responsive, let's face it. We saw him on the video.

9 He was scared. All right. But it was very clear that Karremans had

10 approached him for the evacuation. There is this exchange. It's clear

11 afterwards - and I believe it's on the 12th and I'll be corrected if I'm

12 wrong - that General Mladic for the first time says, "We're going to

13 screen the military aged men to look for war criminals." All right. And

14 then we have -- if we pan over to Potocari and we see General Mladic, we

15 see him addressing the folks. Everybody that hears General Mladic says:

16 You can go wherever you want to go, nothing will happen to you, we're

17 going to separate the men.

18 What am I driving at? Why would anybody think differently? Can

19 we make that assumption that everybody knew that General Mladic was lying

20 to all these people? That General Mladic had this genocidal intent? That

21 he had all these other plans? From where can we derive? How can we

22 extract that and say Colonel Blagojevic must have known, because the

23 meeting happened in Bratunac. What is the knowledge of his men, what

24 their hear? Why would they question what they hear? Think about it. And

25 I throw that out because now it is an important factor. So before we

Page 12458

1 start jumping to conclusions that all those men knew that the separation

2 meant killings and the separation meant genocide, we have to pause and ask

3 ourselves what did those men know at that particular time based on what

4 information when they heard their own general, the head of the army

5 saying: You will go wherever you want to go, we're just going to screen

6 these people. And we'll talk about the other stuff that happens later on.

7 The Prosecution has maintained from day one, and it's in the

8 indictment, that straightjacket, that the plan to execute everybody was on

9 the night of the 11th or 12th. It's in the indictment, black and white,

10 there. We have it; we can't get away from it. Yesterday it was, well,

11 okay, maybe it was the 12th or the 13th. If not the 12th or the 13th, the

12 13th for sure. But which one is it? Don't I have to know which one is it

13 if I'm going to defend?

14 MR. McCLOSKEY: Objection. That's a misstatement of my

15 argument --

16 JUDGE LIU: Your microphone, please.

17 MR. McCLOSKEY: That is a direct misstatement of my argument, Your

18 Honour, and it's too crucial a point to let that stand. I think you heard

19 the argument. I told you when I thought the plan was held and I supplied

20 you the evidence regarding it. That is a misstatement and it is too

21 crucial for me to be quiet on.

22 MR. KARNAVAS: Your Honours, you can read the transcript. There's

23 not need -- and he can get on rebuttal and he can yell all he wants. But

24 that's what he said yesterday. But in any event, we've got the transcript

25 and I'll move on.

Page 12459

1 If you read his final brief he says, well, the moment that General

2 Mladic said that the men are going to be separated, everybody knew at that

3 point that it was genocide time. That's what they argue now. So first

4 there's this meeting, then all of a sudden when he says, "We're going to

5 separate." Which one is it? Stick with your story and let's go with it,

6 but it can't be changing back and forth. And it's changing because they

7 have no evidence, Your Honours. They have no evidence.

8 Yes, Colonel Blagojevic was the commander of the Bratunac Brigade;

9 that doesn't mean that it was involved in anything. Name me one witness,

10 one single witness, who saw Colonel Blagojevic in the meeting. What do

11 they say? Well, we've got Momir Nikolic. All right. Let's talk about

12 Momir Nikolic. Where can I start? I need a day just an Momir Nikolic.

13 But let me just say: What is it Momir Nikolic tells us? He says on the

14 morning of the 12th I'm standing in front of the Hotel Fontana and that's

15 when I here from Popovic and Kosoric that there's going to be this plan to

16 kill everybody, and they're asking me where we could find places to do the

17 killings. All right. Let's freeze the frame right there.

18 Now, if you recall and you go back, and I invite your close

19 scrutiny and attention to that rather contentious cross-examination. On

20 that particular point I was trying -- I asked him a question. Did he see

21 himself on the video. He wouldn't answer. And then, Mr. President, he

22 asked you him the question, and he answered and he said yes. Do you

23 remember I asked him if he could let us peek into the mind of somebody

24 who's trying to create a story because he admitted that he had lied -

25 that's the word that he used - to the Prosecution. And he told us that he

Page 12460

1 wanted to make a deal with the Prosecutor. Everything he kept giving

2 them, they already had. So he needed to give them something they didn't

3 have. Now, what did he have in his possession? All the disclosure

4 material, from indictment to every single document, including the videos.

5 So he looks at the video and then he can say, well, I'm in front of the

6 Hotel Fontana, 11th and 12th. Well, how do you know? Well, look at my

7 video. And that's how he begins to concoct his story.

8 Now I've got to tell you, I'm a little troubled by Momir Nikolic,

9 and I'm a little troubled about the way it was handled because he's the

10 only witness that was debriefed, at least that I know of, important

11 witness who was cooperating where they didn't tape-record all those

12 sessions. Now, I've got to tell you, I'm a little suspicious. But I know

13 for sure --

14 MR. McCLOSKEY: Objection, Your Honour.

15 JUDGE LIU: Yes.

16 MR. McCLOSKEY: First of all, that's not true. Obrenovic was

17 dealt with the exact same way. And his suspicions about some speculated

18 evil of the Prosecution, have we not had enough?

19 JUDGE LIU: Yes. You're out of your line at this point. Please

20 concentrate on your theory of the interpretation of the evidence.

21 MR. KARNAVAS: That's what I'm trying to concentrate, Your

22 Honour. Because somehow we have Momir Nikolic who gives them all this

23 information based on the information that he has from the Prosecution.

24 Then what happens, the Prosecution doesn't check it and we have the one

25 incident with Mile Petrovic where somebody is accused of killing six

Page 12461

1 people. Now that made international news. That was on the front page of

2 The Herald Tribune around the world saying "first Serbian officer to

3 admit," and so on and so forth, and there's this grisly description of how

4 he talks about Mile Petrovic killing somebody. They didn't bother to go

5 check it out. He was with Mirko Jankovic, supposedly; that wasn't checked

6 out. Statements with the Bratunac police department; those weren't

7 checked out. They did nothing to check out that information.

8 MR. McCLOSKEY: Your Honour, I'm going to object again.


10 MR. McCLOSKEY: He doesn't know what the Prosecution did fully.

11 He had questions on it. What on God's green earth is the purpose of this?

12 How is he defending his client? He's not. He's defending his own ego.

13 And it's repulsive.

14 MR. KARNAVAS: Your Honour --

15 JUDGE LIU: Mr. Karnavas, don't do some speculative argument at

16 this stage.

17 MR. KARNAVAS: Well, Your Honour, if we could point out to one

18 piece of evidence where they talk to Mile Petrovic or something because we

19 had those gentlemen here. What I'm trying to suggest, Your Honour, is

20 every time that there is a piece of evidence that is helpful to their case

21 they cling on to it, no matter what. They don't check it. Because they

22 are not interested.

23 JUDGE LIU: Making an attack or argument with the Prosecution is

24 not the purpose of these proceedings.

25 MR. KARNAVAS: Your Honour, I understand that.

Page 12462

1 JUDGE LIU: If you have a point, you know, just tell us what's

2 your understanding of the theories of the case. It's very simple.

3 MR. KARNAVAS: Yes, Your Honour. The point that I'm trying to

4 make is there are other reasonable and plausible explanations that the

5 Prosecution was never interested in, and yesterday we didn't hear one

6 single one of them. And I have to wonder. I have to wonder why all of

7 the Defence witnesses somehow are not credible.

8 MR. McCLOSKEY: Your Honour, I can get up and defend our honour

9 all day long, and I will. But this is not defending his client; it's a

10 constant attack on the Prosecution. It's a theory best left for American

11 politics and not in the courtroom.

12 JUDGE LIU: Mr. Karnavas, I believe that you have to cool down,

13 although you've said you haven't warmed up yet.

14 MR. KARNAVAS: Very well, Your Honour. Very well.

15 Let's talk about the yellow bridge where it was Mr. Waespi that

16 called our Serbian witness that he was engaged in convoy terror. I think

17 we can remember how the gentleman reacted to that. The Prosecution's

18 theory is that somehow Colonel Blagojevic was involved in that as well,

19 that as soon as he took over the Bratunac Brigade that he was engaged in

20 this convoy terror or a procedure like that.

21 Again, the Prosecution fails to look at any other plausible and

22 reasonable explanations such as, for instance, the evidence that shows

23 that this was a Main Staff operation, that the witnesses that came --

24 okay, granted, they were Defence witnesses. So I guess we need to be

25 suspect of that. But what did they say? If there was a problem at the

Page 12463

1 checkpoint they contacted either the Drina Corps or the Main Staff, not

2 Colonel Blagojevic. That's on the record. Do we hear that from them?

3 No. Why? Another plausible and reasonable explanation. What was the

4 purpose of the gentleman who came here and was attacked, in my opinion, as

5 far as trying to starve out the people in Srebrenica, what was his

6 answers? His answer was, look, I look at the manifest. If there's

7 something in the truck that's not on the manifest, I have orders not to

8 let it go. That's all. But somehow they try to make this out to be that

9 the Bratunac Brigade and that Colonel Blagojevic specifically was involved

10 in this. There's no evidence of that.

11 I talked a little bit about the meetings. We don't have a single

12 meeting where Colonel Blagojevic attends. The Prosecution would have you

13 believe, if you read between the lines, that Momir Nikolic was there on

14 behalf of Colonel Blagojevic and that he was reporting to him and that --

15 and yesterday we heard this absurd - and that's the only word I can come

16 up with - that this absurd theory that since Drago Nikolic and Obrenovic

17 had this close relationship that it must have existed between Momir

18 Nikolic and Colonel Blagojevic because they shared the same positions.

19 But what did we hear when we had Mr. Nikolic on the stand, Momir?

20 He said from the 6th to the 11th he had no contact with his commander. Do

21 you remember that? How many times did I ask that? I said 5th, 6th, 7th,

22 8th, 9th, 10th, 11th. I kept repeating it over and over and over again.

23 I wanted to drum it home to everybody. Because here is the guy who is the

24 head of intelligence and security. The Prosecutor would have you believe

25 that as of the 12th this guy who doesn't report to his commander all of a

Page 12464

1 sudden is reporting. All of a sudden he's operating consistent with the

2 chain of command.

3 And I questioned him: Wasn't this the most important campaign of

4 the Bratunac Brigade? After all Momir Nikolic had been the commander of

5 the Territorial Defence before the Bratunac Brigade was established. And

6 commanders kept coming and going, but there was Momir Nikolic with his

7 Ray Bans, smoking his Marlboros, dressed to the nines, and he was there.

8 He knew exactly what was going on. Where was he during those critical

9 days? Nowhere to be found. Was there an answer from the Prosecution or

10 from Momir Nikolic explaining his activities? Zero. Is that another

11 plausible and reasonable explanation that we can draw from, that piece of

12 evidence? Yes. That tells us that he here's a guy who does whatever he

13 wants. He's self-managing.

14 Do you remember the very last question, Mr. President? You asked

15 him about his relationship. And then it was as if he was speaking in a

16 normal tone, and then all of a sudden there was a switch as if he was some

17 place else; you had touched a nerve. And he talked about how he had to

18 drive I don't know how many kilometres away to give orders to the military

19 police because the military police would not respond to Colonel

20 Blagojevic. Do you remember that? And from that little exchange we saw a

21 lot. We saw somebody who had absolutely no respect for Colonel

22 Blagojevic, for his own commander. And what do we see? We see that

23 throughout this period that he is with Popovic and he's with Beara.

24 Now let me go back to the 11th -- the morning of the 12th. The

25 Prosecution would have us believe that Nikolic is an honest witness on

Page 12465

1 that event. Never mind they wanted to bring in Witness 130 who was going

2 to say that Nikolic had committed perjury.

