Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12520

1 Friday, 1 October 2004

2 [Open session]

3 [Defence Closing Statement]

4 [The accused entered court]

5 --- Upon commencing at 9.00 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. Good morning, ladies and gentlemen. Today

10 we are going to hear the closing arguments by Mr. Jokic's Defence.

11 Mr. Stojanovic, are you ready for that?

12 MR. STOJANOVIC: [Interpretation] Good morning, Your Honours. As

13 planned, we are going to make our closing arguments today within about 200

14 minutes or so. That would be about three to three and a half hours. I

15 hope that it may be even shorter.

16 Your Honours, gentlemen of the Prosecution, we are nearing the end

17 of this long and complex trial. After 145 trial days, after viva voce and

18 92 bis and 94 bis Prosecution witnesses, 93 of them, after hearing 42

19 witnesses that were brought before this Honourable Trial Chamber by the

20 Defence of Mr. Blagojevic, and after hearing 14 witnesses that were called

21 by the Defence of Dragan Jokic, and adducing about 1.000 exhibits on the

22 part of all the participants in these proceedings, we are now to address

23 you in accordance with Article 86 of the Rules of Procedure and Evidence.

24 This Defence does not want this closing argument to be

25 overextensive. We don't want it to be repetitive. We don't want to

Page 12521

1 repeat what we've already said in the final brief. And bearing in mind

2 all the elements of our defence which we did present in our final brief,

3 today we wish to point out the key elements of this case which stem from

4 the evidence adduced and the legal aspects of the indictment against

5 Dragan Jokic. We would particularly like to refer to some of the things

6 said in the closing arguments presented on Wednesday by Mr. Waespi of the

7 Prosecution.

8 Let us take things in order. In the last amended joinder

9 indictment against the accused Vidoje Blagojevic and our client, Dragan

10 Jokic, our client, Dragan Jokic, was charged that he participated as a

11 member of the Zvornik Brigade in the period encompassed by the indictment

12 and the crimes that were committed in the territory of Srebrenica,

13 Bratunac, and Zvornik. The position that Dragan Jokic had at the time was

14 described in paragraphs 13 and 14 of the amended joinder indictment.

15 According to these allegations, in July 1995, Dragan Jokic was a

16 staff officer in the Zvornik Brigade, and he carried out the duties of

17 chief of engineering. And as the indictment says, he was responsible for

18 planning, directing, organising, and monitoring the activities of the

19 Zvornik Brigade engineering company. And further on, they say that he was

20 thus empowered to issue orders to the engineers company which implemented

21 directives of the commander or the Chief of Staff of that same brigade.

22 The second segment of this entire story, as it were, is

23 paragraph 14 of the indictment where Dragan Jokic is charged that as duty

24 officer at the headquarters of the Zvornik Brigade from the morning of the

25 14th of July, 1995, until the morning of the 15th of July, 1995, was

Page 12522

1 charged with the duty of conveying orders from the higher command to

2 subordinate units and, at the same time, he was tasked with drafting or

3 sending reports to the higher command or to relay them. The indictment

4 says what we've been dealing with about all these days, that the duty

5 officer is the central point of coordination and communications for the

6 Zvornik Brigade zone of responsibility.

7 On the basis of such a position held by Dragan Jokic, the

8 Prosecution concludes that he has individual criminal responsibility on

9 the basis of Article 7(1) of the Statute in the commission, planning,

10 instigation, aiding, and abetting, and supporting the preparations and

11 perpetration of the crimes that occurred in the mentioned period in the

12 territory of Srebrenica, Bratunac, and Zvornik. This is described in

13 paragraph 27 of the indictment.

14 The Prosecution believes that Dragan Jokic, having held the

15 position of operations duty officer and chief of engineering in the

16 Zvornik Brigade was a member of the joint criminal enterprise because he

17 could have foreseen - I underline the word "foreseen" because we will talk

18 about it to a considerable degree - that the forces of the VRS and the

19 MUP, during and after the joint criminal enterprise, will carry out

20 opportunistic criminal acts such as those described in this indictment.

21 Also that specifically as chief of engineering, he assisted in planning,

22 monitoring, organising and carrying out the burials involved in the murder

23 operation, while as operations officer, again he assisted in coordinating

24 communication between VRS officers and commands involving the transport,

25 detention, execution, and burial of the Srebrenica Muslims.

Page 12523

1 In the factual basis of the indictment, this particular segment of

2 the obligations that the chief of engineering had and that Dragan was

3 charged with was described in paragraphs 46.4, 46.6, 46.8 through 46.12,

4 and 51 of the indictment.

5 As a member of the joint criminal enterprise, he has been charged

6 with many opportunistic killings that took place in the territory of

7 Bratunac and Zvornik. Your Honours, on the basis of such factual

8 allegations made in the indictment, the Prosecution, both in the

9 indictment and after the judgement related to 98 bis, the Prosecution

10 comes to the conclusion that Dragan Jokic committed crimes from counts 2

11 to 5 of the indictment, namely described in Article 2 -- in count 2 of the

12 indictment and punishable by Articles 5(b) and 7(1) of the Statute of the

13 International Criminal Tribunal.

14 You did hear that the Prosecution believes that they proved beyond

15 reasonable doubt by adducing their own evidence that four elements were

16 met which are otherwise required as proof of extermination as a crime

17 against humanity. Number one, that there was an armed conflict, which we

18 are not denying. Number two, that the actions taken by Dragan Jokic are

19 associated with a widespread and systematic attack aimed against the

20 civilian population caused the death of victims, and that the actions and

21 omissions of Dragan Jokic were unlawful, either out of intent - we are

22 going to refer to that - advertent recklessness, or gross negligence. And

23 fourthly, that Dragan Jokic was within a broader context in which his

24 conduct took place.

25 Not to repeat myself, in paragraphs 3 and 4 of the indictment, the

Page 12524

1 Prosecutor comes to the conclusion that Dragan Jokic, as a member of the

2 joint criminal enterprise, also committed crimes of murder as a crime

3 against humanity and violations of the laws and customs of war. And

4 count 5 of the indictment states, and they tried to prove this through

5 these proceedings, that Dragan Jokic also committed the crime of

6 persecution as a crime against humanity, which is reflected in cruel and

7 inhumane treatment, terrorising the civilian population, and destroying

8 their personal property.

9 In the briefest possible terms, acting in accordance with the

10 powers derived from Rule 98 bis of the Rules of Procedure and Evidence,

11 this Defence, on the 28th of February, 2004, and at the end of the

12 Prosecution case, this Defence submitted to this Honourable Trial Chamber

13 a motion for acquittal on all counts in respect of Dragan Jokic.

14 Your Honours, in your judgement of the 5th of April, 2004, that is

15 to say after the Prosecution case, you established that in respect of

16 Dragan Jokic, on counts 2 to 5, in terms of his individual criminal

17 responsibility under Article 7(1) of the Statute, he was acquitted of all

18 these counts in the part that relates to planning, instigating and

19 ordering the crimes. Also, in the same judgement, in relation to Dragan

20 Jokic the Trial Chamber rejected the factual allegations contained in

21 paragraph 45(b) and (e), 47.2, 47.5, except for the witness named Resid

22 Sinanovic, and for paragraphs 47.7 and 47.8 of the indictment.

23 What guided us in our work that followed when we presented our own

24 case was your conclusion that no reasonable trier of fact could reach a

25 finding beyond reasonable doubt that Dragan Jokic ordered the crimes of

Page 12525

1 murder, extermination or persecution per se. Therefore, they removed

2 these three heads of responsibility for all the crimes with which Dragan

3 Jokic has been charged. However, the conclusion that a reasonable trier

4 of facts could find, on the basis of the evidence adduced by the

5 Prosecution, if it were to be accepted, could lead to the conclusion that

6 Dragan Jokic was a member of the joint criminal enterprise and that he

7 participated in the execution and aiding and abetting of these crimes by,

8 I quote, "Knowingly provided assistance in the commission of crimes he is

9 charged with and that he could, therefore, incur individual criminal

10 responsibility as an aider and abettor." That is the core of what we wish

11 to speak about, proceeding from res judicata.

12 After this -- after this decision of the Trial Chamber, the

13 Defence case of Mr. Blagojevic and Mr. Jokic followed, and in the opinion

14 or, rather, in the modest opinion of this Defence, these two Defence cases

15 led to a different conclusion on the position of the accused Dragan Jokic,

16 his knowledge on the existence of a joint criminal enterprise, and the

17 objectives of this enterprise, especially about his consciousness and

18 intent, mens rea, in terms of assisting the perpetrators of these crimes

19 through his own knowledge.

20 In this closing argument, we will try to address precisely the

21 results of the overall proceedings, not only an analysis of the

22 Prosecution evidence. In order to prove that Dragan Jokic was a

23 participant in joint criminal enterprise, the Prosecution must prove

24 beyond any reasonable doubt all the criteria established in the

25 jurisprudence of the Tribunal. In order for someone to be convicted as a

Page 12526

1 member of a joint criminal enterprise, it is necessary to meet many

2 requirements. And with regard to this matter, the Honourable Trial

3 Chamber and the jurisprudence of this Tribunal have already taken a

4 position; namely, we have already heard all of this, that is, that

5 participation in a joint criminal enterprise can be considered in one of

6 the following ways: By direct participation in the commission of these

7 crimes, and that there is agreement among the perpetrators of these

8 crimes. Then, also, the accused could knowingly assist the perpetration

9 of this crime or instigate another person to commit this same crime. And

10 thirdly, if acting in a way which would assist a particular system within

11 which this crime is perpetrated by virtue of the fact that he holds a

12 particular position with certain powers and that he has knowledge about

13 the nature of this system and the intent to support and promote this.

14 According to paragraph 36 of the indictment and bearing in mind

15 paragraph 77 of the judgement in accordance with Rule 98 bis, it appears

16 that Dragan Jokic knowingly assisted the commission of the crimes that he

17 has been charged with. Your Honours, on the basis of the evidence we

18 heard, in order to reach such a conclusion and in order to have this

19 conclusion be a well-argumented one, beyond any reasonable doubt,

20 according to the jurisprudence of this Tribunal and which was dealt with,

21 inter alia, in the appeals judgement in the Aleksovski case, it is

22 necessary to meet several requirements.

23 First of all, that the accused committed a crime which consists of

24 practical assistance, instigation or moral support and which in turn would

25 have a considerable influence on the commission of crimes by the main

Page 12527

1 perpetrator. Secondly, it is necessary to establish that Dragan Jokic was

2 aware of the main elements committed by the chief perpetrator. And the

3 third and key question related to establishing affiliation with joint

4 criminal enterprise as an aider and abettor is to prove mens rea, the

5 mens rea required by an aider and abettor, and which means that an aider

6 and abettor knows that his actions and activities do assist the commission

7 of a certain crime on the part of the main perpetrator. Such

8 jurisprudence of the Tribunal has been expressed in the appeals judgements

9 in Krstic and Tadic, as well as the Kunarac judgement.

10 However, Your Honours, while I was preparing my introduction today

11 and listening to the Prosecutor's closing arguments, as well as their

12 theory of a joint criminal enterprise, and while I was listening to

13 Mr. Karnavas's closing argument yesterday, at one point it simply occurred

14 to me that it would be a useless waste of time for me to use these closing

15 arguments to further comment on this theory of joint criminal enterprise.

16 You know this far better than I do. You can always go back to the

17 jurisprudence of this Tribunal to check any of our positions against that

18 background.

19 However, I deem it necessary in view of Article 24 of the Statute

20 of this Tribunal to draw your attention to the case law and jurisprudence

21 of the country from which both my client and I come from, which certainly

22 has a bearing when determining the kind and length of sentence to possibly

23 be imposed. And we believe this is something that the Chamber should take

24 into account. Please allow me to use this opportunity to say a couple of

25 words about the legal framework that was in place at the time relevant to

Page 12528

1 the indictment.

2 In July 1995 in Bosnia-Herzegovina, and also in the federation and

3 in Republika Srpska, the same law applied that had been taken over from

4 the former Social Federal Republic of Yugoslavia. It was no longer called

5 the Criminal Code of the SFRY but, rather, the Criminal Code of Republika

6 Srpska, general provisions. We changed the cover, but the book remained

7 the same.

8 In Article 24 of that law, the law that prevailed at the time

9 gives us possible forms of co-perpetration or complicity, co-perpetration,

10 instigation, and abetting. The concept of abetting implies the following:

11 It implies responsibility. It implies a form of responsibility in which a

12 person with intent abets another person in the perpetration of a crime.

13 What was implied by abetting a person in the perpetration of a crime,

14 rendering advice or instruction as to the manner of commission of a

15 criminal offence, making available to the perpetrator the means for

16 committing a criminal offence, removing obstacles to the commission of a

17 criminal offence, and the promising before the commission of a criminal

18 act to conceal the following: The criminal offence, the perpetrator, the

19 means by which the crime was perpetrated, and the traces of the crime or

20 items obtained by or through the criminal offence. Abetting entails

21 intent. It is a deliberate act. It requires the mens rea. It requires

22 awareness, and it requires knowledge.

23 Abetting can take two forms. You can abet by doing or by not

24 doing. In neither of these cases, however, for someone to be held

25 criminally responsible, in both of these cases, rather, the perpetrator

Page 12529

1 and the abettor must be mutually connected and they must be aware of each

2 other. The perpetrator must know of the abettor and must be aware of the

3 abettor, and vice versa, the abettor must be aware of the perpetrator.

4 In order to establish abetting as a form of co-perpetration, it is

5 sufficient for the abettor to know that by his actions he abets the crimes

6 of a principal perpetrator.

7 Finally, abetting is a deliberate action. It means intent. It

8 entails intent. An abettor must have intent. Abetting by negligence or

9 reckless abetting, which the law says is also an option, does not qualify

10 as abetting in the legal sense of the word, and no person can be held

11 criminally responsible for that. An abettor must have intent in carrying

12 out his actions.

13 In our jurisprudence, the jurisprudence that both my client, the

14 accused Dragan Jokic, and I come from, intent, in the tradition of the

15 continental law, is an action which divides into two components, direct

16 intent and possible intent.

17 Under the concept of direct intent, the law provides that the

18 perpetrator should have the mens rea and that he actively wills the action

19 to be carried out. This is the gravest form of criminal behaviour.

20 Possibly intent, on the other hand, means that the perpetrator was in

21 possession of the mens rea. Therefore, he was aware that by his action or

22 as a result of his action or inaction there might result certain

23 consequences, but he willingly agrees to the fact that these consequences

24 may arise as a result.

25 There is no such thing as reckless abetting. In order for someone

Page 12530

1 to qualify as an abettor, he must know what the objective is, the

2 objective of the principal perpetrator. He must have intent in abetting,

3 this objective.

4 Maybe this reasoning espoused by the continental legal systems is

5 the same as the one expressed in the Brdjanin judgement, stating that in

6 order for someone to qualify as a member of a joint criminal enterprise,

7 there must be previous agreement or acting in concert.

8 Your Honours, Dragan Jokic was no part to any kind of agreement.

9 Dragan Jokic had no idea on earth what was going on in the criminal heads

10 of a handful of people who took these monstrous decisions. Dragan Jokic's

11 level as an officer in terms of his rank, in terms of establishment, was

12 not high enough for someone to come up to him and tell him about these

13 things. Dragan Jokic was not someone who was in a position to foresee the

14 consequences that might arise from prisoners being brought to Zvornik. He

15 does not have this evil inside his head. These consequences would never

16 occur to any healthy and reasonable human being, namely that a large

17 number of prisoners would be brought over, detained, and killed from the

18 area of Srebrenica. For that reason, this Defence seeks that the Trial

19 Chamber bring an acquittal in respect of Dragan Jokic, and that is why

20 from the very beginning we believe that Dragan Jokic had no part in any

21 joint criminal enterprise, that he had no mens rea to aid and abet the

22 perpetration of these crimes. The only possible outcome would be just

23 that, an acquittal for Dragan Jokic, to have Dragan Jokic acquitted of

24 these charges described in the indictment.

25 Every Defence has a bias. Please, Your Honours, allow me to take

Page 12531

1 one thing at a time, paragraph by paragraph of the indictment, and to use

2 evidence, evidence that was before you, evidence that you heard, evidence

3 invoked by the Prosecutor to show why we seek such a sentence, a sentence

4 of acquittal, and why that is what we believe.

5 If we look at the substance of the indictment, paragraphs 13, 36,

6 46.4, 46.8, and 46.12, as well as 46.6 and 51, it follows that Dragan

7 Jokic, as chief of engineers, directed the engineers company of the

8 Zvornik Brigade in all the activities in which the engineers company was

9 allegedly involved in the burials of Srebrenica's victims.

10 The Defence has tried on a number of different occasions to draw

11 the Trial Chamber's attention, both in writing and orally, to the problem

12 that we encounter when we come across the term "direction." This is a

13 term that is used throughout these cited paragraphs of the indictment.

14 Now at the close of this trial, we again beseech you to pay attention to

15 the fact that this is no mere semantic issue. This is an essential issue,

16 central to Dragan Jokic's position.

17 The concept of direction, as understood by the Prosecutor and

18 according to the way in which it has tried to present this concept to the

19 Trial Chamber, is explained in paragraph 46.4 of one of the amended

20 joinder indictments where the term "direction" used in the indictment is

21 used to charge Dragan Jokic with planning, monitoring, organising, and

22 carrying out this broad level of responsibility attributed to the chief of

23 engineers is not consistent with his actual powers, de facto or de jure.

24 For that reason, we have remained adamant to have this concept clarified.

25 This concept is used to practically usher in through the back door the

Page 12532

1 possibility that Dragan Jokic exercised command in his capacity as chief

2 of engineers. He did not have these powers, and he did not have this

3 possibility. Finally, he was never charged with anything like that.

4 Mr. McCloskey himself, on a number of occasions, reflected in the

5 transcripts and during the examination of military expert Lackovic, as

6 well as in writing in their response to a Defence 98 bis motion, asserted

7 or confirmed that Dragan Jokic was not being charged with having issued

8 orders or having had command responsibility as described in Article 7(3)

9 of the Statute.

10 I would like to say something else at this point. Yesterday, yet

11 again, using the same arguments and invoking the testimony of members of

12 the engineers company, my learned friend and colleague Mr. Waespi says

13 here is evidence that Dragan Jokic did in fact issue orders. You're not

14 charging me with having issued orders. You're not charging me with having

15 command responsibility, yet you are trying to get this back in through the

16 back door, in a manner of speaking.

17 Again, we must reiterate this, Your Honours. Dragan Jokic had no

18 power to issue orders. He could only convey orders. If you look at all

19 this evidence, that is what you will find, that and nothing else.

20 This is a good opportunity to repeat that direction is a function

21 of the armed forces, providing guidance for individuals and the armed

22 forces as a whole in carrying out certain objectives and tasks. Direction

23 is a broader concept than command. It subsumes, among other things,

24 command, the concept of command. Therefore, if both in the indictment and

25 in the sentence we choose to retain that Dragan Jokic was directing, then

Page 12533

1 this would seem to entail the powers of command, but he was never charged

2 with that in the first place.

3 According to the instruction on the work of command and staffs in

4 paragraphs 3 and 4 of this Rule - it is a Rule that we used as both a

5 Prosecution and Defence exhibit - these paragraphs define the concept of

6 direction in such a way that it clearly emanates that de jure Dragan Jokic

7 could never have directed the engineers company.

8 Your Honours, in July 1995, the engineers company of the Zvornik

9 Brigade had its own command structure. It had its own company commander.

10 It had its own deputy company commander as well as platoon commanders.

11 The system of singleness of command and subordination was undoubtedly

12 functioning in the Zvornik Brigade at that time.

13 Under paragraph 25 of the combat rule for companies and platoons

14 in the engineering branch, and you have had occasion to familiarise

15 yourselves with this rule, it was a Defence Exhibit, an engineers company

16 can only ever be commanded by the company commander. He is in charge -

17 and we see it clearly stated in that rule - of planning, directing,

18 organising, and monitoring all the activities of the engineers company.

19 This is clearly stated in the rules. And yet we are here holding the

20 chief of engineers accountable.

21 In terms of command, his direct superior is the brigade commander,

22 whereas the commander of an engineers company uses his daily orders. And

23 these daily orders are command documents to exercise sole command, I

24 repeat, sole command and direction over the engineers company. His powers

25 of command are not absolute. These powers must remain within the

Page 12534

1 framework of the orders given by the brigade commander.

2 In practice, it works like this: The brigade commander, having

3 obtained the opinion of the chief of engineers, issues an order on the use

4 of the engineers company. This order is a component part of the brigade

5 commander's daily order. Pursuant to this order of the brigade commander

6 and in line with the principle of the singleness of command, the commander

7 of the engineers company uses his daily order, and, Your Honours, you have

8 seen these Prosecution exhibits, the daily orders. So he uses his own

9 daily order to elaborate on the order given by the command are and then

10 proceeds to allocate specific duties to members of the engineers company

11 or, indeed, its platoons.

12 When speaking about these daily orders of the commander of the

13 engineers company, and these were invoked by the Prosecutor both in their

14 final brief and their closing argument in order to prove Dragan Jokic's

15 responsibility, one sees that these were all signed by the company

16 commander. Well, then, it must be clear who this document belongs to or

17 who it was produced by.

18 Both the Prosecutor and the Defence know full well that these

19 daily orders were even written post facto, only after all these events.

20 However, what we are trying to say is the following: A daily order is a

21 document produced by the commander of the engineers company. Then it must

22 be clear that Dragan Jokic's signature is simply nowhere to be found on

23 those documents. What we do find is the signature of the commander of the

24 engineers company. And the only logical conclusion that follows from that

25 is that the document was produced by whoever signed it. It is a command

Page 12535

1 document.

2 Pursuant to the instruction on the work of commands and staffs,

3 and pursuant to the rule on the use of the engineers branch, and these are

4 exhibits, Your Honours, that have been used by both the Prosecutor and the

5 Defence, Dragan Jokic as chief of engineers - I'm talking about his duties

6 as chief of engineers - he draws up a plan of the engineers security and a

7 map of mine explosive obstacles within the zone of responsibility of the

8 Zvornik Brigade. Had these documents been found to be inaccurate or

9 wanting, then he would be the one held responsible before this Tribunal.

10 But he can't be held responsible for the daily orders produced by the

11 company commander. That is not a document that was produced by him.

12 However, these documents were not invoked during the trial simply

13 because no such documents were produced, which clearly goes to confirm and

14 corroborate the fact that Dragan Jokic had no part in planning this

15 operation in the zone of responsibility of the Zvornik Brigade, nor was he

16 involved in any kind of activity related to the burials of victims. This

17 is further confirmed by the OTP's own military analyst, Mr. Butler, on

18 page T5306 of the transcript, where he claims that he found no document

19 that would prove that the use of the engineers branch was planned for the

20 burials.

21 I would like to remind you yet again, Your Honours, that there was

22 material evidence. I refer to an attendance list for the command of the

23 Zvornik Brigade in July 1995. This was a Prosecution Exhibit. What

24 emanates from that exhibit is that on the 12th of July, Dragan Jokic was

25 not in the Zvornik Brigade at all. He was elsewhere. On the 13th of

Page 12536

1 July, Dragan Jokic is going about his regular duties. He's doing what God

2 allows him to do. He prunes trees, cherry trees and apple trees in order

3 to provide timber for the soldiers to light a fire and to keep warm. He

4 has no idea what at that time is going on inside the heads of some people

5 who are plotting the execution of thousands of people. Dragan Jokic could

6 not have been further from that.

7 On the 14th of July, with no previous planning, and we know why,

8 Dragan Obrenovic calls him over to take over his duty. Why? Because

9 Dragan Obrenovic, on the 13th of July, as he admits himself, knows what

10 would be going on in the zone of responsibility of the Zvornik Brigade.

11 Therefore, when we speak about directing the engineers company,

12 this whole debate merely goes to show that Dragan Jokic under no rule that

13 exists could, de jure, have been directing the engineers company. The

14 Prosecutor has presented no material proof. They have not produced a

15 single witness that could confirm beyond reasonable doubt that Dragan

16 Jokic had the powers or the authority to direct the engineers company.

17 Any other ruling of the Court to the effect that Dragan Jokic did

18 direct the engineers company would be contrary to these regulations that

19 we have invoked, regulations defining his position. Moreover, it would be

20 contrary and fly in the face of material evidence confirming that on that

21 day, there was no doubt that the system of singleness of command and

22 subordination did, in fact, work smoothly in the Zvornik Brigade.