3 But think about it. If he told Popovic where to take those bodies

4 and he's telling him, and if he's so close with Beara why does Beara on

5 the morning of the 14th need to try to locate the brick factory? Why is

6 Beara talking to Deronjic on the night of the 13th? He's got Nikolic, if

7 this is occurring. Nikolic can show him around. Why does Nikolic have to

8 go up to General Mladic supposedly to report in Konjevic Polje - and

9 there's absolutely no evidence to that - but he said, "I went to give a

10 reporting and I asked the general what will happen to the men." And he

11 says -- he did one of these. Well, if you already know why would you even

12 go up to Mladic, not to mention everybody ran away from Mladic. This is

13 the only witness that ran toward him. We heard what Mladic would do to

14 soldiers, usually slap them.

15 So -- but I bring back if this really happened on the 12th, why

16 would Beara need to talk to Deronjic? Now, interestingly enough,

17 Deronjic, the capo de capo [phoen] of Bratunac, Mr. SDS. This guy was

18 number one by everybody's standard. Everybody. There wasn't a single

19 witness that we brought in that didn't say that he was the number one, and

20 Deronjic even admitted it himself.

21 Now, yesterday -- interestingly enough, just as an aside, the

22 Prosecution's office has given him effectively what I call immunity

23 because the deal he made with the Prosecution was: Whatever you tell us

24 we won't use against you with Srebrenica. So of course then they came out

25 and said we don't have any evidence. I mention this, Your Honour, because

Page 12466

1 yesterday, yesterday for the first time we heard a disassociation of the

2 Office of the Prosecution from Mr. Deronjic. Go back to the transcript,

3 listen to what the Prosecutor said. He basically said, hey, this guy

4 cannot be trusted, cannot be believed. Now ask yourselves why. Going

5 back to my earlier remarks at the beginning of my closing.

6 Deronjic, I had him on the stand for four days, and I have to say

7 that it was rather tense. I'm sure it wasn't a pleasant experience for

8 Mr. Deronjic. For me it was much more pleasant than for him. But it was

9 extremely unpleasant. At times you could see he was visibly shaken

10 because I was putting him, to use Mr. McCloskey's terms, in the vortex of

11 the killings and I was placing blame on him because he was the

12 commissioner of Srebrenica and was responsible for all the civilians.

13 So where am I getting with all of this. We have two things.

14 There's so much, Your Honour. There's so much to cover.

15 Where am I getting with all this? Two points. First of all,

16 Deronjic comes in and says: I don't recall Nikolic being there at that

17 meeting, and then he told us why. I don't want to go into that, but we

18 all know. Now we're beginning to see that maybe Nikolic is not a

19 trustworthy witness.

20 But secondly there was this wonderful question by Judge

21 Vassylenko, and I want to thank you, Judge Vassylenko, because you asked

22 him. And remember what he said. I have been -- for the last four or five

23 years I have been researching this case, investigating it, because he's

24 trying to find out all the facts so he can cover his own back, so he can

25 come up with his own alibis. He can figure out who to massage in order to

Page 12467

1 make sure that he's not in the loop.

2 And what does he say? That all this time, all this time, I

3 haven't heard one single word about Blagojevic. He wasn't at any

4 meetings. He was a man of no importance. He had nothing to do with the

5 SDS. He didn't hear anything. Now, that's a bad fact for the

6 Prosecution. So now we have to say that Deronjic cannot be credible

7 because of that. How can you say he's credible about all these other

8 things but here he's not credible.

9 I mention that, Your Honours, because I think it's important to

10 understand. And what did Deronjic say? They're having this meeting -- he

11 has this meeting on the night of the 13th. He's concerned -- let me back

12 up a little bit, because it is on the afternoon of the 13th, as I recall,

13 that he has a meeting with Borovcanin who is the head of the MUP unit.

14 Borovcanin has come to complain because he's heard that Mladic is leaving

15 town. He's going to Zepa and that the prisoners are going to be the MUP's

16 responsibility, and they don't want that because they have other things to

17 do, they don't have the resources, whatever the case may be. There's no

18 mention about any killings or anything. So he goes and he has this

19 meeting with Deronjic. Deronjic at some point contacts Karadzic and says,

20 hey, what's going on? The whole town of Bratunac is full of these people.

21 Whose are they? What's going to happen to them? And there's that little

22 cryptic message from President Karadzic. Next you know here comes Beara,

23 whiskey bottle in one hand, and he's ready to talk to Deronjic about where

24 to take these prisoners because he's got a job to do.

25 Did we hear any evidence at any time of anybody saying, let's get

Page 12468

1 in Colonel Blagojevic? You remember there was that talk about the safety

2 of the town. Did anybody say: Hey, we should contact Blagojevic. Did

3 anybody? Is there any meeting? Is there any mention? I'm not talking

4 about the mentioning of Colonel Blagojevic in intercepts. But at this

5 critical point -- and then if you want to really believe Nikolic, and I

6 must tell you that I don't see a shred of credibility with that man. He

7 says: I was there, we had all these meetings, it was terrible, then I

8 went and had this private conversation with my commander because I wanted

9 to inform him, it's around midnight. What did you do after that. He said

10 he told his commander: I don't know how we're going to get through the

11 night. Remember? Imagine. A town full of prisoners and you don't know

12 how you're going to go through the night. So what did you do after that,

13 Mr. Nikolic? I went home. Then what did you do? I went to bed. Okay.

14 Does that sound logical? Maybe in Momir Nikolic's world. It certainly

15 doesn't sound logical in anybody else's world. And then the Prosecution

16 wants you to believe that everything is working out according to the chain

17 of command with respect to Momir Nikolic, and every time he says that he

18 has a meeting with Colonel Blagojevic is what I call the four eyes, four

19 ears. There's nothing else to support it, nothing to substantiate it.

20 I'm getting a little excited, Your Honour. It's very difficult

21 not to when I'm speaking about Momir Nikolic.

22 Momir Nikolic tells us that he was the coordinator. What does the

23 Prosecutor do in their brief? They say, well, you know, we brought some

24 Dutch witnesses, and they even say that he was coordinating. I want to

25 bring you back to that one little vignette where we had I believe it was

Page 12469

1 Van Duijn. Tall good-looking young man. And he said that he was able to

2 see what -- he saw Momir Nikolic from afar and from these hand motions you

3 could tell that Momir Nikolic was in command. And I pointed out to him

4 because I had his record that he had been to Greece where we talk with our

5 hands. And I asked him, well, then when you go to Greece you don't need

6 to know the language because you can watch people's hands and figure out

7 what they are saying. And there was an objection at that point.

8 But the point I wanted to drive is this: He walks around,

9 strutting around like a peacock. Dressed good. So maybe he gives off

10 this aura that he has some importance. But what does he say? He says

11 that Colonel Jankovic of the Main Staff, who it would appear is now

12 subordinated to the Drina Corps, has made him the coordinator. Then we

13 have our own witness who comes there and says, yes, I was tasked to make

14 an accounting of all the people that were getting on the buses, I was

15 working with Colonel Jankovic.

16 Now, let's stop here. Here's a colonel. The colonel is tasking a

17 captain, not even first class, reservist, to coordinate all these officers

18 that are above him in rank. And the colonel himself is doing manual

19 labour in Potocari. Now, what's wrong with that picture? It just doesn't

20 fly. What's more, I'm a little troubled. We weren't able to get

21 Mr. Jankovic here, but why wasn't -- why didn't the Prosecution contact

22 Salapura, to bring him here, to explain to us -- we brought Salapura here

23 and he told us that Jankovic was there probably as a liaison officer, he's

24 not a commander, so he cannot give orders. You remember yesterday?

25 Commanders -- remember that whole speech of Beara being an empty vessel?

Page 12470

1 I love that. Empty vessel, Beara. Well, if we take that, Jankovic was

2 certainly much smaller an empty vessel and could not give any orders, and

3 there's absolutely nothing, nothing, nothing that says that Momir Nikolic

4 was coordinating.

5 But we did bring some witnesses here. What did they say? Well,

6 they said that he's walking around. We know on the 13th he's driving a

7 blue car - apparently he has a preference for blue cars - and he picks up

8 a couple of his friends and he drives to Potocari and he walks around.

9 This guy was so narcissistic that if he had been named the coordinator of

10 all these people do you think that he would not tell his friends he's such

11 an important guy. He's a want to be who never was and never will be. He

12 wants to be big, he never was, and he never will be. He wants to get in

13 front of the cameras; that's Momir Nikolic.

14 But we also know on the 14th he goes to the UN trying to collect

15 rent from them, again in that blue car; that he denied. Is there anybody

16 that really said that he was coordinating? The Prosecution said, well,

17 Major Trisic said that he was coordinating. He's walking around and he

18 might be giving some directions to the Bratunac Brigade military police.

19 Is that coordinating all those units? Did he coordinate with Major Trisic

20 who was there to give water and bread? No. Name me one officer that they

21 brought here that said he was the coordinator, not one single one. Yet

22 they would want you to believe -- and he wants them to believe, that's the

23 sad part about this, you see. They want to believe him because they have

24 to believe him because the more important Nikolic is, you see, the more

25 involved Colonel Blagojevic is. That's the key. So if Nikolic is out

Page 12471

1 there coordinating, that means he's there probably with the blessings of

2 his commander and somehow things are working. But we see at no time, at

3 no place does he ever report to anyone.

4 Now, let's talk a little bit about the military police. Again, I

5 apologise to the interpreters. I'm switching topics, but there's so much

6 to cover, so much. I talked a little bit about the yellow bridge, I'll

7 move on.

8 On the morning of the 12th, apparently some of the military police

9 are ordered or tasked, whatever you want to call it, by Momir Nikolic to

10 go into Potocari. We brought those witnesses here. We brought them

11 because we thought it was important. And what did they say? They said,

12 well, we were ordered to go there and we were ordered to stand next to the

13 DutchBat to protect the population.

14 Now, the Prosecution would have you believe that every single one

15 of those folks is not telling the truth. Why -- except with one person,

16 because they did not see any separations. Well, can we apply that same

17 standard, Your Honours, to Mr. Karremans? Karremans was on the stand.

18 Why would he say that he walked around for that two-day period and didn't

19 see separations? He didn't notice the white house. Could it be that

20 there were so many people, there was so much activity, there's all this

21 stuff going on that it's possible that he's just not paying attention.

22 We're not saying it didn't happen, it happened. But why would Karremans

23 say he didn't see it, he didn't see abuses.

24 Think about that. Is it possible that they were just there

25 because they were ordered from Momir Nikolic, and what can you infer from

Page 12472

1 that? They're sitting there and they hear General Mladic say: Nothing

2 will happen to you. It's on the video. You can go wherever you want to

3 go. We can disagree and say, well, they really didn't have a choice.

4 That's a different issue. The point is they're listening to the highest

5 military officer. Why would they have any reason to believe something

6 would happen to them?

7 Mile Janic, the gentleman that came, he said I was tasked to go

8 and report to Colonel Jankovic, and I was then seconded or subordinated to

9 him, and I took an accounting. He was quite specific and if you look at

10 their brief what they cite and if you look at the record, you'll see that

11 there is perhaps -- there is a discrepancy. I asked him specifically

12 whether he counted the men, the answer was yes. I asked him whether he

13 counted them separately, the answer was no. He was just lumping them all

14 in. There was no one taking a separate accounting. He was told to count,

15 he tried to count them initially proper and then he decided it was too

16 much, and so it was about 50 or 60 per bus. Then in the afternoon of the

17 12th he said the men became restless because of the white house, and so at

18 that point Colonel Jankovic made the decision to send about 10 or so

19 buses. And I don't think there's much disagreement here. We say around

20 500 or slightly more; they say 750, somewhere in that neighbourhood.