23 If I wish to remain objective, which I do, the logical question

24 would be to ask what, then, was Dragan Jokic doing in his capacity as

25 chief of engineers? The Defence does not challenge the fact that he was a

Page 12537

1 staff officer, that he was chief of engineers, or that he was directly

2 subordinated to the chief of the Zvornik Brigade, Dragan Obrenovic. The

3 de jure definition of his position and duties is enshrined, first of all,

4 by paragraph 120 of the rule on brigades, which is Prosecution

5 Exhibit P83, stating that the branch organ in the brigade is a technical

6 organ advising on the most effective use of units belonging to the

7 different branches, so that the brigade as a whole could complete its task

8 in the best possible way.

9 The chief of engineers is the one who advises the commander and

10 makes proposals on the use of the engineers units, but he does not direct

11 the engineers unit.

12 The next set of regulations defining the position of Dragan Jokic

13 as chief of engineers is the rule on the use of engineers, which is

14 Defence Exhibit D23, which we refer to as the lex specialis in relation to

15 the chief of engineers. Paragraph 40 contains a detailed index of the

16 duties and powers of the chief of engineers.

17 This is no need for us to quote this rule again because the rule

18 is available to the Honourable Trial Chamber. However, the rule spells

19 out in no uncertain terms that the chief of engineers cannot direct the

20 engineers company, particularly if an organised command structure is in

21 fact in place within the engineers company.

22 The third document defining the position of the chief of engineers

23 is the rules governing the competences of commanders from brigade to

24 regiment level. This is a Defence Exhibit, D72/3. In paragraph 69, it

25 states that branch organs enjoy all the rights of a superior officer in

Page 12538

1 relation to units belonging to their branch. And now I must emphasise.

2 It goes on to state "except the right to use them." They have no right to

3 actually use the unit. Is there anything more direct that we can say?

4 All these exhibits clearly describe the position of Dragan Jokic

5 as chief of engineers. They indicate clearly that de jure, and later on

6 we will go on to discuss de facto, but de jure he could absolutely not

7 direct the engineers. Had Dragan Jokic taken on greater authority than

8 provided for in the rules, he would either have been acting as a renegade

9 commander violating the rules of singleness of command and subordination,

10 and I assure you that he could never have done this or would never have

11 dared to do this in the presence of Pandurevic, Obrenovic, and the others,

12 or this would have been behaviour for which Dragan Jokic would have had to

13 have special authorisation from the brigade commander, and this would have

14 had to be in writing.

15 We are now coming to the evidence adduced by the Prosecution.

16 They say yes, that is how it is de jure, but it's not like that de facto.

17 De facto he was able to direct the troops. And they refer to a segment of

18 the Dragan Obrenovic's testimony when he said that Vinko Pandurevic, as

19 brigade commander, orally told Dragan Jokic that he could take on certain

20 competences in commanding the engineers company because the commander of

21 the engineering company, Dragan Jevtic, had no military training.

22 This argument -- or, rather, this thesis of Dragan Obrenovic's is

23 not corroborated by single shred of evidence produced by the Prosecution.

24 All we have is Obrenovic's statement. Moreover, the military expert of

25 the Prosecution, Mr. Butler, on the record of the 24th of November, I

Page 12539

1 remember it was in the afternoon in Courtroom II, on page 5239 confirmed

2 this and said there was no written order in existence on the transfer of

3 authority from the commander of the engineers company to the chief of

4 engineers. This same military expert says that such a transfer of

5 authority, in his view, would have had to be in writing, because it takes

6 away the prerogatives of command from the commander of the engineering

7 company. It is contrary to the rules, and for this reason the commander

8 of the engineers company would have had to have been informed of it.

9 Your Honours, we have had occasion to hear the testimony of

10 Witness Minja Radovic. He was the commander of the engineers company from

11 1992 to early June 1995. As commander of the engineers company, he

12 said, "No one ever took away from me, as a commander, my authority to

13 command. Dragan Jokic could not have issued orders to me. He could only

14 have conveyed orders." He said, "In the engineers company I had greater

15 authority than Dragan Jokic did." Where is the evidence to corroborate

16 Obrenovic's statement?

17 Perhaps now is the time, Your Honours, to remind you that we heard

18 testimony corroborating that Dragan Jevtic who was then commander of the

19 engineers company and with whom I mention with respect, was not a common

20 private in the JNA. He was a company leader. In his civilian life, he

21 was a civil engineer. He had a university degree, and he was better

22 equipped than Dragan Jokic to know how, in what way to use building

23 construction machinery.

24 His deputy, Slavko Bogicevic, was a mechanical engineer in his

25 civilian life, which means that he was also fully trained and equipped to

Page 12540

1 supervise the operation of building construction machines.

2 Therefore, there is not a shred of corroborating evidence to

3 support Obrenovic's statement.

4 Secondly -- the second point I wish to make to show that what

5 Obrenovic said was not true is the following: If the brigade commander

6 transferred command authority over the engineers company to Dragan Jokic,

7 had he done this, the daily orders of the engineers company commander

8 would have been signed by the chief of engineers, because he would also

9 have been the commander of the engineers company. But they were not

10 signed by him, Your Honours. You have them before you. They were signed

11 by the commander of the engineers company. Why? Because he was the one

12 commanding the engineers company. Even when he came back from the front

13 line, he signed these orders retroactively. Dragan Jokic did not sign any

14 of them.

15 There is no evidence that this authority was ever transferred to

16 Dragan Jokic. There is not a single argument to support Dragan

17 Obrenovic's thesis.

18 As for the quality and truthfulness of the Dragan Obrenovic's

19 testimony, we will return to this in this closing statement.

20 This Defence considers that such testimony and such a witness is

21 not something on which one can found any decision or any judgement which

22 aspires to establish the truth about the events in Srebrenica.

23 If all this is confirmed by Mr. Butler, who I assure you is not

24 kindly deposed towards the Defence, and if he says there is no evidence to

25 prove this, there is no written order on the transfer of authority. If

Page 12541

1 the commander of the engineers company also says this, then the matter is

2 quite clear. Dragan Jokic never took on the authority of commanding the

3 engineers company.

4 Your Honours, look at the situation the Defence finds itself in

5 again. I am constantly bearing in mind your instruction as to the

6 relevance of command authority and who was in command, but I have to

7 defend my client from charges that have to do with command. I am again

8 having to defend Jokic from Article 7(3) of the Statute. This was set out

9 the day before yesterday in the closing argument, although I know that

10 Jokic is not charged with command responsibility. But the final argument

11 of the Prosecutor contains arguments purporting to aggravate the sentence

12 of Dragan Jokic, and this I find very painful.

13 Your Honours, I wish to go on and say that the competencies of the

14 chief of engineers indicate clearly that Dragan Jokic, in view of his

15 character, in view of his personality structure, was not a person who

16 could issue commands. He was an officer of a different type. He gave a

17 personal example. He preferred to carry out the orders of the brigade

18 commander himself rather than convey them to the engineers company.

19 You will remember a testimony here which was very convincing.

20 Witness Branko Mihic said that he was embarrassed to see Vinko Pandurevic,

21 the brigade commander, issuing an order to Dragan Jokic, his staff

22 officer, telling him to dig a trench. And he did so without any

23 objection. This is not an officer with authority to issue orders.

24 Dragan Jokic's duty was to advise the commander or the Chief of

25 Staff on the most effective use of the engineers company, and I cannot

Page 12542

1 deny, and because I wish the truth to be established, I have to say that

2 yes, it was his duty to convey orders, when the commander required him to,

3 to the engineers company. He was duty-bound to take care of the training

4 and equipment of the engineers company. It was the brigade commander,

5 Your Honours, who could either take his advice on the use of the engineers

6 or not.

7 I will remind you of the testimonies of Witness (redacted), the

8 military expert Lackovic, and Butler, who all said that according to

9 paragraph 114 of the guidelines on the works -- on the work of commands

10 and staffs, when there was surprise activities by the enemy during combat

11 or sudden changes in the situation and in other circumstances when there

12 is no time to consult the command organs, the commander can, without any

13 consultation with the chief of engineers, issue an order on the use of the

14 engineers company.

15 Bearing in mind the position of Dragan Jokic, the authority he had

16 with Vinko Pandurevic and his very poor relations with his direct

17 superior, Dragan Obrenovic, situations in which the commander accepted

18 Dragan Jokic's suggestions or advice were rare. Therefore, in the view of

19 this Defence, Dragan Jokic cannot be found guilty of activities entailing

20 the authority to direct the engineers company because he simply did not

21 have the authority to do this.

22 This is the legal framework, Your Honours, regulating the issue of

23 whether the chief of engineers can direct the engineers company. However,

24 we have had quite a lot of evidence here as to the de facto role of Dragan

25 Jokic, and this has been invoked by the Prosecution in their closing

Page 12543

1 argument. I will attempt very briefly, paragraph by paragraph, wherever

2 direction of the engineers is mentioned and Dragan Jokic, to go through

3 this and carry out a synthesis of the evidence invoked by the Prosecution

4 in order to show that Dragan Jokic did not exercise authority to direct

5 the engineers company de facto.

6 Your Honours, this might be a good point to take a break, because

7 I will now move on to talk about the de facto authority and actions of

8 Dragan Jokic.

9 JUDGE LIU: Well, Mr. Stojanovic, we are in your hands concerning

10 the breaks. If you believe that it is now convenient to break now, we

11 will take 30 minutes break, and we will resume at quarter to 11.00.

12 --- Recess taken at 10.14 a.m.

13 --- On resuming at 10.45 a.m.

14 JUDGE LIU: Yes, Mr. Stojanovic. Please continue.

15 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour.

16 Let me remind you that we left off just as I was about to speak

17 about particular paragraphs in the indictment.

18 In paragraph 46.4 of the amended joinder indictment, Dragan Jokic

19 is charged by the Prosecutor with directing the troops, the troops, let me

20 reiterate, of the Zvornik Brigade who participated in the operation of

21 removing and burying the bodies of Srebrenica Muslims in the Kravica

22 warehouse. In support of this claim, the Prosecution produces the

23 statement of Witness P178, who at the time was a member of the engineers

24 company.

25 During his testimony on the 4th and 5th of December, 2003, this

Page 12544

1 witness confirmed that driving a truck, he took part in the transportation

2 of the corpses of Srebrenica Muslims from the Kravica warehouse to the

3 mass grave in Glogova, and that on the 15th of July, in the afternoon, he

4 carried out this task.

5 Well, now, let's try to analyse this piece of evidence which is

6 the only piece of evidence the Prosecution has on the participation of

7 this unit of the Zvornik Brigade. This Prosecution witness says that he

8 was the only one from the Zvornik Brigade who was there working on the

9 transportation of bodies from Kravica to Glogova. So we cannot speak of

10 troops. There is only a private. However, troops are mentioned in the

11 indictment.

12 My second point is: Was Dragan Jokic directing this private of

13 the Zvornik company? I have already said that de jure he neither could

14 have done this nor did he do it. Did he do it de facto? In the view is

15 of the Defence, he did not. This is the only conclusion that can be drawn

16 from this evidence.

17 Why do I say this? It was precisely this witness, Prosecution

18 Witness P178 who said, "On the 14th of July, 1995, Dragan Jokic instructed

19 me to report to the civilian protection in Zvornik where I would take the

20 truck because it was necessary for me to spend several days on the ground

21 cleaning up the town of Srebrenica." This witness confirms that knowing

22 Dragan Jokic well and being familiar with his position in the brigade, it

23 was quite clear to him that this decision on him being sent and put at the

24 disposal of the Zvornik civilian protection - I'm referring to the witness

25 and the truck - that this decision could not have been made by Dragan

Page 12545

1 Jokic. I quote the witness. He said, "I and the truck were put at the

2 disposal of the civilian protection, and this had to be done through the

3 brigade. It had to go through the superior officers of the brigade."

4 This is transcript page T5693, Your Honours.

5 After this witness reported to the civilian protection in Zvornik,

6 and after having spent some time in front of the municipal building in

7 Zvornik together with Arsen Krunic, Dragan Mirkovic, and Rajko Djokic, who

8 were members of the Zvornik civilian protection or the republican civilian

9 protection staff of Republika Srpska, he went to Bratunac where the three

10 of them spent the entire afternoon. And then Rajko Djokic told him he

11 could not go to Srebrenica because it would not be safe for them to clean

12 the streets of the town until the remaining mines were removed. He spent

13 the night in a hotel, and on the afternoon of the 15th, a day and a half

14 after having spoken to Jokic, after the meeting of the civilian protection

15 in Bratunac had ended, a member of the civilian protection took him to the

16 village of Kravica without telling him what he was to do there.

17 On his arrival in Kravica, he was told that he had to transport

18 these corpses. He did this, and there were other members of the Bratunac

19 civilian protection working on the same assignment. And in the evening,

20 he conveyed to Rajko Djokic, who on the previous day had told him that it

21 was not possible to enter Srebrenica, he told him that he did not wish to

22 participate in this job. Rajko Djokic, whom you were able to hear

23 testifying here, corroborated this and said, "We didn't come there to do

24 this kind of job. We're abandoning this job." And on the 16th of July,

25 1995, in the morning, they left Bratunac.

Page 12546

1 Witness P178, as mentioned by the Prosecution in their closing

2 argument, said that on the 17th of July he spoke to Dragan Jokic and told

3 him what he had been doing. What did Jokic reply? I repeat this. He

4 told him that he had conveyed to him the order - and this is what we are

5 not challenging - to go and carry out a completely different task, not the

6 task that he was assigned by the civilian protection in Bratunac.

7 This witness directly states that Dragan Jokic could not assign

8 any member of the engineers company without the knowledge and approval of

9 the brigade commander or of the engineers company commander. He could not

10 give him any assignment or give him leave. He could only convey an order.

11 And this follows clearly from the testimony of this witness who confirms

12 this on page T5693.

13 Your Honours, where in all this is Dragan Jokic? Where do we see

14 him directing Witness P178 to do the work in Kravica? The answer is

15 clear. Dragan Jokic is not present in this activity. He only conveyed

16 the order that the witness should go to the Zvornik civilian protection

17 and report together with the vehicle he was driving. From there, others

18 sent him to Bratunac. The day after that, it was a third set of people

19 who directed him to go to Kravica.

20 This witness says, when questioned by the Prosecutor, "I did not

21 contact Dragan Jokic. It was not possible for me to contact him in those

22 few days. My first meeting with Jokic after this was on the 17th." He

23 said, "I was sent to clean up Srebrenica, not to transport corpses. I do

24 not wish to be an undertaker." And he left that assignment on the

25 following morning. He abandoned it.

Page 12547

1 Let's look at the remaining -- at the other evidence. After your

2 98 bis decision, Witness Rajko Djokic was examined. You will remember

3 him. He was an elderly man, a teacher, and everything that Witness P178

4 said, he corroborated. Moreover, this witness confirmed that he was

5 superior to P178, not Dragan Jokic. You can see this on pages 11898 and

6 11899 from his examination. He was the one who said he was in charge. He

7 was the one who was superior to Witness P178.

8 Do we have any other evidence about this? Yes. Defence witness

9 for Mr. Blagojevic, P501, who was chief of the civilian protection --

10 THE INTERPRETER: Interpreter's apology, D101.

11 MR. STOJANOVIC: [Interpretation] D101 also speaks about these

12 sanitisation activities, and he says that it was the civilian protection

13 of Bratunac that was in charge of this task.

14 Finally, bearing in mind the rules regulating resubordination,

15 then it is clear that Dragan Jokic cannot direct the activities of soldier

16 P178 at the Kravica warehouse. Both military experts, that is to say both

17 Mr. Butler as a Prosecution expert, and Mr. Lackovic as a Defence expert,

18 confirm that a soldier who is resubordinated to another unit or another

19 military or civilian structure, from the point of view of discipline -

20 discipline is the word that Mr. Butler used - he reports to the officer

21 that he had been resubordinated to, or, rather, the unit that he works for

22 at that point in time and not to the officer of the -- the commanding

23 officer of the unit that he came from.

24 Your Honours, you can read that on page 5225 of the transcript of

25 Mr. Butler's evidence, and from Mr. Lackovic on page 12133 and 12134.

Page 12548

1 To put it in very simple terms, if as a commanding officer

2 officer, I send a soldier to another unit to carry out a particular

3 assignment and then in the other unit he gets a new assignment which is

4 indeed a war crime, I am not the one who is held responsible. The person

5 who gave him that task is held responsible from the point of view of

6 discipline. That is proof and evidence as far as paragraph 46.4 is

7 concerned. There is no other evidence.

8 Attempts had been made here through travel forms, travel

9 authorisation forms, et cetera, to say that this witness was in Orahovac

10 at that time. That, quite simply, is not true. On the -- that this

11 witness was in Orahovac on the 14th. No. They say this witness was in

12 Kravica. And what the travel form said was only for the sake of fuel. So

13 I don't want to make the establishment of the truth any more difficult

14 than it is, because the situation is clear cut.

15 Also, Your Honours, Witness 178, Witness P101, Witness Rajko

16 Djokic, the experts, Mr. Butler, that is, and Mr. Lackovic, and the

17 regulations I referred to earlier on confirm that Dragan Jokic, from the

18 point of view of paragraph 46.4 of the indictment, is not involved in

19 directing either soldiers -- or, rather, troops, as the indictment says,

20 or a soldier from the engineering company of the Zvornik Brigade in the

21 transport of the corporations from Kravica to the mass grave in Glogova.

22 Therefore, I ask you, Your Honours, precisely for those reasons,

23 because I don't know of any others, reject the factual basis of 46.4 --

24 paragraph 46.4 of the amended rejoinder indictment of Dragan Jokic.

25 Let us move further on. Paragraph 46.6 of the indictment says

Page 12549

1 that Dragan Jokic directed the members of the engineering company when, on

2 the 14th and 15th of July, 1995, they used heavy equipment to bury the

3 victims of mass executions in mass graves at execution sites themselves.

4 What is it that the Prosecution put before the Trial Chamber in

5 order to corroborate this? The statement of Cvijetin Ristanovic, a member

6 of the engineering company. And as for material evidence, travel forms

7 and also the daily orders of the engineering company.

8 Let us analyse this evidence. We continue to assert de jure,

9 according to regulations, Dragan Jokic does not direct the engineers.

10 Does he direct Cvijetin Ristanovic at that point in time? This Defence

11 says, and we will dwell on the subject more later on as well, Dragan

12 Jokic, in the afternoon of the 14th of July, is not aware that the

13 prisoners in Orahovac will be executed, and in that sense, he could not

14 have participated in this crime. As for whether he had knowledge, we

15 shall speak about that further on. Now we're just saying that he was not

16 engaged in direction.

17 Witness Cvijetin Ristanovic, in his testimony on page 5406

18 and 5407, says that at one point in time on the 14th of July, Dragan Jokic

19 came to the engineering and told him to go to the school in Orahovac and

20 to take on the platform trailer the excavator 07 and to take it to the

21 school in Orahovac. This witness says that on that occasion, "Dragan

22 Jokic did not tell me what I was supposed to do there." Further on, he

23 says that he did come to the school in Orahovac, that that is where he

24 found some trucks that were turning around. Also, there were soldiers in

25 camouflage uniforms and military police, that he did not know which unit

Page 12550

1 they belonged to. At one point in time, he was told to go on to the

2 fountain which was about one kilometre away from the school.

3 Your Honours, you were on site yourselves, and you saw where the

4 school is and where the fountain is. That fits into what the witness has

5 been saying.

6 This witness says, to the best of his recollection, that that is

7 where the deputy commander of the engineers company was, and that he

8 issued him an order to go underneath the flyover. You remember the

9 flyover, don't you? And he indicated to him the spot where the pit was

10 supposed to be dug. That is what he did.

11 At one point in time while the pit was being dug, unknown soldiers

12 and officers told him to stop doing that and to go away for a while.

13 Precisely it is at that moment that the execution of the Srebrenica

14 victims started.

15 This witness says further on, the following day, the 15th, in the

16 morning, he received an order again from his platoon commander - note

17 that, his platoon commander - to go to Orahovac and to continue digging

18 the pit. This platoon commander went with him to Orahovac, and that is

19 where he came across several people from the civilian protection and from

20 the Zvornik public utility company, and they were burying the bodies in

21 the graves that they had dug.

22 This witness confirms that not a -- not at a single point in time

23 did he see Dragan Jokic in Orahovac. Also, he was adamant in his claim

24 that Dragan Jokic had not said anything to him on the 14th of July in

25 terms of what he was supposed to do in Orahovac. That is the testimony of

Page 12551

1 that witness.

2 The daily orders book that we already referred to of the commander

3 of the engineering company refers to that and confirms what this witness

4 said, that the excavator, and now for the transcript BGH700, on that day,

5 the 14th of July, 1995, was working in Orahovac. Also, the vehicle

6 records or log sheets that the Prosecution uses also confirm this fact.

7 The Defence is not denying that either. It is correct that on that day,

8 this machine, regardless of whether it was called BGH700 or RD700, that is

9 of lesser importance, but this machine was in Orahovac, and it was working

10 on the big -- on the digging of these pits or graves. But where is there

11 evidence of Dragan Jokic directing of the -- directing the members of the

12 engineers company in Orahovac? The answer is that Dragan Jokic is not

13 there and that there is no evidence to that effect. Dragan Jokic could

14 only convey, as duty operations officer, convey, yet again, convey only

15 the order of the Chief of Staff, Dragan Obrenovic, that this engineering

16 machine be sent to Orahovac.

17 Dragan Obrenovic himself admit that precisely on that day, the

18 14th of July, he let two machinists go from the positions on Snagovo, on

19 that day. You have that in his plea agreement, Your Honours. Because he

20 knew that they were supposed to go to Orahovac to dig and to bury the

21 killed persons. He admits that.

22 Obrenovic also admits that already on the 13th of July, in the

23 evening hours, he had received information that a large number of

24 prisoners of war would be brought to the zone of defence of the Zvornik

25 Brigade and that they would be killed. He admits that he accepted and

Page 12552

1 supported that activity and that he made the resources of the Zvornik

2 Brigade available for this operation. Where is Dragan Jokic there?

3 As the witness says, he conveyed the order to Witness Cvijetin

4 Ristanovic to take the BGH to the school in Orahovac. Does Dragan Jokic

5 know what is supposed to happen in Orahovac at that point in time? There

6 is already historical information that the executions started in the

7 afternoon. The Prosecution did not proffer such evidence, and we are

8 going to refer to that later on, to a particular statement related to this

9 matter.

10 This same Prosecution witness confirms that the order, in terms of

11 what he was supposed to do in Orahovac, he received from the deputy

12 commander of the engineering company on the 14th of July, and what he was

13 supposed to do on the 15th of July was what he heard through orders from

14 his platoon commander. This is direct evidence that the system of command

15 and control in the engineering company of the Zvornik Brigade was fully

16 operational on the basis of the principle of subordination at that.

17 Obrenovic, the deputy commander of the engineering company, the

18 platoon commander, and then ultimately the soldier who carries this out.

19 It is as clear-cut as can be. Nobody is denying that.

20 By the way, Cvijetin Ristanovic is not the operator of that

21 excavator, and he is not the machinist for BGH700. It was Milovan

22 Miladinovic who was in charge of this machine. So he is the only one who

23 could have received orders to operate the machine, which is indeed what

24 happened on the afternoon of the 14th. Cvijetin Ristanovic does testify

25 about that. That is precisely the reason why Dragan Obrenovic let this

Page 12553

1 operator, this machinist, go for Snagovo to Orahovac. Obrenovic knows who

2 is in charge of that machine, and that is Miladinovic.

3 The daily order of the engineering company to send the excavator

4 to Orahovac was signed by the commander of the engineering company, not

5 Dragan Jokic. This confirms yet again that Dragan Jokic cannot de facto

6 direct the engineering company or issue any orders to that effect.

7 If I'm guilty because I conveyed an order which does constitute a

8 crime, if the crime is digging pits for persons to be buried in, then I

9 have to have knowledge of that. I have to have mens rea to the effect

10 that I am conveying an evil order.

11 We are going to deal with this later on as well, Your Honours. I

12 have not omitted that.

13 When the Prosecution says in paragraph 46 of the indictment

14 members of the engineering company buried the victims of the mass

15 executions, that is quite pretentious. It says in paragraph 46 that it

16 was members who -- of the engineering company who buried them. But that's

17 not what the engineering company did. That is what witnesses have

18 attested to as well. This is something that many persons took part in.

19 This same Prosecution witness says that burials were carried out

20 by the members of the civilian protection of Zvornik and the public

21 utilities company of Zvornik, and that it is true that he participated in

22 the burial operation, too, by operating the machine that was actually

23 digging the hole itself.

24 Why am I saying this? This is a very hard story. I simply would

25 like you to realise that the operation of burial was not only under the

Page 12554

1 engineers company. The public utilities company took part in it, the

2 civilian protection, the logistics people of the Zvornik Brigade, and the

3 engineers.