21 But that's when they're sent over there. He says that he sees the

22 folks at the white house. He has no reason to believe that anything was

23 going to happen to them. He guards them at night, I believe. And then

24 the next morning he goes back, he does his duty.

25 Now, I want to focus a little bit on the night of the 13th going

Page 12473

1 into the 14th. A small piece of evidence but I think it speaks volumes.

2 According to Mile Janic, Colonel Jankovic is there for those two days. We

3 even have Franken approaching him with the list. He says, yes, I know,

4 we've got about 6.000 people. I think that tells us that Colonel Jankovic

5 has nothing to fear. Because he doesn't think anything is going to

6 happen. He's not trying to hide the number of people that were captured.

7 He's just making that statement.

8 But what does he do 30 minutes into the 14th. We have the

9 exhibit, I don't have the number. But he writes a note to the

10 intelligence of the Drina Corps and that's how we know -- that's one of

11 the pieces of evidence that we know he has been subordinated to the Drina

12 Corps because the other piece of evidence is from Mr. Salapura and they

13 seem to jive, to connect, the link.

14 What does he do? He says at the bottom that this is a good

15 opportunity now to show the rest of the world that we're treating these

16 prisoners properly. Now, think about it. Here is the guy who is

17 intelligence, so he must know something. I mean, if Momir Nikolic knows

18 something, Jankovic must know something. He's on the ground, in the field

19 working, and he sends a report and he sends it from the Bratunac Brigade,

20 so it's slightly after midnight. So what is in his mind? What is he

21 thinking? What does he know. What can we extract from that piece of

22 evidence?

23 Well, I suggest a plausible and reasonable explanation is that at

24 that point in time Colonel Jankovic has every reason to believe that

25 nothing is going to happen to the men. I think that is a plausible and

Page 12474

1 reasonable explanation because why else would he send it unless we're

2 going to fast forward and say, well, he probably was trying to make sure

3 that he didn't get indicted before the International Criminal Tribunal for

4 the Former Yugoslavia. Hardly. I don't think so.

5 Why is that important? It's important, Your Honours, because if

6 Colonel Jankovic doesn't know, and he's right there in the thick of things

7 he's right at the Bratunac Brigade, how can we then say with any degree of

8 certainty, certainty beyond a reasonable doubt, that Colonel Blagojevic

9 knew about it, that he knew the fate of the men? I think that speaks

10 volumes.

11 Now, let's split the screen a little bit, because I think it's

12 important. We really are not going to know ever probably all the facts,

13 but we have enough and I think here's where we agree with the Prosecution

14 that right around that time when Jankovic is in the Bratunac Brigade

15 writing his report to the Drina Corps intelligence, over here at the SDS

16 office, downtown Bratunac, there is a drunken Beara with a whiskey bottle

17 calling on Deronjic, the newly appointed commissioner of Srebrenica, who

18 is supposed to be in charge and to protect all these people and he says:

19 I'm here to kill them. So you have those two events playing out at the

20 same time. We don't have any evidence of Colonel Blagojevic ever being

21 with Colonel Beara.

22 My -- so what I'm trying suggest is this: Could it be that one

23 plausible and reasonable explanation is that Beara is on a mission of his

24 own, has nothing to do with Blagojevic. What Nikolic says is unclear

25 because Deronjic says he wasn't there, Nikolic says he was, Nikolic is all

Page 12475

1 over the place. And mind you, that there is also -- we also have some

2 testimony in the afternoon or evening of the 13th where Mr. Celanovic,

3 that lawyer -- you would ask a short question, we would get two pages of

4 an answer, what he said. And he told us quite clearly that he took a walk

5 in the early evening and he asked Beara: Why are these people here? He

6 says: Well, as soon as we make some arrangements, or there wasn't enough

7 buses, but there is an explanation right in his testimony, and he thought

8 that that was plausible. There was no reason to think that any harm would

9 come to these people.

10 Now, I want to focus on this 13th because I think in my opinion -

11 and I can't prove it beyond a shadow of a doubt, to use Mr. McCloskey's

12 term yesterday, nor do I have to - nor do I have to, but I think if we

13 look at all of what is going on that -- and when you factor in that we

14 don't have any evidence, contrary to what the Prosecution is saying about

15 killings on the 12th in Bratunac save for I think one or two witnesses, it

16 would appear the 50 bodies or so that are found on the 14th or thereafter

17 by the civilian protection, that must have occurred, in my opinion, late

18 evening on the 13th going into the 14th.

19 Also, we have the incident in Kravica in the afternoon. And here

20 is another, I would say disconcerning [sic] incident in the final brief.

21 There's witness 106 and 107, P106 and P107. And they give two different

22 versions. They're not that far apart. Yesterday Mr. McCloskey touched on

23 one, but he didn't quite, in my view, give the full picture. It would

24 appear that one witness, 106, is under the impression that all of this

25 happened at one time. But P107 - and this part was omitted in their

Page 12476

1 brief, this part - he says that there was an incident early on in the

2 afternoon, there's a lull, and then as it's getting dark - mind you, it's

3 June -- or July 13th - so he says around 8.30, 9.00, he thinks that's when

4 the incident happened. So we have two.

5 Now, if we go backwards we have the testimony, we brought somebody

6 who had nothing to do with the Bratunac Brigade, didn't know Colonel

7 Blagojevic, had no reason to try to protect him or to save him or to

8 assist him. In fact, he came here unprotected and put his face right in

9 front of the cameras and said: I was there at the time in the vicinity -

10 Mr. Stupar - and he said: I heard over the radio that there was an

11 incident, and I rushed over there and he took one individual and he took

12 him to the hospital and he heard about what had happened, about how one

13 Muslim had tried to take a gun away from one of the Serb MUP, he was

14 killed, and there was some killings going on out of a reaction. We really

15 don't know.

16 If you take that incident, it fits a little bit with what 107 is

17 saying, that there was an incident and there was a second incident, and

18 that's the one where everything happened.

19 Also what's fascinating is the Prosecution came across evidence

20 through Mr. Vasic that according to Vasic he was informed by Mr. Kovac,

21 both of whom by the way they had an opportunity to question, and I dare

22 say could have brought here if they wanted to, and there's a reason why I

23 think they should have and I'll explain why, but according to Mr. Kovac he

24 says that on the afternoon of the 13th he's driving when all of a sudden

25 he's pulled over, he's taken over to Vlasenica, and there he goes into the

Page 12477

1 headquarters and there is General Mladic. And as we all know, General

2 Mladic had a thing about MUP, apparently he didn't like them too much. So

3 he began to sort of verbally abuse them, and at some point the phone rang,

4 and that's when he overheard colonel -- I mean General Mladic yelling:

5 Kill them all, kill them all. And he says it's around 5.00 or so.

6 So the timing, it would appear, that he's getting the news as to

7 what happened in Kravica. Prior to that incident, we know that he stopped

8 and spoke to some people in Sandici meadow where he told them you're going

9 to go off, and I believe there were words to the effect of don't do

10 anything stupid.

11 It would appear that this was an over-reaction, that this was an

12 over-reaction where Mladic is over-reacting over the phone, maybe he had a

13 few beers, and probably nobody should have taken him seriously, and

14 obviously somebody did and that was Beara. And all of a sudden things are

15 happening.

16 Now, the Prosecution tells us that there were incidents that

17 happened before that. We don't know the exact timing because some of the

18 witnesses obviously can't tell us with any degree of precision, and we

19 don't have any independent evidence to verify it. But it could be the

20 13th, the exact timing we don't know. But certainly there's no linkage.

21 There's no linkage between those incidents and the Bratunac Brigade.

22 There's no linkage between those incidents and Colonel Blagojevic. I

23 think that's important. And again, I want to focus us and get us all into

24 that straightjacket called the indictment.

25 I'm speaking in more broader terms because I want to put this

Page 12478

1 matter in the perspective which I believe as the Defence for Colonel

2 Blagojevic should be in. This is the perspective that this was not a

3 planned genocide. There was no plan on the 11th or 12th, as the

4 Prosecutor has indicated in the -- in their -- in the indictment, modified

5 somewhat yesterday. And we can quibble, but you guys have the -- Your

6 Honours have the transcript, and I trust the transcript is better than my

7 memory. But I believe that the trip wire for all those killings is Mladic

8 getting upset and not having the special intent to create genocide.

9 That's my belief. I put it in my brief. I think that this was what

10 happened afterwards, and I think we have been very straight from the

11 beginning. We don't agree with it, we don't like it, we tried to expose

12 it as much as we could. We think it was a horrendous experience for

13 everybody and our heart goes out to the victims, but it doesn't mean at

14 the end of the day we try to find somebody to pin it on because there's

15 nobody else to pin it on, or because that one person happened to be in the

16 area and circumstantially it would appear, if we look at nothing else,

17 that he had to be in the vortex of hatred and therefore was engaged in all

18 these other activities.

19 Again, I go back because yesterday I was troubled, very troubled,

20 by the Prosecutor insinuating that you had Mladic, Krstic, Blagojevic. My

21 heart went out when I heard that. It was like where did that come from?

22 Where is the evidence? And then he says, Beara, oh, couldn't hold a

23 candle to him. Okay. I just -- where do they come up with this evidence?

24 That's the whole problem. We have Beara in the thick of things. But what

25 do they do? How do they try to connect Colonel Blagojevic?

Page 12479

1 Well, I'll fast forward a little bit. I believe it's the 15th.

2 Please forgive me if it's the 14th or 15th, I don't know exactly the date,

3 but it's the intercept where -- I believe it's the 14th. Whatever.

4 Zivanovic is mentioning Blagojevic and then Beara or Krstic is

5 mentioning Blagojevic, but let me ask you, Your Honours, did you hear any

6 evidence, any evidence, of any intercept with Colonel Blagojevic? Did you

7 hear any evidence where he sent anybody to do any killings? Did you hear

8 any evidence where there was any meetings? You hear somebody saying:

9 Call Blagojevic. Maybe you can use his Red Berets. Is that evidence

10 beyond a reasonable doubt? Are you willing to send somebody to

11 essentially die in prison based on that information? Well -- and it's the

12 15th I'm told.

13 But -- see, they have nothing. They're saying, well, he must have

14 been a player because he's at - what as it? - the tip of the tongue.

15 Well, I hope I'm at nobody's tip of the tongue because it means they can

16 just invoke your name, and all of a sudden you can be in some joint

17 criminal enterprise. Imagine that: Somebody uses your name and all of a

18 sudden you're in the vortex of this joint criminal enterprise.

19 Well, that's pretty scary, especially when there's no other

20 evidence. And remember, Your Honours, it was on this sort of evidence

21 that they were able to convince the Krstic Trial Chamber that the members

22 of the Bratunac Brigade were in the killing fields of Konjevic Polje -- of

23 Branjevo Farm. So I beg you, do not, do not rush into anything and look

24 very carefully at the evidence.