4 Can Dragan Jokic direct all these structures, all these

5 participants? He cannot. That's what Mr. Butler says too. That is what

6 Mr. Lackovic says. Only a person with far greater authority can direct so

7 many different participants. It is only the commander of the brigade or

8 the Chief of Staff or perhaps the assistant commander for logistics, as

9 Mr. Butler says. Only they could do that. However, wherever the machine

10 appeared in the zone of the Zvornik Brigade, there is invariably reference

11 to Dragan Jokic. That is the way the indictment against Dragan Jokic was

12 conceived.

13 On the basis of all the above, if we try to make a synthesis of

14 all this evidence, if we look at all these pieces of evidence individually

15 or accumulatively, we cannot come to a different conclusion but one, and

16 that is that Dragan Jokic did not direct the engineering company in the

17 operation of the burial of the victims in Orahovac. Hence, this factual

18 allegation from the allegation, in our modest opinion, should be rejected.

19 As far as paragraph 46.8 of the indictment is concerned, Your

20 Honours, what we believe is spelled out in even more radical terms. It

21 says that he directed the engineers company and that he, together with

22 other individuals, used an excavator and other heavy machinery to bury, on

23 the morning of the 15th, the victims of the mass execution near the

24 Petkovci dam in the zone of defence of the Zvornik Brigade.

25 You had the opportunity of seeing the actual site. It looks quite

Page 12555

1 horrifying until the present day. We also had the opportunity of hearing

2 the testimony of a survivor of that execution here, and this was very

3 hurtful testimony. It was very hard. It is very hard on all of us who

4 are engaged in this job of the Defence, that we should not act in haste,

5 that we should not overstep in any way.

6 The witness says yes, the construction machine which was there,

7 and the Prosecution uses that. Is there more evidence about that? The

8 Prosecution says yes, there is material evidence. The daily orders of the

9 commander of the engineers company, that two machines, the ULT220 and the

10 excavator, on that day, the 15th of July, operated in Petkovci.

11 This Defence wishes to analyse this once again, Your Honours. I

12 cannot deny the fact that certain construction machinery was there at the

13 time. That would be senseless. But I can challenge that these machines

14 belong to the engineering company, and that is what I wish to say here.

15 First of all, in this daily order there is reference to the ULT220

16 construction machine. Again, the daily order was signed by Dragan Jokic.

17 The daily order was signed by the commander of the engineering company.

18 That is his order.

19 Just for the transcript, let me repeat: The daily order was not

20 signed by Dragan Jokic. It was signed by the commander of the engineering

21 company.

22 Who operated these machines? Were they members of the engineers

23 company? The Prosecution did not adduce any evidence to that effect.

24 Can the machines operate on their own? They cannot. Who is

25 operating these machines? This Defence says, although the burden of proof

Page 12556

1 lies with the Prosecution, that these machines were operated by persons

2 who were civilians. These were machines that were mobilised from civilian

3 life, Your Honours.

4 As these machines were mobilised, Dragan Jokic had nothing to do

5 with that whatsoever. You heard the testimony of military experts here,

6 that is to say Mr. Butler and Mr. Lackovic. They confirm that the

7 mobilisation of machines is carried out by the department of the Ministry

8 of Defence of the municipality of Zvornik at the proposal of and at the

9 request of the commander or Chief of Staff of the Zvornik Brigade. This

10 is also confirmed by witnesses, Minja Radovic, who was commander of the

11 engineers company of the Zvornik Brigade, and Witness Tesic Aleksandar,

12 the witness of the Defence who was head of defence in Bratunac.

13 So we do not have any evidence before this Honourable Trial

14 Chamber about who operated these machines. We have other evidence, a

15 summary of the engineers' activities, the Defence Exhibit 12/3, where we

16 find all the machines and all the equipment available to the engineers

17 company described in detail. It clearly shows that there is no such

18 machine available as a ULT220. So where did it come from, and how could

19 Jokic possibly have been in charge of this particular piece of machinery?

20 There is no answer to that. It's sufficient to have a theory that Jokic

21 was directing the engineers, that this was a machine which belonged to the

22 engineers company, that it was in a daily order of the engineers company,

23 and this should be quite sufficient to conclude that Jokic is guilty.

24 Your Honours, the Defence believes that this is not possible. No

25 one ever saw Jokic anywhere near that place.

Page 12557

1 There was another piece of machinery in the daily order, an

2 excavator. Your Honours, according to the same summary, an overview that

3 was provided to us by the OTP, the engineers company only had one

4 excavator, the BG700. On the 15th of July, this excavator was in

5 Orahovac, which was confirmed by Cvijetin Ristanovic who was actually

6 operating this piece of machinery. How then could this piece of machinery

7 be in Petkovci at the same time? Well, it wasn't. There was a different

8 machine that was there that had been mobilised from a civilian structure

9 who had mobilised those machines and who had sent them to Petkovci. A

10 person knew what was going on in Petkovci and who was aware of the crimes.

11 And I'm telling you it is P130, Witness P130. Only time will show how

12 exactly this unfolded. But, Your Honours, one thing is for sure, Dragan

13 Jokic is nowhere to be found.

14 Therefore, the Prosecutor has provided no evidence beyond

15 reasonable doubt that the machines belonging to the engineers company or

16 its members were indeed involved in the burials at Petkovci. What's more,

17 they could certainly not offer any evidence that Dragan Jokic, in his

18 capacity as chief of engineers, during the night between the 14th and 15th

19 of July and on the morning of the 15th, while he was on duty as the

20 operations duty officer back at the brigade, that he was indeed in charge

21 of that engineering operation. Too many things being said about Dragan

22 Jokic.

23 Perhaps this is a good opportunity, Your Honour, following this

24 analysis of Dragan Jokic's de facto role in the events at Orahovac and

25 Petkovci, to reiterate a position of the Defence, a position that we have

Page 12558

1 presented a number of times throughout the trial.

2 While an officer is on duty as an operations duty officer, all his

3 other functional duties cease to apply, the duties that he had abandoned

4 once he took over his duty as the operations duty officer.

5 Two days ago in their closing argument, the Prosecution rejected

6 this theory, and they also rejected this theory in their final brief.

7 What do they state in support of their own position? They cite parts of

8 certain daily orders and the testimony of Witness Cvijetin Ristanovic and

9 Witness P178 as well as the intercept dated 2110 hours, the 14th of July,

10 1995. However, we are adamant that none of these allegations made by the

11 Prosecutor are in any way sufficient to deny the simple fact that in

12 compliance with the regulations and according to what the actual state of

13 affairs was, it was impossible for Dragan Jokic to discharge both duties.

14 What do the regulations tell us about this? Paragraph 202 of the

15 rules on service in the armed forces. This is Defence Exhibit D71/3 state

16 as follows: I will quote this because it is a single sentence: "The

17 organs of internal service, and this is also applies to the duty

18 operations officer cannot, cannot while on duty discharge other activities

19 that are not related to their duty."

20 This is as clear as possible by way of an answer. The rule is

21 crystal clear. I am the duty operations officer. Therefore, I cannot

22 discharge any other functional duties.

23 The military expert, Dragoslav Lackovic, in his written report

24 states that Dragan Jokic's takeover of duty as duty operations officer on

25 the 14th of July, 1995 virtually meant that he was receiving a short-term

Page 12559

1 transfer to a different duty, and he could not at the same time act as

2 chief of engineers. Accordingly, the Prosecutor must decide what they're

3 charging Dragan Jokic with on the 14th and 15th of July. Are they

4 charging him in his capacity as duty operations officer or in his capacity

5 as chief of engineers? That is as long as we wish to abide by the rules.

6 Once we choose not it abide by the rules, we can go on to deal with the

7 de facto situation.

8 What follows from this theory of the Prosecution is that their

9 selection of charges was rather poor. "We'll charge wherever we think we

10 can." It is up to the Chamber to pick the charges that are eventually

11 proved beyond reasonable doubt. Based on all the evidence that we have

12 produced, this Defence still believes, and there haven't been so many

13 different sets of evidence because virtually both the Prosecutor and the

14 Defence are speaking about the same things, based on all of that, there is

15 not sufficient evidence to prove beyond reasonable discount that the

16 engineers company or the members of the engineers company were involved in

17 the burials alongside with other individuals and other units at the

18 Petkovci dam. In particular, there is no proof that Dragan Jokic was

19 directing this operation.

20 This allegation from paragraph 46.8 of the amended joinder

21 indictment must, therefore, also be rejected.

22 As for paragraphs 46.9, 46.10, and 46.11, they refer to the

23 burials of victims near the Kula school, the cultural centre at Pilica,

24 and the military farm at Branjevo. We have visited all these places, and

25 yet in all three of these paragraphs in the indictment it is stated that

Page 12560

1 the engineers company, alongside with other individuals and units, took

2 part in the burials by digging the graves, and it is stated that Dragan

3 Jokic was directing their work.

4 What is the OTP's evidence to prove that Dragan Jokic did de facto

5 direct this operation? Again we have Cvijetin Ristanovic's testimony. We

6 have Drazen Erdemovic's testimony. We have the testimony of Witness P130.

7 We have material evidence. We have vehicle records and log sheets, and

8 again a daily order from the commander of the engineers company. Finally,

9 we have the logbook containing the entries made by the duty operations

10 officer, Prosecution Exhibit P133 in relation to the 16th.

11 Your Honours, let us try to sum this up and analyse it as briefly

12 as possible. We shall not address all the details, all the allegations

13 and all the statements of these witnesses which we have already commented

14 on in our final brief, but we do wish to point out a number of essential

15 facts.

16 On the 16th of July, 1995, when the burial of victims at the

17 Branjevo Military Farm took place, no one saw Dragan Jokic there. No one

18 ever said they did. None of the members of the engineers company, and we

19 do know that Cvijetin Ristanovic was there, because that's what he

20 testified, none of them have actually confirmed that Dragan Jokic was the

21 one who sent them to Branjevo. Quite the contrary. We have a Prosecution

22 witness, Cvijetin Ristanovic, who clearly says that he had received the

23 order to go to Branjevo from his own platoon commander of the

24 engineering -- of the engineers company, and that this platoon commander

25 was, in fact, present when the mass grave was being dug. That is what the

Page 12561

1 witness stated. You can read that on pages T5389 and again on pages T5418

2 and T5419. He did not see Dragan Jokic, nor did Dragan Jokic issue any

3 orders to him or indeed convey to him an order that he should go to

4 Branjevo.

5 This fact is confirmed by the OTP's military expert, Mr. Butler,

6 who says that during years of work in this case, he never found any

7 evidence showing that Dragan Jokic was present at these places where the

8 burials took place between the 14th and the 18th of July, 1995. He claims

9 to have found no evidence whatsoever to that effect. This is on

10 page T5212 of the transcript, Your Honours.

11 Prosecution witnesses that were heard confirmed that Dragan Jokic

12 was not in any way involved with the engineering machines at Branjevo. So

13 where was Dragan Jokic, Your Honours?

14 On that day, the 17th of July, 1995, he was at the other end of

15 the zone of defence of the Zvornik defence. He was linking up the lines

16 and controlling the minefield in an area called Gresnik. This may be a

17 symbolical thing. Gresnik in B/C/S means sinner. Again, we see Dragan

18 Jokic going there to do the work of an ordinary soldier, controlling the

19 minefield, and he was not alone with this. Also involved were the members

20 of the pioneers platoon of the engineers company, and we heard Brano

21 Djuric's testimony to that effect.

22 As a foot soldier, he's there with the members of the engineers

23 company involved in this kind of work. At the same time there is someone

24 else who is coordinating, who is issuing orders, and who is digging the

25 pits at Branjevo. And then we have the indictment that tells us

Page 12562

1 everything was done under the direction of Dragan Jokic. No, it wasn't.

2 There is no other possible answer.

3 The daily order of the commander of the engineers company, I must

4 come back to this because the Prosecutor seems to be constantly referring

5 to it. This daily order tells that the excavator went to Branjevo. We

6 are not disputing that. The excavator was there operated by Cvijetin

7 Ristanovic, and pursuant to the same order, his commander was there too.

8 Again, who signed this daily order? The company commander did,

9 not Dragan Jokic. How, then, could Dragan Jokic possibly have been in

10 charge or directing that? And there is no answer. And the OTP provides

11 no answer.

12 If I may draw your attention to another bit of evidence referred

13 to by Mr. Waespi, the testimony of Witness P130 and his alleged entry in

14 the duty operations officer's logbook in relation to the 16th of July,

15 1995, where he states that there have been requests from the 1st Infantry

16 Battalion to have a truck and an excavator secured for the next day. What

17 happens then? P130 makes a note to the effect that Dragan Jokic should

18 be, in the future tense, informed and Sreten Jokic [as interpreted] about

19 this request. Even if this was the case, what did that mean? Did he

20 eventually inform them about that or not? Did Dragan Jokic do anything

21 about that? You have a witness who very clearly states who was the one

22 who sent him to Branjevo. It's an OTP witness.

23 This is where we should come back to the testimony of

24 Witness P130, and we will keep come back to it in our closing arguments.

25 As for his testimony, as for the authenticity of his statement, as

Page 12563

1 for the fact that he, Your Honours, lied to you under oath during his

2 testimony on the 26th, 27th, and 28th of January, the Defence has spoken

3 sufficiently about this in our final brief. We would not like to go back

4 to that now.

5 We continue to submit that no ruling can be based on the testimony

6 of this witness, Witness P130. This witness himself admits that he did

7 not tell the truth before this Honourable Trial Chamber, although he was

8 aware of his duty to do so.

9 We will come back to this witness in relation to a key issue,

10 namely was Dragan Jokic aware of the objective of the joint criminal

11 enterprise as something that could be foreseen and that he, in fact, aided

12 and abetted that operation. But here I'm referring to specific paragraphs

13 the indictment.

14 It is clear that Dragan Jokic was not directing the engineers

15 company in the burials of victims at the Branjevo Military Farm. In that

16 light, according to this Defence's humble opinion, the Trial Chamber

17 should reject all factual allegations contained in paragraphs 46.9, 46.10,

18 and 46.11 of the indictment.

19 Finally, Your Honours, we have paragraph 46.12 to deal with.

20 Again, by rote we see that the engineers company, under the direction of

21 Dragan Jokic, alongside with other individuals and units, buried the

22 victims of executions on the 16th of July. Buried. That is actually what

23 it says. And that burial took place at Kozluk.

24 What is the evidence that the OTP have proffered in relation to

25 Dragan Jokic's de facto responsibility? We have referred already several

Page 12564

1 times to the daily order of the commander of the engineers company and the

2 testimony of OTP witness Milos Mitrovic, who was a member of the engineers

3 company. Let us now analyse specifically what this witness claims.

4 He confirms that on the 16th of July, 1995, Dragan Jokic conveyed

5 to him the order that he was to take the skip torpedo machine and go to

6 Kozluk. Again, he conveyed to him the order. This witness did not know

7 why his presence was required in Kozluk.

8 The same witness goes on to say that Dragan Jokic never told him

9 what he was to do in Kozluk. Therefore, he could not confirm that Dragan

10 Jokic in any way knew what he would be expected to do in Kozluk. What's

11 more, this witness confirms that Dragan Jokic did not have the power to

12 issue orders to the members of the engineers company. He merely conveyed

13 to them the orders that had been issued by the command of the engineers

14 company. This clearly transpires from the transcript of his testimony on

15 pages T5618 and T5619.

16 Further, this witness claims that upon his arrival in Kozluk, he

17 was met by the commander of the transport platoon of the engineers company

18 and that he issued him a specific order. Mind you, the system is

19 functioning smoothly all the time. And the order was to take the unsealed

20 road to the Drina riverbed as far as a pit that had been earlier been dug

21 for gravel reclamation and to bury the victims' bodies there, the bodies

22 of the victims that had been killed earlier on.

23 The witness says, "As I was unable to carry out this task because

24 the machine I had was small, it had a very small bucket. An hour -- an

25 hour later there was another machine that came along mobilised from a

Page 12565

1 civilian -- civilian structure, and it was a ULT220," the same system

2 applies. And the witness says that this is a machine that came from the

3 stone quarry at Josanica, and that this machine eventually buried the

4 victims. This witness confirms that neither the machine nor the operator

5 belonged to the engineers company. Therefore, the testimony of this

6 witness also confirms that Dragan Jokic could not have been directing the

7 engineers company and that he issued no orders to that effect.

8 If we accept the testimony of Milos Mitrovic, Your Honours, then

9 it is perfectly clear that Dragan Jokic did not know why this machine had

10 been sent to Kozluk, because if he had known anything like that, he would

11 have told Milos Mitrovic.

12 With the arrival of the construction machine from a civilian

13 source, this is something that Dragan Jokic had nothing to do with. It

14 was stated quite clearly that Dragan Jokic did not have the power to

15 commandeer that machine, nor did he participate in the process of

16 mobilising it. Let me remind you again the daily order of the commander

17 of the engineers company was signed by the commander of the engineers

18 company, not by Dragan Jokic. Let me remind you again that Dragan Jokic

19 is nowhere to be found in all this according to Mr. Butler. How then was

20 he directing the skip and Milos Mitrovic? Direction includes planning,

21 organising, commanding, and supervising or monitoring. None of this is to

22 be found in the actions of Dragan Jokic. Therefore, this factual

23 allegation from paragraph 46.12 should be rejected.

24 And to conclude this topic with paragraph 51 of the indictment, it

25 again states that the engineering company acted under the direction of

Page 12566

1 Dragan Jokic in the operation of reburial from October to November 1995.

2 What is the evidence adduced by the Prosecution? You heard in

3 Mr. Waespi's closing argument that there is circumstantial evidence and

4 direct evidence. The circumstantial evidence is that if you know that the

5 engineers dug the pits, they were the ones who knew where they were, so it

6 would have been natural for them to dig them up again. That was the

7 deduction. That was their hypothesis.

8 This is not evidence, not at least evidence that a reasonable

9 trier of fact could use to establish guilt. They cannot establish the

10 involvement of the company let alone that Dragan Jokic was in charge of

11 the operation.

12 Yesterday there was mention of the quality of the circumstantial

13 evidence, so there is not need to reiterate this point. But, Your

14 Honours, I wish to remind you that both in the trial judgement and the

15 appeal judgement in the Krstic case, if I remember correctly, I think it's

16 in paragraph 241 or 261 of the Krstic judgement, it was stated that the

17 Trial Chamber had not proved beyond reasonable doubt that members and

18 units of the Drina Corps to which the Zvornik Brigade belongs participated

19 in this operation.

20 JUDGE LIU: Yes, Mr. McCloskey.

21 MR. McCLOSKEY: Your Honour, I object to any discussion on the

22 factual findings of the Krstic Trial Chamber or the Appellate Chamber.

23 Legal findings I have no problem with, but as you know there have been

24 many factual findings, and I don't think we want to open that door for the

25 Prosecution to go through nor the Defence because it is a very large door

Page 12567

1 and there are many facts. We have been through the process of motions for

2 adjudicated facts and that process has ended, but to open up the actual

3 factual findings of the Krstic judgement I think -- I would object to.

4 JUDGE LIU: Yes. Yes, Mr. Stojanovic. I believe that you said,

5 if I remember it correctly, we'll check with this part, that we should

6 touch as less as possible about the facts findings in other judgements.

7 And at the same time, please believe us that we will arrive at our

8 conclusion concerning with certain facts based on the evidence we received

9 from this trial.

10 You may proceed.

11 MR. STOJANOVIC: [Interpretation] Thank you. I do not wish to say

12 that this Trial Chamber should rely on the facts established there. I

13 just wish to point out that that's what happened, but I think that this

14 was not challenged. However, let us go back to the other piece of

15 evidence that the Prosecution feels is relevant to prove that Dragan Jokic

16 directed the reburial operation. This is the testimony of Witness P130,

17 Your Honours.

18 This witness spoke at length and extensively. He gave the Defence

19 a lot of trouble, and we have discussed him at length in our closing

20 brief. Therefore, I will now refer to him only briefly and to his

21 testimony, but allow me to do so after the break, Your Honours.

22 JUDGE LIU: Yes. It is time for the break. We are adjourned

23 until 12.30.

24 --- Recess taken at 11.58 a.m.

25 --- On resuming at 12.31 p.m.

Page 12568

1 JUDGE LIU: Yes, Mr. Stojanovic, please continue.

2 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours. If you

3 will allow me, I have been told that we have some minor corrections to

4 make in the transcript, so I wish to do so on the record now.

5 In line 40.1, instead of Exhibit T70/3, it should say D71/3. In

6 the transcript, in line 44.3, instead of the words Sreten Jokic, it should

7 say Sreten Milosevic. In line 44.13, it says in the transcript Milos

8 Mitrovic, commander, and then there is a gap. Milos Mitrovic was a member

9 of the engineers company, the road platoon. And in line 47.11, it says

10 from October to November 1995. It should say from August to November

11 1995. And in the first block, instead of the word zone of responsibility,

12 in two places it should say the zone of defence. Thank you.

13 If you recall, we were about to discuss another piece of evidence

14 proffered by the Prosecution on the participation of Dragan Jokic in the

15 reburial operation from paragraph 51 of the indictment. The Prosecution

16 referred to the testimony of Witness P130. This is not a witness on the

17 basis of whose testimony any judicial decision should be based, and we

18 have discussed this at length in our closing brief.

19 This witness confirmed during his testimony that as a security

20 officer in the Zvornik Brigade, he played a major role in the process of

21 coordinating the burial activity, the issuing of fuel for this large and

22 secret operation. He was the chief architect of this operation for the

23 Zvornik Brigade. He was given a special vehicle to carry out this task.

24 He was able to reward and punish the participants in this operation. He

25 is a man who is trying to evade his own responsibility and diminish his

Page 12569

1 own role, and therefore, in the statements that he makes to the

2 Prosecution and before the Honourable Trial Chamber, he changed his

3 statement and added new elements to his testimony. And we agree that

4 there is no need to deal with him any further. However, I'm asking you to

5 take into consideration what this Chamber stated in its decision rejecting

6 the motion that this witness be re-examined during the rebuttal case.

7 Let me now go back to paragraph 51 of the indictment. There is no

8 evidence to prove that Dragan Jokic appeared anywhere at the reburial

9 site. Prosecution Witness Richard Butler confirmed that during his many

10 years of investigating this case, he never came across any document that

11 might confirm the participation of the engineers company of the Zvornik

12 Brigade in the reburial operation, and he says so on page 4632 and 4633 of

13 his testimony.

14 Even Dragan Obrenovic, regardless of his animosity towards Jokic,

15 confirmed that he never had any information to the effect that Dragan

16 Jokic participated in the reburial operation. He says on page 2545 to

17 2546 of his testimony that this is so.

18 And finally Milan Maric, a Defence witness, as confirmed by

19 Mr. Waespi in his closing argument, said that working with Dragan Jokic

20 after the war on Sokolac, when he spoke to him, that is to Dragan Jokic

21 about this operation, he was unable to tell him anything. This is another

22 piece of evidence showing that Dragan Jokic neither took part nor directed

23 the engineers company in this operation.

24 Your Honours, there is no evidence about any other kind of

25 activity on the part of Dragan Jokic, so that this factual allegation from

Page 12570

1 the indictment should also be rejected.

2 Allow me, Your Honours, in this closing argument to refer briefly

3 to paragraph 14 of the indictment, to Dragan Jokic's position as duty

4 officer in the command of the Zvornik Brigade, and the key issue of

5 whether Dragan Jokic had the knowledge required of the final aim of the

6 joint criminal enterprise, whether he knew of the fate of the prisoners

7 brought into the area of defence of the Zvornik Brigade in the course of

8 the 14th of July, 1995.

9 According to the Prosecution, he did. He knew, and he assented to

10 this joint criminal enterprise and aided and abetted that enterprise. And

11 as evidence that Dragan Jokic knew about this, the Prosecution uses one,

12 the duty operations officer's notebook P133 and P507, the intercepts of

13 the 14th and 15th of July in which Dragan Jokic allegedly took part. And

14 the third set of evidence are witness statements by witnesses who on the

15 14th and 15th of July, while Dragan Jokic was duty operations officer,

16 contacted him. There is a list of witnesses there, P130 again, Dragan

17 Obrenovic again, Marko Milosevic, and finally Pero Petrovic.

18 Let us try to go through this evidence again and see the other

19 side of the coin.

20 I do not wish to burden you with the de jure, the normative

21 regulations providing for the duties and tasks of the duty officer. You

22 have heard a lot about this from Mr. Butler, from Mr. Lackovic, from

23 Witness Milan Maric, Ljubo Bojanic, Dusko Vukotic, Momir Nikolic, and so

24 on and so forth. Many of them have spoken about it. (redacted). And I

25 will not go on down the list.