25 What do we know about these prisoners back then. First of all, we

Page 12480

1 had Butler on the stand. And you have to hand it to him, he was on there

2 for 11 or 12 days. I don't know how he did it. I asked him concretely:

3 Whose prisoners were they? He wouldn't tell us. I think that's

4 important. He couldn't tell because he didn't know and that was an honest

5 answer. But what does the Prosecution do? They see this map of 1992 and

6 this -- and it has its -- it is multi-coloured, kind of nice, and it's the

7 zone of responsibility of the Bratunac Brigade. So their heart must have

8 just, you know, exploded when they saw that. Well, we know that -- you

9 see Zivanovic's name, he's not a general at the time. We know that -- I

10 believe it's the Milici Brigade hasn't been formed -- the Skelani Brigade

11 hasn't been formed. And you have Srebrenica right in the middle of the

12 it. And there was that funny moment at the end. You know, we're trying

13 to find a way -- I was trying, like, when can we stop using this map. I

14 was getting tired of it. Finally it was with Mr. Karremans. And we said,

15 okay, draw me the map. Look at this map and put me -- put the borders of

16 where the -- the enclave was. You remember. He was reticent because

17 there was always this dispute, where the borders are, and he thought I was

18 trying to trick him. I said, no, just in general. There was another

19 reason. And it would have been physically impossible under the

20 circumstances, especially with everything changing from 1992 and 1995 to

21 say that this was the zone of responsibility of the Bratunac Brigade.

22 But what is it? It's a geographical region. And it fit their

23 theory, but their theory shifted. Remember, we had Butler on the stand

24 and Butler says, Oh yes, you can have different units sharing the same

25 zone of responsibility. Okay. Where is that in the rules? It's not in

Page 12481

1 there. Speaking of rules, remember that lovely exchange I think it was on

2 day eight, third day of cross-examination, and it was first in the morning

3 and I pulled out two questions and answers of his testimony. The

4 questions were very direct. Do the rules call for a zone of

5 responsibility for brigades? A very simple question; long answer. Same

6 question; long answer. And so what did I do? I went home and I tried to

7 read this. I couldn't figure out what it meant. I must tell you, a light

8 dawned on me. I said, well, okay, why don't I take that answer and put

9 numbers on the various words and maybe he can explain to us what those

10 words mean so we can actually see the essence. And what I wanted to do

11 was provide you with a tool to see that he may speak well and he may sound

12 good but you've got to be careful because at the end of the day, as I said

13 back then, it was gobbledegook. He didn't answer the question. Is it in

14 the rules. It calls for a yes or a no. You can say yes and explain; you

15 can say no and explain, but you had a long answer and there was nothing in

16 it. And I ask you: Why? Well, we know the answer. Part of the answer

17 is: It doesn't fit in their theory of the case because the brigade rules

18 are very clear. Brigades have zones of defence. Zones of defence. The

19 only ones that have a zone of responsibility is the intelligence organ and

20 that's for a different reason. But the brigade itself, the battalions,

21 have a zone of defence and it's a line and we saw it and it's there and it

22 has -- you have so many yards in front or metres in front, and so many

23 behind, and that's what you're supposed to guard. It's not a geographical

24 region. But Mr. Butler didn't want to give it up. And again, why? Well,

25 of course it didn't fit their theory. But you got to -- you could ask

Page 12482

1 yourself, well, wait a minute. This guy is a military analyst. He was

2 supposed to be independent. Well, he told us he was not. Remember that?

3 That was day two, I believe. Because he said that occasionally he goes

4 out in the field to assist on military matters. You know, he's there,

5 sort of the military encyclopedia on hand, you know, to help out. And

6 what did he do when he's out in the field? He's actually interrogating

7 witnesses. Sometime playing Mutt; sometimes playing Jeff. Sometime

8 playing good guy; sometimes playing bad guy. And we brought it out on day

9 two, it was an evening, I vividly recall. But -- and then he said: I'm

10 not independent. And what else did I show? I showed the portion from the

11 Krstic trial when the Honourable Judge Wald was, in my opinion, a little

12 bit upset with him because she was able to -- she pointed out a part of

13 what had been going on in the OTP with respect to a particular video where

14 there was some decisions being made whether to put that information in the

15 report or not. If it was in the report, of course, it becomes

16 disclosable; they have to disclose it to the Defence. And of course the

17 theory of the Prosecution back then was: We should hold that for

18 rebuttal.

19 So, here is this independent analyst. Now, what did he say? He

20 said: That wasn't really important. Why would I put that in my report?

21 Once I decided not to put it in a report I sat back and watched this

22 wonderful intellectual argument. Well, it sounds good. But, what was on

23 the tape? On the tape was supposedly General Krstic saying: Kill them.

24 That's pretty important. And the dates were not -- were within the range

25 of the indictment. So it's not something that's way a year later or six

Page 12483

1 months or a month, it's right in the period. So how could you actually

2 sit here and say with a straight face: It wasn't important to put in the

3 report?

4 Mr. Butler, I dare say, was a Prosecution employee who took the

5 stand as a Prosecution employee who has a vested interest in the outcome

6 of this case, and that's why if you go through the -- if you go through my

7 questioning of him and you go through his answers you see that he's not

8 being very direct. He was slightly evasive. It was sort of the cat and

9 the mouse. It was exhausting for me to try to pin him down because he

10 knows the material and obviously he has a tremendous amount of stamina and

11 he could lose me in all those documents. But I think if you look at it,

12 and I ask you to, you will see that he's not very forthcoming in telling

13 us exactly and answering the questions forthrightly. And this is the same

14 individual, as I indicated, that had -- that on occasion -- there was one

15 occasion where I told him -- I accused him of backsliding where he had

16 given a good answer for the Defence and then once he realised where I was

17 going he was sliding backwards, and that had to do with the functional

18 relationship. Mr. Butler spent, I don't know, five or six years on this

19 case. Obviously he's friends with these folks, he's got a lot vested.

20 You lose objectivity at some point. It's not that he's a bad

21 person. Nobody's bad over here. In fact, the world is a better place

22 because of the Office of the Prosecution, these folks over here -- and I

23 mean that because it is a difficult job doing what they're doing. But you

24 can't do it so long and not lose some objectively, and that's what I'm

25 saying. And unfortunately for Mr. Butler, he lost a whole lot of

Page 12484

1 objectivity because he was just telling it the way he wanted to tell it.

2 And again, I want to bring you back to one exchange and that had to do

3 with the 12th, going back with Nikolic who was the coordinator on the 12th

4 of -- in Potocari, where he said he saw all these units. And I asked

5 Mr. Butler: Were those units there? And he said: Well, I tell you,

6 after all those years of being in the case I had no evidence to suggest

7 that they were there. And so then I asked him -- I think I dropped it

8 because that's my habit. Usually I drop it and I pick it up around the

9 bend.

10 So I dropped it and went back. I said, you know, I've got to ask

11 you, you know, because there was another issue that I wanted to clear up:

12 Did you put that in your report because you had amended your report? Oh,

13 no. Well, why not? Wasn't important. But why wasn't it important.

14 Well, I knew you would ask me. Well, clairvoyant of him, he know what I

15 was going to ask him. Well, what if I didn't ask him? You wouldn't have

16 that information. Then I pointed out that at least during the Nikolic

17 hearing Mr. McCloskey said now we know with clarity, we know beyond a

18 shadow of a doubt. It's in the transcript.

19 The whole point is if you know it, and it's exculpatory and it

20 helps the Defence, why not just share it. Why? Because it might assist

21 you in using the circumstantial evidence to see if there's another

22 plausible and reasonable explanation. That's why. And I'm entitled to

23 that, Colonel Blagojevic is entitled to that, we're entitled to all of

24 that information. And we're suggesting that at least on some occasions

25 Mr. Butler failed us. So, I threw that out. And so -- and I also suggest

Page 12485

1 that these -- these sort of little vignettes demonstrate, at least to me,

2 that when you read what he says, and please, whatever you do, check the

3 footnotes, double-check them. But when you read what he has to say, you

4 have to sort of take it with a grain of salt, not a tonne like Momir

5 Nikolic, but a grain of salt. And you really have to because he makes,

6 and I think this was commented on by the Appeals Chamber or the Trial

7 Chamber, they talked about how he concocts these -- and he creates these

8 inferences, he builds inference upon inference upon inference in order to

9 figure out what's going on. And his main thing was to look at the

10 evidence and say, well, see, people are reporting, people are filing

11 reports, therefore the chain of command is working, circumstantial

12 evidence. Well, we pointed out instances where those reports were not

13 accurate. We pointed out instances where reports are going out from the

14 Bratunac Brigade with Colonel Blagojevic's name that he's never seen, such

15 as, for instance, on the 10th, the 10th of July when the Workers'

16 Battalions are being asked to go up to Pribicevac and we had one witness

17 come over here. I believe it was Tesic, Aco is his nickname, Aleksandar

18 is his first. He came and he said: I got this order. And I turned him

19 over to Krstic. Who signed the order? Well, the order wasn't signed by

20 Colonel Blagojevic; it was signed in the -- it was signed in Bratunac, on

21 the 10th. We know that Colonel Blagojevic was up in Pribicevac. But all

22 of a sudden here are some men being mobilised and turned over to

23 General Krstic without Colonel Blagojevic's knowledge.

24 Speaking of knowledge, it's amazing, you know, it's difficult to

25 really just stop at one thing because this whole case is so big. I don't

Page 12486

1 know how the Prosecution did it in half a day yesterday. I commend them.

2 But speaking of knowledge, we want to talk about what did the Bratunac

3 Brigade commander know and how do we know what he knew? It's pretty

4 difficult. We have to look at -- we have to look at the events. We have

5 to look and see what's happening. And I think if we look and see what's

6 going on in Pribicevac from 6 to 11, we get a certain picture, and the

7 picture is that he's really not included in anything. Mladic comes and

8 Colonel Blagojevic wants to avoid him so he goes into the woods. Then he

9 hears he's got to go on -- there's -- a scheduled meeting is in

10 Srebrenica, so he walks down there. Yesterday, the Prosecution: Well,

11 maybe he met him, maybe he didn't. He's not on the video. It's as if, if

12 we don't have the evidence, it must be true.

13 Well -- but what do you see? You see someone who is really not a

14 player, so to speak in the vernacular. He's really a man of no

15 importance, just like Nikolic, although Nikolic wants to be a man of

16 importance, hence why he's a guest at the UN Detention Unit. But you

17 don't see anybody reporting to Colonel Blagojevic. You don't see Nikolic

18 writing any reports to him. You don't see him being invited to any

19 meetings. Remember, there was a meeting in the Bratunac Brigade on the

20 morning of the 12th. Who was called over there? Members of the

21 government. Was Colonel Blagojevic called? No. There was a meeting on

22 the 12th at the Hotel Fontana. Was Colonel Blagojevic called? No. Was

23 he consulted? No. Well, one or two of his buses were used, Trisic was

24 contacted. But we had that functional relationship. Trisic was very

25 clear: I didn't contact Colonel Blagojevic. He didn't have to because

Page 12487

1 what was being asked was not really anything nefarious, number one, and

2 number two, it was not stripping the Bratunac Brigade of its resources as

3 Mr. Butler would have us believe, at least with the fuel. Because that's

4 what Mr. Butler looked at. And if you just look at the receipts, you

5 might come to that conclusion, hence the dangers of circumstantial

6 evidence.

7 But nobody's reporting. What is Colonel Blagojevic doing? Let's

8 get to that answer -- question. Well, remember we've had -- there is this

9 event to capture Srebrenica. Srebrenica falls on the 11th.

10 Colonel Blagojevic is at no commander meetings, nobody sees him. We know,

11 at least from one of the witnesses, that he hitchhikes a ride back to

12 Bratunac sometime at night, the night of the 11th. On the 12th he's out

13 there visiting his troops. What should a commander do?

14 Now, the Prosecutor would have you believe that he's out there in

15 order to use his troops in order to push the column in order to capture

16 and kill them. That's how I read what they're saying. First of all,

17 let's be fair. This column did not have a thousand armed men, as I

18 believe it's pointed out somewhere in their brief; it was more like 5 or

19 6.000. Number one. Number two, it was an army on the run; they were on

20 the go. Nobody knew exactly where it was going, but it was in RS-held

21 territory. They were heading -- we know now that they were heading

22 towards Zvornik. On the other side you had the 2nd Corps and they're

23 trying to link up, with Zvornik being right on the edge. Butler says on

24 the stand, morning of the 12th the commanders think that the 28th

25 Division, because Karremans didn't know where they were, were probably

Page 12488

1 held up in the Bandera triangle. Remember? That was a triangle where the

2 DutchBat were held prisoners by the 28th Division. That was forbidden

3 land for the DutchBat because that's where all the smuggling of the

4 weapons were coming in. It turned out everybody was wrong. But according

5 to Butler on the morning of the 12th, that's where they think. Now we do

6 have a Zvornik Brigade -- in the Zvornik area by the fourth -- where the

7 4th Battalion of the Bratunac Brigade is located we have a sighting and it

8 appears, they can correct me if I'm wrong, it's somewhere around 5.00 or

9 6.00 in the morning, somewhere around there, that Major Obrenovic at the

10 time learns about it. Even there at that point in time nobody really --

11 at least at that area, nobody knew the significance, the importance. But

12 we do know one thing: They left the Bratunac area. Because you have the

13 Bratunac Brigade on one side, the Milici Brigade on the other. And they

14 left -- and we have testimony -- we brought the commanders, we brought the

15 commanders here and what do they all say? There was no battle activity,

16 they went about their business.

17 First of all, the terrain itself, there -- it was a natural buffer

18 zone, and there was no need for them to engage because once they saw the

19 size, there weren't about to engage them. They let them pass. But the

20 searching of the terrain, even Butler admits that this is a proper

21 military activity, nothing nefarious about it. There was no such thing as

22 trying to chase out and hunt down and kill.

23 And also, who can forget those lovely witnesses that we brought in

24 from the 2nd Battalion, was it the 1st Company I believe -- 2nd Company,

25 and they told us about having to go to Budak. A lot of facts, it's tough

Page 12489

1 to remember all of it. But he's going to Budak and the one guy says, you

2 know, you see him in a photograph, he has his rifle and as I indicated

3 sort of like the kid that's running away from home. He's holding it on

4 his shoulder with a little food bag on the end, and what does he say? I'm

5 told that I'm going on an informational walk with my friends. The guy's

6 about 60 years old. Lovely guy. And what does he do? He says, you know,

7 I walk over, I see some friends, I see the Muslim population. Then I head

8 up to the hills, it was like a hike. And then once I got there I was told

9 to go home. How did you search the terrain? Everybody was asked that

10 question. Right? In single file on the asphalt road searching the

11 terrain. And I believe, Mr. President, you even asked that question of

12 one or two witnesses. What does that tell us? What does that tell us?

13 First of all, they didn't even know how to search the terrain even if they

14 wanted to and they had to. Second of all, they really didn't have any

15 orders to go out there and chase and sort of herd any stragglers, or

16 capture and kill. Then we heard testimony that half the time they weren't

17 even carrying out these orders. That's the extent of the Bratunac Brigade

18 and the commander was out there at least trying to make sure that nobody

19 would come into harm's way. And isn't that what you want a commander to

20 do, to check up after battle just to make sure your men are okay. And

21 remember it was the commander of the 3rd Battalion, Mr. Zekic, he said

22 that he had some problems with his men because his men were from the

23 Srebrenica area and they had been looking at their town for the last two

24 or three years and they were dying to get -- to go visit their homes and

25 he had a hard time keeping them back and his commander told them: Just

Page 12490

1 stay, just hold -- hold put. And any searching orders that they got were

2 incremental, and that was confirmed by the Prosecution's own witness,

3 (redacted) I get the B's and the D's

4 mixed occasionally. But (redacted) indicated that he had been given

5 some orders to move slightly ahead, which he did. And then, as

6 Mr. McCloskey pointed out the following day, I think it was, that there

7 had to be this pep talk between -- with General Mladic in order to

8 motivate the men. We know that on the 14th -- the 13th by the way, we

9 also see -- we have witnesses that said that Colonel Blagojevic again went

10 to the terrain, visited some of his folks, visited his ill mother. And

11 anybody who lives in that part of the world knows that it's not like,

12 Hello mom, I hope you're okay, and then you leave. That's not how it's

13 done. But he goes and visits his mother who lives nearby. But he's

14 basically checking up on his men. And also he has orders to put together

15 some men to go off towards Milici, and he's going to send his Chief of

16 Staff Novica Pajic to do that. On the 14th he gets orders to search the

17 terrain and he marks where they should search, what they should do.

18 We had Mr. Gavric who came and he was the gentleman who had to be

19 sent to Zvornik. Remember that the Zvornik Brigade by this point in time

20 was in trouble because all of a sudden they realised they couldn't handle

21 what was happening with all -- the column coming their way plus all the

22 other activity that they were involved in that they shouldn't have been

23 involved in. But in any event Colonel Blagojevic was ordered to send some

24 men. And what did Mr. Gavric say? Because remember he's the guy with the

25 rocket platoon or whatever the name of the platoon is. But he says: My

Page 12491

1 men are not soldiers in the field. We don't walk in the field and carry

2 guns. We're sort of correct and shoot. And now I'm getting orders to go

3 to the Zvornik Brigade to go to some territory I don't know, my men are

4 not equipped. But the commander says: Go there and I'll bring you right

5 back.

6 Stop and think about that for a second. The commander has an

7 obligation to send some men so he does that and he tells them: I'm going

8 to get somebody else. I just need to send you over there. They go there,

9 they report on the night of the 14th, and they come back on the 15th and

10 he says nothing happened. The next day there was another group. And you

11 heard Zoran Kovacevic talk about somewhat of a horrifying experience that

12 he had, that because they got lost, one person was lost because the size

13 of his boots were too big, and they lost him and for two days they were

14 out there not knowing what would happen, but they don't engage the enemy.

15 They certainly don't get involved in any killings. But what am I trying

16 to show here? That Colonel Blagojevic is acting according to orders that

17 are proper and normal. You don't hear him on any intercepts.

18 Now, the Prosecution says that he's working in the shadows. Okay.

19 What does that mean? Well, to me it means that if there's no evidence on

20 you it must mean you have a guilty mind and you have been acting guiltily,

21 but because you know that somebody's watching so you're covering your

22 tracks. That's what they're saying. We don't have the evidence, so he

23 must be guilty. If we had the evidence we would show you, or since we

24 can't show you, we want you to infer that. Where is the evidence? It's

25 not there.

Page 12492

1 On the 15th, we have that piece of evidence -- oh, Your Honours,

2 it's 1.30. I can keep going, but I think we need that little break.

3 Now if I can squeeze an extra half hour this afternoon, I would

4 appreciate it.


6 MR. McCLOSKEY: Your Honour, I object to any change of the rules

7 at this point. I think everyone knows the rules, and I think we should

8 stick by them, so he gets the full amount of time that you designated

9 earlier..

10 MR. KARNAVAS: Obviously my generosity of allowing him 50 more

11 pages on his final brief is not being returned.

12 JUDGE LIU: Let's discuss this matter when you resume in the

13 afternoon. We will resume at 3.00.

14 --- Luncheon recess taken at 1.32 p.m.

15 --- On resuming at 3.00 p.m.

16 JUDGE LIU: Well, before resume could I ask a question to

17 Mr. Stojanovic.

18 Mr. Stojanovic, how long do you think your cross-argument will

19 last?

20 MR. STOJANOVIC: [Interpretation] Your Honours, we have so far

21 written about 50 pages of our closing argument. While I was rehearsing,

22 the average was about four minutes a page, which would amount to about 200

23 minutes that we would like to use up tomorrow for our closing argument. I

24 think that amounts to three hours or just over three hours. I think that

25 would be sufficient time for us in view of the arguments put forward by

Page 12493

1 the OTP yesterday. That would be suffice for us to say to present our

2 position without repeating any of the things that we have already

3 submitted in your final brief.

4 JUDGE LIU: Thank you very much, Mr. Stojanovic. Here's a

5 question for you: Would you please lend 30 minutes to your colleague,

6 Mr. Karnavas, for him to finish his closing argument today?

7 MR. STOJANOVIC: [Interpretation] Yes, Your Honours. I have

8 already informed the registrar prior to our continuation today, our

9 Defence will gladly give those 30 minutes over to Mr. Karnavas.

10 JUDGE LIU: Thank you very much for your cooperation.

11 Well, I believe that Mr. Karnavas should finish his closing

12 argument today, that is within one and a half hours. And frankly

13 speaking, Mr. Karnavas, I believe that your closing argument could be more

14 concise and sometimes I found that you just got carried away by your

15 thought or your strategy, and there are some unnecessary remarks or even

16 personal attacks to the other party which I don't believe is necessary.

17 As for tomorrow, tomorrow morning I believe that we could finish

18 the closing argument by Mr. Stojanovic. And in the afternoon we will have

19 the rebuttal and the rejoinder session. I understand that the Prosecution

20 has two accused to deal with, so we'll give the Prosecution extra 15

21 minutes to deal with the two closing arguments. Then each party will have

22 30 minutes for the rejoinder. I believe that the scope of the rejoinder

23 should be within the scope of the rebuttal, which means that that is not

24 an opportunity for the parties to re-present their case.

25 Yes, Mr. Karnavas.

Page 12494

1 MR. KARNAVAS: Thank you, Mr. President. We want to thank the

2 Jokic team for their generosity and I'll proceed.

3 I want to go back to the 12th and the 13th and -- of July. And if

4 it seems that I'm attacking the Prosecution, it is that I am attacking

5 their case because it would appear that there are other reasonable and

6 plausible explanations that we need to look at based on the evidence. And

7 so I don't think it's appropriate for us to place a blind eye to the

8 microscope when we look at the evidence.

9 Now, on the -- we -- I talked a little bit on the 12th of July and

10 I spoke about what Colonel Blagojevic was doing on that particular day.

11 We heard testimony that on the evening he came back from the field and

12 that he had someone from the brigade that was with him to go check on the

13 prisoners that were being held at the school, at the gymnasium, I believe.

14 And that he had given that individual specific instructions, that is, to

15 talk to the MPs that were there to make sure that they would conduct

16 themselves appropriately. The Prosecution has dismissed that witness

17 outright as not being truthful as to that part, although they like the

18 rest of the part that is Colonel Blagojevic speaking to the witness.

19 Again, the bipolarity of the way they look at Defence witnesses. When

20 they like something, he's credible; when they don't like something because

21 it's exculpatory, the evidence cuts against Blagojevic.

22 Now, we have another witness that goes and visits them on

23 the 13th. And again the question that I think has never been answered by

24 the Prosecutor, because it's their duty not ours, how did the prisoners

25 get there and who transferred the prisoners there, who was responsible for

Page 12495

1 those prisoners? They make this general accusation that everything in the

2 town of Bratunac is run by Blagojevic. That's what they did yesterday.

3 That he was about the civilian government in a sense, if you look at their

4 argument quite carefully, although there's nothing there to suggest that.

5 We don't know exactly who sent them there, but it would appear from this

6 one witness that was brought in by the Prosecution that

7 obviously Mr. Blagojevic learned of it, learned that some of the MPs were

8 guarding them. And you have to remember what the function of the MPs are.

9 What are their functions?

10 Yesterday the Prosecution insinuated that because some of them

11 were guarding -- were on the entourage of General Mladic they knew about

12 the forcible transfer and they automatically knew also about this

13 genocidal plan which was on the 11th, 12th, or 13th. That's what was the

14 gist of it. So we don't know. But it would appear that at least upon

15 learning that his men are guarding some prisoners, and that -- you would

16 seem -- that would seem somewhat innocuous because it comes within their

17 domain that he did the appropriate thing.