Page 12571

1 The rules regulating what the duty operations officer has to do

2 are before you, Your Honours. This is the instruction on the work of

3 commands and staffs, P394; the rules on the competencies of commands from

4 brigade to regiment level, Defence Exhibit 72/3, the brigade rules, that's

5 P370; the rules of the brigade, P370; and the rules of service in the

6 armed forces. That's Defence Exhibit D71/3. I will refer to these

7 exhibits only briefly.

8 De jure, that is normatively, they prescribe the role of Dragan

9 Jokic as duty operations officer, and there is no need to go through it

10 again. As duty operations officer, he was duty-bound to know what the

11 deployment of the units was in his brigade, to be in contact with his

12 superiors, to be in contact with the units comprising the brigade, to know

13 who his neighbours were to the left and to the right, to make sure that

14 maps are updated, to receive and convey orders. Those were his

15 competencies.

16 We asked Mr. Butler whether the duty operations officer can ever

17 issue commands. His answer was yes, if the commander is absent, if the

18 Chief of Staff is absent, if the assistant commander is absent in the

19 brigade, or if they are not in contact with the brigade. He went on to

20 say when all of these people are absent, then the system begins to fall

21 apart.

22 Mr. Butler was asked whether the duty operations officer, that is

23 Dragan Jokic in that case, could issue orders, and this expert said yes,

24 relying -- well, he said he is duty-bound to receive and pass on orders.

25 Your Honours, this Defence has spent a lot of time on this to

Page 12572

1 point out that Dragan Jokic, as duty operations officer, was not the focus

2 of coordination and communication. Never. From the morning of the 14th

3 to the morning of the 15th when Jokic passed on the duty, never was the

4 brigade without the commander, the Chief of Staff, or the assistant

5 commander. And I think that this is no longer in dispute.

6 Obrenovic himself said, "Yes, I was carrying out the operative

7 command of the brigade until Pandurevic arrived in the afternoon of the

8 15th of July." If he is not physically present in the command, he is

9 still in charge of radio communications -- or he is still commanding

10 through radio communications - interpreter's apology - and nothing can be

11 done without his approval.

12 We have spent a lot of time showing that in this period he was in

13 the brigade from time to time, and I think we have succeeded in showing

14 this. We say in spite of his guilty plea in which he takes a selective

15 approach to the truth, that Dragan Obrenovic, in the night of the 13th to

16 the 14th of July, was present in the brigade.

17 Look at the testimonies of Milan Maric, Ljubo Bojanovic. They

18 confirm that in the night between the 13th and 14th, he issued orders on

19 the sending of reinforcements to Snagovo, the sending of a unit to

20 Snagovo. On the 14th, in the morning, he was in the brigade command. He

21 called on Jokic to come and be on duty. And the same book of daily orders

22 which we will never try to evade and not for a moment were we afraid to

23 show Dragan Jokic's handwriting there because we want to explain each one

24 of those entries, it shows that Dragan Obrenovic, on the 14th, was in the

25 brigade at one point, and when he wasn't, he operatively was in command

Page 12573

1 and control of the brigade through radio communications.

2 Do you remember Dusko Vukotic, the intelligence officer? He

3 said, "All my intelligence I gave to Dragan Obrenovic. I did not give any

4 information to Dragan Jokic, the duty officer. I wasn't even in

5 communication with him."

6 This is a witness who is a good friend of Dragan Obrenovic, but he

7 told -- told it the way it was.

8 Look at what Milan Maric says. "Obrenovic exerted pressure on me

9 to say that in the night between the 13th and 14th he was at Snagovo with

10 him." And the witness said, "I cannot say that," and his reply

11 was, "Where was I?" And Milan Maric said that after that he did not speak

12 to him again but transferred him to Sokolac.

13 What do these entries in the duty officer's notebook say, P133 and

14 507? Look at ERN 02935745. There is an entry there, and it says,"Dragan

15 Jokic informed Brano Djuric on the movement of Muslims." I won't read any

16 further. And then it says, "Tomorrow take dry rations. Take old food

17 there." These are all issues that -- these are all orders that Dragan

18 Obrenovic issued. No one else could have issued them.

19 Remember the entry in the afternoon of the 14th? "Reinforcements

20 from the battalion are to be collected and sent to Snagovo to oppose the

21 oncoming column of the 27th division." And Jokic made an entry, "Drive

22 there with Obrenovic's approval." Obrenovic was there, and he was the

23 only one who could say, "Go up there and take up positions at Snagovo."

24 It wasn't the duty operations officer who could do that. That is not our

25 hypothesis. It follows from the intercepts P121, Dekic. And you heard

Page 12574

1 one of those intercepts where Lovac, that's the radio centre, Lovac --

2 asks Lovac 1, which is Obrenovic's code name, and he admits it, "Are the

3 enforcements on the way?" And Lovac 1, that's Obrenovic, answers, "Yes,

4 they are just starting out." "Where are they starting out from?" "From

5 the command of the Zvornik Brigade, yes." And how does Obrenovic know

6 this? He knows it because he's there.

7 On ERN - I'm speaking of the B/C/S pages - 0235750, again there is

8 an entry by the duty officer, Dragan Jokic. "Premier," that's the radio

9 centre at Gucevo, "-Mumba is asking when Avala is coming to base." Who is

10 Avala? That is Obrenovic's code name. Obrenovic admits it. He arrives

11 at the base and his subordinate Mumba is asking when he is coming. We say

12 at that moment that he was in Orahovac, because that is the only place not

13 covered by the radio signal from Premier, from Gucevo, which is why they

14 lost contact with him at that point. However, time and history will show

15 this.

16 Let's go further. On ERN 02935756 there is an entry at 9.21

17 hours, that's the morning of the 15th, Your Honours. Obrenovic ordered

18 that reinforcements should urgently be required from the corps. Badem

19 conveyed the order. You know what this is about. And reinforcements

20 arrived from Badem and from the Bratunac Brigade.

21 It is evident that only Obrenovic has operative command, and he is

22 the one issuing the order that reinforcements should be sought from the

23 corps and directed to go to Baljkovica and Parlog, not towards Snagovo.

24 His testimony, Your Honours, is a new virtual reality. He is an

25 intelligent man. He knew exactly how far the Prosecution had come with

Page 12575

1 its evidence, and he limited the facts as far as he was able to do that at

2 that point in time, because the Prosecution had succeeded in discovering

3 his role in these events and then he garnished this with anything that

4 might help him, including involving Jokic in all this.

5 I'm saying "all of this" because of that key sentence that we are

6 dealing with. One of the key pieces of evidence of the Prosecution, that

7 Dragan Jokic knew of the operation of execution and burial is the

8 statement of this same Dragan Obrenovic, who says that on the 15th of

9 July, around 11.00, he met at the headquarters of the Zvornik Brigade,

10 Jokic, that he met Jokic there, and that Jokic as duty officer informed

11 him about the problems with the detention of the prisoners of war and the

12 burial of these prisoners, and that Beara, Popovic, and Drago are doing

13 whatever they want to do and that Popovic told him not to write down any

14 of this.

15 This is an event that was invented or fabricated, Your Honours.

16 Why am I saying this? Allow me to dwell on this a bit longer, if you

17 will. First of all, Obrenovic changes his statement in relation to the

18 place where he met Jokic. Please see his guilty plea in the transcript.

19 He says once it's in the hallway and the other time he says it's on the

20 stairs. You had the opportunity to see this particular site, Your

21 Honours, and I tried to portray both stories objectively.

22 He says that the duty operations officer stopped him on the stairs

23 or in the hall and reported to him about such serious matters. Very

24 compromising matters, that's the way I put it.

25 You've heard quite a bit of evidence. Lackovic, (redacted). There is

Page 12576

1 no reason for anything to be said subjectively about Jokic, who says there

2 is not a single duty officer who in such a place would report to his

3 commander about such things. Such a commander would be no good, and also

4 such a duty officer would be no good. That's what the rules say too. The

5 reporting take place in the premises of the duty officer's room. The

6 regulations and rules say that the duty officer is not allowed to leave

7 his office. But let us assume that that is even the way it did happen,

8 that Jokic went away from the office of the duty officer, and you saw

9 where that was, and that he went downstairs to the left part of the hall

10 of the headquarters of the Zvornik Brigade.

11 What was he doing there? These premises were not being used at

12 that point in time at all. I showed that to you. There is no denying

13 that. These were the rooms where Vinko Pandurevic's escorts were staying,

14 and at that moment we were returning from Zepa towards Zvornik. Then also

15 there's the military club. That was not being used either. And then the

16 Prosecution says, well, perhaps the toilet was there. Yes, but it was not

17 in order. I saw the toilet -- "I saw and showed them the toilet

18 upstairs." So why would Jokic do that? And then how can the -- how can

19 the major be so brave and so courageous, and how he could speak up in the

20 hallway just like that? Who is he speaking to? And in front of who is he

21 speaking? First of all, to his commander, because that is what Obrenovic

22 is at that time. Secondly, Obrenovic says, "Vasic was going with me."

23 Who is Vasic? A colonel of the police, a man outside the military.

24 And then this same Obrenovic says Vasic could see this, but he was

25 supposed to hear about it, too, because he went on. He went upstairs.

Page 12577

1 What does Vasic say? You received his statement according to

2 Rule 92 bis in which this same Vasic says, "It is true. I was going

3 together with Obrenovic to his office on that day, the 15th, in the

4 morning, but I cannot say that I saw Jokic. I did not see him. I would

5 have said so if I had seen him. I did not hear such a conversation." He

6 says -- in response to a Prosecutor's question, he says, "There is no

7 reason for me not to say that."

8 I am telling you, Your Honours, that this Vasic was much better

9 friends with Obrenovic during the war and after the war than with Jokic.

10 He had nothing to do with Jokic whatsoever. Jokic is a little child as

11 far as he is concerned. He is not at his level, so to speak. If he

12 wanted to say something, he would say something that he could profit from

13 at that point in time, and that is what Obrenovic said, too, because

14 Obrenovic is getting out of the whole story. He made a plea agreement.

15 On the contrary. This witness says, "I did not see Jokic."

16 Obrenovic says, "Behind me are Borovcanin, Stupar, and another

17 officer, I think."

18 We had the opportunity of hearing that Stupar here, and that is

19 what I mentioned in my final brief, that Stupar says, "I did not see

20 Jokic. Had I seen him, I would have said so. And there is no reason for

21 me not to say that I saw him if I did. I only heard of that Jokic when he

22 was building roads in Sekovici."

23 That is the evidence, the key evidence which is supposed to prove

24 that Dragan Jokic was aware of the operation. We can resort to

25 circumstantial evidence as well. Obrenovic says that Jokic said to him

Page 12578

1 that Popovic had ordered him not to write down anything.

2 Your Honours, do you have a shred of evidence to the effect that

3 Popovic was at the headquarters of the Zvornik Brigade on the morning of

4 the 15th and that he said something like that to Jokic? You do not.

5 There is no evidence that on the 15th in the morning either Popovic or

6 Beara were at the headquarters. And also, the trials against these two

7 persons will show where they were on the morning of the 15th.

8 So on one side we have this virtual reality that is being created

9 by Dragan Obrenovic, and on the other side we have all these facts which

10 state otherwise. It is for you to weigh the two, view them individually,

11 view them together.

12 There are many facts that say the opposite to what Obrenovic said

13 in his admission of guilt. In the entire post-war period, while he was at

14 the position of commander of the 503rd Brigade of the VRS which succeeded

15 the Zvornik Brigade, Obrenovic used all this time to prepare his defence,

16 to revise documents, to conceal documents, and you have all of that in

17 front of you. And he also brought pressure to bear on witnesses so that

18 they would confirm his alibi. His defence concept was that the duty

19 operations officer was the person who had the powers that in reality were

20 exercised by him, Obrenovic himself. All the time he's trying to say that

21 he is in the bushes, that he is in the woods, while three kilometres away

22 from where he says he was people were being killed with his agreement,

23 support, and deep involvement in these events. That is what he says.

24 That is what he admits. And now he is a witness for Dragan Jokic.

25 We will abide by what we said, that in the night in between the

Page 12579

1 13th and the 14th he's at the headquarters of the Zvornik Brigade. On the

2 morning of the 14th he leaves the Zvornik Brigade headquarters. The night

3 between the 14th and the 15th, he returns to the brigade.