18 The next morning we have a witness who said that he went to check

19 up on the men -- on the prisoners over there to see if any of them needed

20 any medicine. We know that he wasn't a doctor, he was more like a medic.

21 He carried some pills. Again, the Prosecution would have you believe that

22 that elderly gentleman that came here was nothing but an apologist or

23 someone who was simply here because he wanted to be kind to Colonel

24 Blagojevic and obviously was untruthful. Imagine all these people coming

25 from Bratunac just to be untruthful; that's what the Prosecution is

Page 12496

1 insinuating. We, on the other hand, suggest that this gentleman who had

2 nothing to gain by coming here was speaking the truth, and it would appear

3 again that Colonel Blagojevic was trying to do the decent thing to make

4 sure that, you know, nothing was awry, nothing was going bad, happening

5 over there.

6 Again it fits in what we believe is the evidence. Because we

7 believe that nothing really happens until it's the evening of the 13th

8 going into the 14th. Although in the afternoon of the 13th it would

9 appear that you have all these special units that are doing all sorts of

10 things in and around Potocari and elsewhere. Under whose command they

11 are, nobody knows. Whether they are Drina Corps, Main Staff, MUP, they

12 have different uniforms. We heard from Mr. Celanovic. He told us about

13 what he was able to observe. So it's rather unclear.

14 Now, the Prosecutor in their brief -- and I don't mean to be

15 attacking them but again I have to bring it to the Court's attention, they

16 would have us believe that the first bus went to Orahovac on the night of

17 the 13th. So what they're trying to imply there is that the killing

18 operation began on the evening of the 13th to Orahovac, therefore we can

19 impute some sort of knowledge to Colonel Blagojevic.

20 I would suggest because I don't have much time that you look at

21 paragraphs 256 and 263. And if we look then at the testimony of the one

22 witness, it's on page 1.277, and then another transcript of 6.741 to

23 6.746, we see that in essence nobody arrived in Orahovac on the night of

24 the 13th, as they would have us believe, but rather it was the morning.

25 At worse, you have two conflicting pieces of evidence that you

Page 12497

1 have to look at, but it certainly doesn't comport with what the

2 Prosecution would have us believe. Again, what I'm suggesting -- and it's

3 not an attack on the Prosecution but there's another reasonable

4 alternative explanation that I think we should not put our blind eye to

5 the microscope in looking at it.

6 Now, the night of the 13th we know that there were members of the

7 Bratunac Brigade military police that were there guarding the buses. We

8 know that Bratunac was full of people -- full of prisoners. Who was

9 bringing them in it's rather unclear. Again, it's not our job to prove

10 it. It's their job. They've had eight years. They've had the resources.

11 They're able to go back and forth and find these things out. Keep in mind

12 that we brought the witnesses here. Well, they want to imply that somehow

13 the Bratunac Brigade military police were engaged in all this nefarious

14 activities. My question is: Why didn't they bring them here? Why didn't

15 they question them? They were there, they were open. And as you recall,

16 I asked each and every one of them: Were you hiding someplace, were you

17 available if they wanted to question you, to ask you what you were doing.

18 So they were there.

19 And why did they come here? Because they had nothing to hide.

20 Now, you've been to Bratunac; it's a small place. It's easy to say today,

21 well, it's impossible not to have known, because that's what the

22 Prosecution's case is all about. They have no concrete evidence. It's

23 impossible not to have known. Everybody in town knew.

24 They wanted to bring in one witness, P30, who committed perjury

25 when he testified the first time. To come in to admit to committing

Page 12498

1 perjury and also to say all these other killings were going on in the

2 stadium.

3 Again, I suggest that even though the town was rather small, you

4 had all these buses, you had all these prisoners, it's hard to say today

5 looking back exactly what those people knew at that particular time. And

6 to say that those people knew for sure that they were going to be killed

7 or at least Colonel Blagojevic knew they were going to be killed. And

8 again I focus you back to Colonel Jankovic. If he didn't know how is it

9 that Blagojevic would know and where is the evidence? That's what I'm

10 focusing on. Where is the evidence that the Prosecution should show us

11 something other than to say we know they were killed later on, therefore

12 they must have had knowledge.

13 On the morning of the 14th we know that Popovic of the Drina Corps

14 orders I believe it's witness 138 and Mr. Petrovic to lead sort of the

15 convoy. Now, who is Popovic? He is security of the Drina Corps. Is

16 there any evidence, any evidence at all, that he had sought the permission

17 of Colonel Blagojevic to issue that order? No. But we do know that there

18 is a close link, a close association, between Popovic and Nikolic. We do

19 know even from Your Honour's last question that the military police were

20 taking their orders from Nikolic and they were responding to him, it would

21 appear, which is why Colonel Blagojevic had to ask Nikolic to come up to

22 Trnovo, I believe, to issue an order to his men, because they were

23 responding to him, because Nikolic behaved as if the military police were

24 his troops to do as he pleased.

25 Now, yesterday I was a little troubled. I didn't object because I

Page 12499

1 didn't think that it would be appropriate, although in hindsight I should

2 have. But the Prosecutor accused the Defence of somehow saying that the

3 troops were being stolen. Now, I don't know where they came up with that

4 idea. We have never said that anybody was stealing any troops. We've

5 never said that Beara was stealing troops from the Bratunac Brigade. They

6 would have you believe that because then it doesn't fit in with the

7 functional relationship and then you also see these intercepts. And again

8 that was covered by Mr. Butler who said: You see, Beara is calling Krstic

9 to use so-and-so's men, therefore he just -- he's not reaching out to the

10 troops. There is an exchange between myself and Mr. Butler, and we agree

11 on that, because there is no functional relationship. And there lies the

12 difference.

13 The military police, even though they are an asset of the brigade

14 commander -- and we've never shied away from that. We've never said

15 anything other than that. We in fact go by the rules. Even though they

16 are an asset of the brigade commander they do take their orders, it would

17 appear, on a day-to-day basis from the security organ. Here in the

18 Bratunac Brigade you had one individual who wore both hats, security and

19 intelligence, who was rather imposing in some ways, who had been around.

20 And as I've indicated and as the evidence shows, was more or less a

21 self-manager. So who is to tell whether on the morning of the 14th

22 Nikolic, without getting permission from Colonel Blagojevic, agreed with

23 Popovic to have the men escort this convoy up towards Orahovac. Is there

24 any evidence that Popovic or Beara or Nikolic consulted with Colonel

25 Blagojevic? There's zero. Whose responsibility is it to prove that? Not

Page 12500

1 the Defence -- at least not in this system.

2 Now, where is Orahovac? And I think that's something that you

3 need to appreciate. Orahovac is on its way towards Zvornik where you

4 would have the line to cross over the border. The Prosecution would have

5 you believe because we now know that there were killings in Orahovac that

6 they all knew in advance that they were going there in order to kill all

7 those folks. In hindsight you may say, yeah, fine, because we know the

8 killings, so therefore you somehow can make that connection. There's no

9 evidence but that's what they say. And I'm looking for the evidence.

10 What about another plausible and reasonable explanation. Could it

11 be that they had no reason to believe that these people, these prisoners,

12 were going to be killed? Could it be that they believed that they were

13 going to be exchanged because that would be the appropriate place for them

14 to be exchanged or could it be that they thought that they were on their

15 way to Bijeljina where there was a prison. Bijeljina is about 20

16 kilometres if you keep going, so it's in the same direction.

17 Where is the independent evidence to establish that they knew?

18 Where is there any evidence other than looking back and saying, well,

19 we've had the murders, therefore they must have known. When do we have

20 the first killings in Orahovac? We have them in the afternoon or the

21 evening, the evening of the 14th, not in the morning. They don't see

22 anything when they drop them off. They take them and then they head back.

23 Now, we do have that one entry in the logbook of a patrol, a

24 patrol means two, members of the Bratunac Brigade in that area and the

25 date escapes me. I believe it's the 16th or 17th, somewhere around there.

Page 12501

1 Well, I ask you: Did they bring any witnesses? Did they bring anybody

2 from the Bratunac Brigade military police to establish that, because

3 that's their job, that's their responsibility. They have the resources,

4 they have the burden of proof. They have the burden of proof.

5 Well, Your Honour, I certainly don't have the burden of proof of

6 proving that that occurred. If they're just going to show an entry in a

7 logbook and then ask you to make a finding beyond a reasonable doubt that

8 they were there in order to say because they were there, they participated

9 in the killings, and therefore Colonel Blagojevic should die in prison, I

10 think that's an awfully long stretch. If they're going to make that

11 accusation, they have to prove beyond a reasonable doubt.

12 MR. McCLOSKEY: I apologise, Your Honour --

13 JUDGE LIU: Yes.

14 MR. KARNAVAS: But this repeated reference to "die in prison," is

15 just inappropriate.

16 MR. KARNAVAS: 32 years, Your Honour. 32 years is what he asked

17 for.

18 JUDGE LIU: Well, Mr. Karnavas, I think I remind you of that -- at

19 least you have some unnecessary remarks, and we have heard and we

20 understand what you are doing to present to us.

21 MR. KARNAVAS: Very well, Your Honour. I just wanted to remind

22 the Court about the amount of time. It was 32 years. It wasn't a small

23 amount of time that they are asking.

24 JUDGE LIU: Well, we have been reminded for several times already.

25 MR. KARNAVAS: Very well, Your Honour.

Page 12502

1 With respect to the separate chain of command I want to talk a

2 little bit about that. I touched on it earlier. You do have the

3 testimony of General Keserovic. Again, the Prosecution spoke to General

4 Keserovic, they had access to his notebook. General Keserovic's name pops

5 up on the July 17th, 1995, when he's asked by General Mladic to take over

6 when Colonel Blagojevic goes off to Zepa about that searching of the

7 terrain. We heard from him.

8 But who is General Keserovic? He was intimately knowledgeable

9 about the security organ. We brought him here because we thought after

10 the Prosecution had spoke to him and had provided some information and in

11 light of General Mladic's instruction that it might be useful for you to

12 hear from General Keserovic. And I invite your close scrutiny and

13 attention. And I ask you to look at part of his testimony because I think

14 that it's rather telling with respect to the use of the military police by

15 the security organ. It's in the testimony. Again, because of the time, I

16 don't want to go into it. As you can see, we have some documents that I

17 was prepared to go through. But again, it's in the testimony, General

18 Keserovic. And he talks specifically also about this separate chain of

19 command and he said he thought it was two-thirds/one-third. Then we

20 showed him the document to see whether that was the one that he was

21 referring to, and he said yes, 80/20. Then there was this exchange about

22 what is counter-intelligence and he gave us some kind of a definition.

23 But when you look at that whole definition and you look at the way it's

24 applied and who comes up with it and who decides what's

25 counter-intelligence, it appears that the security makes that

Page 12503

1 determination themselves. It's sort of a moving target. It could be

2 whatever they feel or think it is. Obviously if they are engaged in what

3 they believe is counter-intelligence they are not going to inform their

4 commanders. And in fact, on cross-examination Mr. McCloskey asked

5 Mr. Keserovic: Well, when in doubt, you've got to tell your commander.

6 And Keserovic said: No, it's the opposite. When in doubt you don't tell

7 the commander. It's all in that testimony.

8 What am I saying here? I think you need to look at that kind of

9 information and try to understand about how the security organ functioned

10 and how it functioned during this period of time, during a wartime, and it

11 would appear that with this instruction from General Mladic that the

12 security organ sort of took on a life of its own and were operating

13 perhaps outside the rules in certain matters. Now, I agree with the

14 Prosecution that you have Beara asking if he can take troops away from

15 here or there. But again, there's no functional relationship, and that's

16 the key. You need that functional relationship. And what we are

17 suggesting, and what we have suggested, is that members of the Bratunac

18 Brigade military police, if they were used to guard, if they were used to

19 escort, albeit they were not involved at any time in any activities and

20 had no knowledge to know what was going on, in spite of all the by the

21 Prosecution that they were being directed by Momir Nikolic, outside the

22 knowledge of the Bratunac Brigade commander.

23 And we see also that during this period there's a lot of ordering

24 around. We see Mladic, for instance, ordering Mr. Stanisevac [phoen] with

25 the APC, tells him to go towards Potocari. He ends up having to go to

Page 12504

1 Bratunac to get some fuel and then to fix up the APC. You have Mladic

2 ordering the shelling directly. No knowledge of the commander, bypassing

3 the commander completely. Can Mladic do this? Of course he can. But

4 when Mladic issues that order, who's responsible? Because at that point

5 in time, it would be our submission, that once Mladic issues the order,

6 that individual is acting under Mladic's order. And if the brigade

7 commander is unaware of that activity, you can't later on hold him

8 responsible for it. But our contention is that they did not act

9 improperly. You have no shelling of civilians. And it's called, as I'm

10 reminded, the unity of command. That's the unity of command principle.

11 But it seems that during that period, contrary to what Mr. Butler

12 wanted us to believe, this was not the JNA; this was the VRS. Big

13 difference. This was an army that was put together. You had some

14 officers who were trained at the top, then you had reservist officers

15 filling the mid-ranks, and you had the citizen soldier who was two weeks

16 on and two weeks off. That's what you basically had. You didn't have the

17 professional JNA army. And you can't compare one with the other. The

18 only thing that you can do is look at the JNA rules and say: For the most

19 part, they had been adopted. But once you do that, you have to take the

20 rest of it, which is the military doctrine. Now, that's the part we don't

21 like, so we don't look at. And I suggest you have to, you must, because

22 they're inseparable.

23 Now, I want to go on to the 15th and the 16th of July, because

24 there was some talk about a suggestion that was made by Colonel Milanovic.

25 He made that suggestion to General Krstic. And it would appear -- we

Page 12505

1 don't have the order itself, unless I'm mistaken, but I've never seen an

2 order by General Krstic to Colonel Blagojevic, but we do have the interim

3 daily combat report of the 16th. And so I think we can say: Well, based

4 on that -- I mean, there is where you could look at circumstantial

5 evidence and draw some conclusions. I don't have a problem with that sort

6 of circumstantial evidence. But there you could say: All right. It

7 would appear that Milanovic's suggestion was accepted by General Krstic.

8 But what does the Prosecution do yesterday? And again, I'm not

9 trying to attack the Prosecution, but I have to attack their position; I'm

10 defending. I know no other way of doing it. What they're trying to

11 suggest is that because they chose Colonel Blagojevic, that is some sort

12 of indicia that he was the man, and only man available for that job.

13 That's what I heard yesterday. But if you look at the circumstances and

14 you look at the reasons why Colonel Blagojevic is recommended, is because

15 there was nobody else available. Far cry from: He is it. He is the most

16 competent individual. Nobody else is there. You know, that's not the

17 case.

18 Also, you have to keep in mind that on the same day, on the 16th,

19 he gets an order to mobilise for Zepa. Now, look at the two tasks that he

20 has. One is to go and check up and perhaps coordinate among the various

21 units that are doing the searching operation. And again, there's nothing.

22 There's not one single shred of evidence that would show that that

23 searching operation that he was being asked to coordinate was conducting

24 any illegal activities. But be that as it may, he has that. And then he

25 has to mobilise virtually his entire brigade to go to a foreign place,

Page 12506

1 because basically that's what we're talking about, to a location in Zepa

2 where they're going to be engaged in combat. And I think you cannot lose

3 sight of that.

4 So if you put them on the balancing scale, where would the

5 commander place his time? This is the same commander that visited his

6 troops on the 12th and the 13th. Is it not reasonable and plausible that

7 he would spend his time mobilising? Because this is not something that

8 you can just give an order and it just happens. And I think when you look

9 at the Bratunac Brigade it's hardly a Swiss clock. Things are not working

10 that smoothly.

11 We do have one witness - we brought one witness from Serbia, if

12 you may recall - who said that: They did not carry out this order. They

13 went all the way to Konjevic Polje, I believe. It's DP106. And then they

14 came back, and basically they concentrated on the mobilisation process.

15 But again, I asked you to look at the two arguments. The

16 Prosecution is saying: This is an order from Mladic; therefore, it's

17 going to get done, and this is why he's picked. And what I'm suggesting

18 is: He's got two orders at the same time, one where he has to mobilise

19 his troops, where they're going to go into combat, where you have the risk

20 of losing the lives of your soldiers, the most precious commodity that a

21 brigade has, versus going and visiting and giving some tasks. And I think

22 there's another reasonable and plausible explanation. Again, I know that

23 you know this, but I have to keep repeating: I don't have to prove this;

24 they do.

25 We do know that we have testimony from Mico Gavric, who was there,

Page 12507

1 I believe, on the 17th. He was the one that was out in the field. He

2 said that he was asked to coordinate, that MUP -- we had -- remember

3 Mr. Dusko Jevic, aka Stalin. He was out there. And there's some

4 disagreement as to who was subordinated to whom or whether they were

5 working, coordinating, side by side. Dusko Jevic, who is MUP, obviously

6 it would be much better for him to say that he was subordinated to the

7 Bratunac Brigade in case something happened to any of the men that they ad

8 captured that day. That's a natural reaction. Mr. Gavric says his orders

9 were, one, from Colonel Blagojevic: Make sure nothing happens to anybody

10 that is captured, make sure that the Geneva Conventions are complied with.

11 That's number one. Number two, he was there to coordinate.

12 And if you may recall when Major Obrenovic was on the stand, we

13 were able to show a part of his statement where he had been questioned by

14 the Prosecutor on a similar instance, where we had been asked whether MUP

15 was subordinated to the Zvornik Brigade as they were searching. And he

16 said: No. We were working side by side. And Mr. McCloskey asked him:

17 Well, that's kind of dangerous, don't you think, you know? And he says:

18 Yes, but that's how it was.

19 So it's not an out-of-the-ordinary situation. So I'm not asking

20 you to sort of fantasize about something that might be done. We have a

21 concrete example from a Prosecution cooperating witness, based on evidence

22 that we know. So I'm suggesting you have another plausible and reasonable

23 explanation that they were working -- they were coordinating.

24 But what does Mico Gavric say? He says on that particular day

25 they captured some children. He took personal custody of the children.

Page 12508

1 We know that they were all -- they were treated well and they were taken

2 to safety. The men -- it's quite unclear as to who captured them, but it

3 turns out that they were in the hands of MUP and taken to Konjevic Polje.

4 The question was asked of him: Why didn't you take them to the Bratunac

5 Brigade or to Bratunac? And the answer was: Where they were captured and

6 the location and the terrain - and you have to appreciate the terrain;

7 you've been there - but where they were captured, it was right by the

8 intersection. You have that intersection that goes Konjevic

9 Polje-Bratunac, and then it goes Milici one way and it goes to Zvornik the

10 other way. So they were captured right around there. So it made sense.

11 And the next day, Mico Gavric said that he saw the men.

12 He indicated that he had no reason to believe that any harm would

13 come to them. If Mico Gavric was this sort of demon, as -- you know,

14 possessed within this vortex of hatred, as we heard, why would he try to

15 save the children? Why not kill them as well? I submit that Mico

16 Gavric's testimony is extremely credible. And I suggest that he shows

17 another side of the Bratunac Brigade, and that is that Colonel Blagojevic

18 had strict instructions to his men that they were to behave accordingly.

19 And I want to fast-forward a couple of months from then,

20 September, October; it's unclear. But if you may recall, they learned

21 that there were some Muslims in a hill, hiding. And of course, you have

22 to appreciate that nobody knows whether they're armed or not armed, what

23 they're there for. But Sreten Petrovic is asked to go out there and check

24 out the situation, and he does, and he captures them and he brings them to

25 Bratunac. They share breakfast together. They even give him three

Page 12509

1 rakijas, according to the one survivor that we saw. That was DP104. And

2 they were treated appropriately.

3 So again, here's another example. If there was this vortex of

4 hatred, where there -- everybody's just a killing machine because of the

5 ravages of war, why do we have these examples? And we saw the one person

6 who came in, and he said he was treated properly, "correctly," was the

7 word. And we're grateful for the fact that he came in and told us his

8 story.

9 So let me move on. We have -- I want to speak a little bit about

10 the burials -- the reburials and the burials.

11 With the burials, we have testimony with respect to the civilian

12 protection. The Prosecution would have us believe that everybody's

13 working under the military, or if not, they're working together and

14 inseparably, and also that somehow the Bratunac Brigade might be connected

15 with all of these activities. Because we do know that there are some

16 members who are in the civil protection who at the same time - at least

17 one of them - had been mobilised with the Workers' Battalion, who is then

18 called to the civil protection. We tried to establish through evidence

19 where the lines were and who was issuing the orders when, who had the

20 competencies. Needless to say, there's not one shred of evidence that

21 would demonstrate that Colonel Blagojevic was involved in any capacity

22 whatsoever with the civil protection.

23 There was one witness who testified, if you might recall -- he was

24 a truck driver. He was working in a mine. And he was on the list. And

25 so on direct examination, the Prosecution was trying to establish that

Page 12510

1 he's a member of the Bratunac Brigade; therefore, you can draw some

2 conclusions from that.

3 But if you recall, we were able to demonstrate on

4 cross-examination that he had been placed on the list because -- well,

5 first of all, he was the only male survivor in his family - and the policy

6 was during that period for the male survivors not to be on the front

7 line - and at the same time was able to put his name on the list so that

8 they could get the groceries or the subsidies. And finally, remember when

9 I showed him the document and it turned out that it was his wife's

10 signature that had been collecting all of that? And then he came clean

11 and indicated that, yes, he was just there on name alone.

12 And there was at least one other witness that said the same thing.

13 And in fact, when he came in and the Prosecution confronted him with the

14 list, he found his own name, with somebody else's signature, who

15 apparently was taking out groceries, or supplies, based on having his name

16 there. Somebody had signed it -- got his name on the list and was signing

17 to get stuff out.

18 There's absolutely -- we heard testimony from Mirkovic, who talked

19 about when he was mobilised and what he was tasked to do. You hear

20 absolutely no testimony from that gentleman whether there's any connection

21 between him and the Bratunac Brigade or him and Colonel Blagojevic.

22 Now, on the reburials we have some evidence. One, there is the

23 notebook of Momir Nikolic where he says that he was at a meeting and he

24 made the announcement that he's conducting asanacija on behalf of the

25 Main Staff.

Page 12511

1 Now, let's stop and pause for a second. When did this asanacija

2 begin? Because right around that period, September going into October, we

3 know that Colonel Blagojevic is engaged in moving the Bratunac Brigade

4 from Bratunac to Trnovo. So he's going back and forth. But more

5 importantly this is a Main Staff operation. Probably Beara is running the

6 operation with Popovic. We know that Popovic is involved because

7 apparently there are some petrol receipts. This is an operation from the

8 highest levels. And of course in order for Nikolic, because he's being

9 tasked directly, he apparently uses members of the Bratunac Brigade

10 military police. There's not one single piece of evidence that Colonel

11 Blagojevic issued any orders with regard to that. However, I think we can

12 draw an inference that based on this document that at least Colonel

13 Blagojevic was put on notice that this activity was going on, at the very

14 minimum we can draw that conclusion. And I believe there was also

15 testimony that -- from witnesses that said they could smell the odour as

16 the trucks went by. So it would be very difficult to be there and not

17 know that activity.

18 Question -- these are assets, the military police are assets of

19 the Bratunac Brigade. To what extent did Colonel Blagojevic have the

20 ability to say no to the Main Staff, that's number one. Number two, all

21 right, he learns that there is this operation going on for the reburials,

22 which I believe the Court has already found that is not a natural and

23 foreseeable consequence of the earlier activities but it would be sort of

24 aiding and abetting after the fact. Obviously under the rules then

25 existing the brigade commander had a responsibility to launch an

Page 12512

1 investigation and to punish, if necessary. But as you may recall, I began

2 with stating the law because, one, you cannot ask the commander to do the

3 impossible. What are his -- the means that are available?

4 And here again I want to draw the Court's attention that we

5 brought the one witness -- the right witness I should say, that should

6 have been brought to tell us about the means available at the time in

7 order to launch an investigation and to prosecute. He was the military

8 prosecutor at that time. We also brought an investigator who was working

9 with the military police in Bijeljina, and he would be the person that

10 would be conducting -- carrying out the investigations at the behest of

11 the Prosecution or investigative judge, Mr. Gajic.

12 Now, we went through the rules a little bit, and I think this is

13 important - and again I stressed it earlier, I want to stress it again - I

14 asked both of them, but more particularly the prosecutor, could somebody

15 come in and make an anonymous complaint. And the answer was: No, I had

16 to take the name down. All right. And who would conduct the

17 investigation? It would be the security organ. All right. Then we sort

18 of looked at the rules and we figured out -- tried to figure out where

19 would Colonel Blagojevic, for instance, assuming he wanted to launch an

20 investigation, where would he go? Well, he can't directly investigate

21 Momir Nikolic. He would have to go and file a complaint or ask for

22 assistance from the Drina Corps assistant commander for security, that's

23 Mr. Popovic. Is there any doubt that Mr. Popovic was involved in these

24 activities? Hardly. We see his fingerprints everywhere. So imagine

25 asking Popovic to investigate Nikolic for the activities that perhaps

Page 12513

1 Nikolic was involved as a result of getting orders from Popovic. All

2 right. Kind of difficult. Would you say impossible? Well, I think so.

3 Well, who else was involved? Beara. Where would you go -- who

4 would you ask to investigate Beara when you find out that Beara was in

5 town, he's responsible, he's the one who came and took all these -- the

6 prisoners on the morning of the 14th and issued all these orders. Where

7 would you go? Well, can you imagine asking Beara to investigate himself

8 for the killings that he was doing? You can't. You could go to Mladic I

9 guess. I think it's pretty clear that General Mladic was probably at the

10 top of some of this activity. And we're talking about a lieutenant

11 colonel at the time, and we're asking today looking back at The Hague

12 where we have witness protection for our witnesses. We fly them in,

13 nobody knows where they're staying, they're under complete protection. Or

14 if you have a cooperating witness, we give them witness protection, they

15 can live in a nice country, have a job, their families. They have all

16 this protection. Basically a new identity. Well, Your Honour, I think

17 it's important, because if you're going to ask somebody to risk their life

18 in this -- today, in our environment, we say it's okay. We'll provide you

19 with those sorts of resources and assistance because of what you're going

20 to tell us, because we realise that you're placing your life in jeopardy.

21 Think back now what it must have been like during the war years.

22 If we worry about the safety of those people today, why would we not worry

23 about their safety back then when it was sort of the Wild Wild West when

24 you had people going around doing as they pleased. You had sort of these

25 paramilitaries. So I ask you: Would it have been possible under the

Page 12514

1 circumstances back then knowing what we know now of how things operated

2 back then, and would it have been reasonable to ask somebody to go and try

3 to forfeit his life or the life of his family to report and to launch an

4 investigation of activities that have already occurred? I think that's

5 what the important aspect of it is. In my brief I mentioned that in

6 essence you have sort of a self-defence. You're trying to defend

7 yourself or defend others, and that's why you're not taking that positive

8 step, assuming that you knew and you needed to take that positive step.

9 Or you could -- it's an imperfect -- it's not a complete defence, and that

10 would be the defence of necessity. That's why in my brief I made

11 reference to that. Because I think you have to look at the facts as they

12 existed back then. And that's why I keep focusing your attention to the

13 facts as they existed back then, especially when you're trying to figure

14 out what everybody knew at the time.

15 The Prosecution, as I continue to say, makes these

16 generalisations. Basically when you look at things back then and you see

17 his position, he knew, he must have known, he had to have known, if you

18 see that his name is being mentioned on intercepts, that means that he

19 must have been involved. And I say: Where is the hard evidence? Where

20 is it? And if you're going to try to draw some inferences you at least

21 have to eliminate all the other reasonable and plausible conclusions. And

22 that must be the only reasonable and plausible conclusion that you must be

23 able to prove beyond a reasonable doubt before you can reach it.

24 If I may have a moment.

25 It's almost finished. It looks like I won't need the extra time,

Page 12515

1 but I do want to talk a little bit about Nikolic one last time because

2 there is a rather interesting exchange. Again, I want to focus the

3 Court's attention. We have been very critical, as you know, of the final

4 brief by the Prosecution. It's hard not to be -- not to criticise

5 somebody when you're critical of their -- of what they've done. It's not

6 personal, it's professional.

7 But I want to focus on paragraph 341 of their final brief.

8 Because they make a statement with respect to documents being destroyed,

9 and I think it's rather important. It says towards the bottom of the

10 page, page 125, it says: "The Bratunac Brigade documents in this case

11 make scant reference to the murder operation. However, Captain Momir

12 Nikolic testified that he had destroyed a significant number of Bratunac

13 Brigade documents after the war, including the Bratunac Brigade documents

14 most likely to include such references." And they point to -- there's a

15 footnote, 1047.

16 Well, I was rather curious about that, and of course 1047 goes to

17 some of the transcript. But then there was an interesting exchange

18 between Momir Nikolic and Judge Vassylenko. And Judge Vassylenko was

19 trying to get Momir Nikolic to answer a question about these documents.

20 You know, what documents exactly did he destroy. Were these documents

21 that were orders by the Bratunac Brigade commander that would somehow

22 implicate Colonel Blagojevic? Were these personal documents? Because

23 after all we know that he was a security officer and even by the

24 Prosecution's own admissions, they tend -- those security officers tend to

25 sort of be very guarded when it came to having documents where they had

Page 12516

1 vital information. And I don't want to read the entire exchange, but on

2 page 2.366, Judge Vassylenko asked: "Can you describe the documents

3 you've destroyed?" A pretty concrete question.

4 Answer: "I can, Your Honour. Among others, there was my diary

5 which contained everything that was going on while in the period while I

6 was in the army, by dates, times, names. Also there were many names, many

7 pieces of information that were handwritten, not typed out. So this was

8 the type of documents involved, diary, my notes, my opinions, et cetera.

9 That's the kind of documents that were there that I had burned and left."

10 "Q. Did you destroy any documents containing orders from your

11 superiors and documents signed by yourself?"

12 "A. No, Your Honours. Here on this list it can be seen that I

13 left those orders that came to me because I think there was no need to

14 destroy those documents."

15 I think he cuts across a little bit -- cuts against, I should say,

16 what the Prosecution is insinuating that somehow we don't have the orders

17 because there was Momir Nikolic destroying all these documents, including

18 perhaps vital documents that would tie Colonel Blagojevic into the thick

19 of things.

20 Just let me wind up with a couple of things. I've talked about

21 being in this straightjacket, which is the indictment. It's kind of hard

22 to stay in that straightjacket when the Prosecution's case is all outside

23 it, at least that's our opinion. When they make references to 1992, when

24 they make references to what the RS plan was and they tried to infer

25 knowledge, it's rather difficult. When they talk about May 25, 1995,

Page 12517

1 which is not in the indictment, it's not charged, they make -- they spend

2 a considerable amount of time talking about it. For you to infer somehow

3 that day one, he comes in, takes over, and the first thing he does is

4 shell. They don't tell you the rest of the story, which is it's not his

5 order and it's a retaliation because of the NATO bombings. He has nothing

6 to do with it.

7 So I think in fairness we have to look to other plausible and

8 reasonable explanations. And it seems that we feel that somehow that

9 throughout this trial we have been we have been sort of trying to defend a

10 moving target. That's our impression; perhaps we're wrong. But I think

11 that's how it's been.

12 And I just want to read one last part of our -- from our final

13 brief which goes to the evidence and the evaluation of evidence. This is

14 on page 96, paragraph 180. And I quote from Colonel Jelac trial judgement

15 where it says: "While evidence of a number of different circumstances

16 when taken in combination may point to the existence of a particular fact

17 upon which the guilt of the accused depends because they would usually

18 exist in combination only because a particular fact did exist, the Trial

19 Chamber and Colonel Jelac stress that such a conclusion must be the only

20 reasonable conclusion available."

21 We ask you, Your Honours, to be extremely careful. As you see, we

22 have all these documents. This is part of our dissection of the

23 Prosecution's final brief. We -- I need two or three days to go through

24 them; obviously we don't have the time. But in light of that, we do ask

25 you to look at their brief very carefully, to look at the footnotes, to

Page 12518

1 look at what they cite. Because sometimes as I pointed out they will cite

2 something in the middle of the sentence and not give it context. I think

3 that's important. Where I practice in my jurisdiction, judges would not

4 tolerate that but juries would tolerate it.

5 MR. McCLOSKEY: Objection, Your Honour. He's going back into the

6 area that he's worst at, and I just don't think it's appropriate.

7 MR. KARNAVAS: I just mentioned what my judges would do to me.

8 MR. McCLOSKEY: Well, in your jurisdiction your judges wouldn't

9 allow you into court.

10 JUDGE LIU: We have heard about that already.

11 MR. KARNAVAS: Mr. President, I think the Prosecutor needs to

12 learn how to behave himself, and I think those comments are terribly

13 unhelpful. He should be experienced enough to know how to restrain

14 himself and it is disappointing that he is behaving in this way.

15 In any event, let me just conclude by saying that what happened in

16 Srebrenica was a terrible, terrible incident, and I don't think that we

17 ever tried to minimise it. We ask you to consider all of the evidence, be

18 fair to Mr. Blagojevic. Even if perhaps I as his lawyer have sometimes

19 tested the patience of the Court, because I think he deserves that which

20 the Prosecutor was never willing to give him: A fair opportunity to have

21 all the evidence looked at carefully. Because in my opinion, the

22 Prosecutor began with their mind made up when they indicted. And only

23 after that they began looking for the evidence. And sometimes they've put

24 their blind eye to the microscope and to the telescope. And I'm sure I'm

25 going to have to respond tomorrow. But just in the event I may not need

Page 12519

1 to, I just want to thank at this time everybody that has made it possible,

2 the booths, the court personnel here, and the Defence team. Thank you.

3 JUDGE LIU: Thank you very much, Mr. Karnavas. Well, you finished

4 your closing argument within the time of yours. But still we have to

5 stick to the timetable I have announced. So we'll resume tomorrow morning

6 beginning with Mr. Stojanovic's closing argument, and in the afternoon we

7 have the rebuttal and the rejoinder. We might have an extra sitting in

8 the afternoon; it depends on how much time we need.

9 So if there is nothing else for today's session, I believe the

10 hearing for today is adjourned.

11 --- Whereupon the hearing adjourned at 4.02 p.m.,

12 to be reconvened on Friday, the 1st day of October,

13 2004, at 9.00 a.m.