4 Remember the witnesses with the extraordinary combat reports and

5 also the untruthful thing he said, that he was dictating an extraordinary

6 report from Snagovo. And we had a witness here, Brama Miocevic [phoen],

7 who said this never, ever happened, especially not to an experienced

8 officer like that. He'd never do that kind of thing. He is at brigade

9 headquarters, and that is where he is commanding from.

10 Then the testimony of Mico Gavric, who says, "I came to the

11 headquarters of the Zvornik Brigade the night between the 14th and the

12 15th, and the assistant duty operations officer said to me, "Obrenovic is

13 here. He is asleep." He said that, "You should stay somewhere over here.

14 He has no place to put you up until the morning." Who is Mico Gavric?

15 Why would he speak in favour of Dragan Jokic? He has no idea whatsoever

16 who Dragan Jokic is. And on the morning of the 15th, he left the brigade

17 headquarters and returned again on the 11th. That is the route he took.

18 As days go by and as the Srebrenica investigation progresses, you

19 will see all of this, and you already have quite a bit.

20 So, Your Honours, as regards this kind of witness and this kind of

21 testimony, that cannot be a basis to prove that Dragan Jokic knows about

22 the fate of the prisoners.

23 Again, I wish to reiterate that it is very difficult for any

24 Defence attorney to speak about individual criminal responsibility in the

25 context of tragic events that took place in Srebrenica. I know that best

Page 12580

1 of all, because I come from that part of the world. That is a crime that

2 has no justification. This is a crime that was committed by members of a

3 people that I belong to, too, and I have to feel a sense of obligation in

4 terms of every word I say today, bearing in mind the victims of this

5 crime.

6 However, at the same time I wish to say that the individualisation

7 of the responsibility of each and every participant in this event must be

8 the key and shall be the key of mutual reconciliation and re-establishing

9 a life together in that area. Only a morbid mind could have conceived of

10 this, bringing such a large number of prisoners to Zvornik and executing

11 them.

12 As for what actually happened to the victims, people learned about

13 it after the crime, but this was certainly being concealed before and

14 during the commission of the crime. That is what was said today. This is

15 what the Prosecution said. This was mentioned. And then also this was

16 condemned. There was an outpour of hatred. This could not have been

17 concealed. The Defence cannot say that. But the Defence wishes to say

18 that on that day, the 14th, when Dragan Jokic sees that prisoners are

19 coming to the zone of the Zvornik Brigade on the 14th of July, we're not

20 hiding that, and that is what was said. This was a very long column

21 escorted by UN vehicles, white vehicles in the column. The general story

22 was that they were going to be exchanged.

23 In our final brief we said and enumerated tens of witnesses who

24 said so starting from the victims themselves, via the members of the

25 Bratunac Brigade and the Dutch Battalion, and members of the Zvornik

Page 12581

1 Brigade itself.

2 When the prisoners came, when they were transferred, when they

3 were put up there, all of that that happened is legal and legitimate

4 activity. There is no doubt about that. There is no dilemma involved.

5 This is confirmed by Mr. Butler. There is no war without prisoners.

6 However, taking away the lives of these prisoners is an unprecedented

7 crime. Of course that is quite clear. This was not discussed publicly,

8 because it is quite understandable that those who organised that kind of

9 thing and do such a kind of thing are aware of the fact that they are

10 taking part in a crime. They knew what they were doing, but they're not

11 going to boast about it in public.

12 It is precisely here that the Prosecution tries to say, "This is

13 our proof Dragan Jokic knew what was going on, and he assisted and

14 supported that." They say look at the book of notes of the duty officer.

15 It says there, and I'll state this very briefly, "Salapura called. Drago

16 Beara called Golic." The second note at 1500 hours. "Beara is coming.

17 Orahovac, Petkovci and Rocevic." The third note: "155 Beara should

18 call." And the fourth note: "From Beara, Drago should call."

19 These notes that were written down by Dragan Jokic in the duty

20 officer's book are proof, in the words of the Prosecution, of his

21 participation, because he is informing this other man as to what Beara is

22 doing, and he is assisting him thereby. Who is Beara? As for his

23 position, his character, and his role in these events, Mr. McCloskey spoke

24 about that yesterday, or, rather, the day before yesterday in his closing

25 arguments. This is a high-ranking officer in the Main Staff from the

Page 12582

1 security organs or, to be more precise, the head of administration for

2 security of the Main Staff. It is sure that this kind of officer who is

3 carrying out a criminal design is not going to tell some duty officer at

4 the Zvornik Brigade what he is doing, what his task is, and he is not

5 going to tell him, the duty officer, about what he's doing. He's not

6 duty-bound to report to him. That would have been absurd. That would

7 have been upside down.

8 Dragan Jokic is not at a level that would lead Beara to talk to

9 him. He would not condescend to that. Jokic's duty as duty operations

10 officer in the brigade is to receive and convey information required of

11 him. That is what it says in the rules and regulations. Dragan Jokic

12 cannot go into an analysis of any of these notes. He is not an officer

13 entitled to ask Beara, "why is Drago supposed to call you?" "Beara, why

14 are you looking for Drago?" He is not at that level. He cannot ask

15 Colonel Salapura from the Main Staff why are Drago and Beara supposed to

16 call Golic?

17 In terms of the content of every one of these notes, a priori, it

18 cannot be concluded so pretentiously that Dragan Jokic knows what Beara's

19 work was on the 14th and that he assisted him in carrying out that task

20 because he's writing down these notes.

21 You heard the testimony of Brano Mihic, Salapura, who say, well,

22 he didn't even talk to Jokic. This order or this message was conveyed to

23 the duty officer at the radio centre, and this man took it to the duty

24 officer at the brigade. And then Dragan Jokic, as duty officer, who can

25 he talk to then? How can he say, "Mr. Salapura, why are Drago and Beara

Page 12583

1 supposed to call Golic," who is an intelligence officer at the Drina

2 Corps? He neither asked him nor did he get any answer. It is not his

3 duty to ask him, and he does not dare ask him. That is not evidence.

4 None of these notes prove that Dragan Jokic knows about the executions.

5 At every point in time, this Defence was prepared to say to the

6 honourable Prosecution that any one of these notes can be commented upon.

7 We had nothing to shy away from in this respect.

8 The other group of these questions are the intercepts, the

9 intercepts, the four intercepted conversations at 9.10 on the 14th,

10 allegedly Jokic and Zivanovic. There was another intercept at 2102

11 between Jokic and Zivanovic. At 2110, there were several participants,

12 Beara, Jokic. And the fourth conversation at 2120, a conversation between

13 Jokic and Vilotic. Vilotic, one assumes, might in actual fact have been

14 General Miletic.

15 During this trial, for the sake of principle, we did not shy away

16 from these intercepts in as far as they were incriminating, but we did say

17 that a ruling and a judgement cannot be based on such intercepts.

18 However, we do take into account the fact that the Honourable Trial

19 Chamber has decided to admit these into evidence and then attribute their

20 relevant weight to them at the end. But Your Honours, there is no

21 recording of these intercepts. The people who listened in to these

22 conversations, intercepted these conversations, claim that they

23 encountered problems and that errors were made when the tapes were

24 switched and that the tapes on the Uher recorder were four hours long,

25 that the timer was out of order, so that errors were made as far as the

Page 12584

1 timing on the -- of the intercepts, and these errors could -- could have a

2 bearing on the identity of the participants in these conversations.

3 When asked while listening from Konjekeroke Visnjica [phoen], how

4 can you know who the persons are who are talking at a distance about 80

5 kilometres away from you? And most of them said we identified frequent

6 participants in these conversations by the sound, but Dragan Jokic's voice

7 was not recognised by or identified by anyone, because he was not a

8 frequent participant. Pavle Zivanovic, Krstic, Vasic, Obrenovic, yes,

9 those voices were identified. Well, then, how do you know that Jokic took

10 part in these conversations? And then he says, well, he identifies

11 himself. And perhaps he introduces himself as the duty operations

12 officer.

13 This is a good opportunity to remind you, Your Honours, that in

14 the Zvornik Brigade at that point in time, on the 14th and 15th of July,

15 as well as before and after those days, and this is not disputed, there is

16 a duty operations officer at the forward command post, too, and he is the

17 centre point for coordinating all communications.

18 We have heard Witness Lackovic and Witness Vukotic on this point.

19 Why is the centre point there at the forward command post? Well, he says

20 simply because the commander is based there. That is where the orders are

21 coming from. That is where the commands are coming from. There was a lot

22 of fighting going on. The column of the 28th Division was on its way

23 through. There was a major breakthrough that was under way. The

24 2nd Corps of the BH army was about to overrun the area.

25 As for the intercepts, the radio communication on that day was a

Page 12585

1 chaos. This all shows that we should approach with a great deal of

2 caution any statements indicating that Jokic took part in those

3 conversations. We addressed each and every one of these intercepts

4 separately in our final brief. Therefore, I don't think there's any need

5 to dwell on this any longer. We abide by the theory that we put forward

6 in our final brief in relation to these intercepts, but for the sake of

7 history, at this point in time, if we look at those four intercepts, what

8 is it in there that constitutes proof that Dragan Jokic was aware of the

9 executions that were going on? The Prosecutor says, well, he was aware

10 where the combat situation on the ground. He was talking to Zivanovic.

11 He knew about the deployment of the forces, he was well-informed. Well,

12 what can I say? Well, yes, he was. That is a duty of the duty operations

13 officer. There is no escaping that. But does it follow from that that he

14 actually knew about the killings?

15 There are two conversations, two intercepts that contain

16 references to someone who is alleged to be Jokic as saying, "We have

17 problems with the prisoners," that is the parcels, and this has been used

18 many times throughout the trial. But, Your Honours, I'm never going to

19 even try to imply that Dragan Jokic was not aware of the prisoners being

20 there. That would be insane. It would be an insane line of reasoning to

21 pursue. But who in their right state of mind could presume that he was

22 evil enough to assume that those people would be killed? We have no proof

23 of that, and this is the essence of what we are saying. This is the

24 essence of what we have to say in relation to these intercepts.

25 Finally, I will refer to an intercept that Mr. Waespi referred to

Page 12586

1 two days ago. It is the morning of the 15th. There is an intercept of a

2 conversation between Pandurevic, Jokic, Milosevic, and Mijatovic.

3 Pandurevic is calling, saying, "I want to speak to the duty operations

4 officer." Therefore, he's calling the centre. The duty operations

5 officer answers the phone. Major Jokic speaking. And as soon as

6 Pandurevic realises it's Major Jokic who is on the line, he asks to speak

7 to Mijatovic. "I don't even want to talk to you," he says. Allegedly

8 Jokic answers, "just a moment, commander," and then Mijatovic comes in.

9 And then he reports to his zone commander on the situation in the brigade

10 because at that moment, the commander is on his way from Zepa to Zvornik

11 to assist with the breakthrough across the front lines that is being

12 carried out by the forces of the 28th Division at that time.

13 I do not wish to be applying a double standard here in relation to

14 these transcripts. Please don't get me wrong. But if we properly

15 evaluate these intercepts, if we evaluate precisely what they actually

16 say, who is Dragan Jokic in his capacity of duty operations officer?

17 Well, even this commander refuses to even speak to him. He says, "I want

18 to speak to Mijatovic."

19 Who is Mijatovic? We heard about this, Your Honours. He is a

20 logistics officer. He is Pandurevic's confidence man. Jokic is there,

21 present, alive and well. He is duty operations officer. Purportedly he

22 should be the centre point of all communications. He knows about

23 everything, he aided everything and abetted everything, and here we see

24 him swept away by Pandurevic. "You get out of the way. Let me speak to

25 Mijatovic so I an know what is going on at the brigade." So what better

Page 12587

1 illustration can there be about what his actual role and position was.

2 Therefore, please don't get me wrong on this. I do not wish to

3 fall into the trap of, on the one hand, using the transcripts in my own

4 favour and rejecting them elsewhere. We are just trying to get them

5 evaluated in truthful light, to get them evaluated properly as they

6 deserve to be viewed.

7 And then the third set of evidence of the Prosecutor claiming that

8 Dragan Jokic knew of the executions that were under way and that he aided

9 and abetted those executions. They say Witness Pero Petrovic said that he

10 had talked to Jokic and that Jokic had told him, well, yes, there are

11 prisoners of war arriving in Pilica, but that's nothing for you to worry

12 about, so just go home.

13 Your Honours, we have provided sufficient evidence showing that

14 Pero Petrovic is simply not telling the truth. We have also brought over

15 Zoran Radosavljevic who testified exactly the opposite to what Pero

16 Petrovic said. We have provided material evidence that he was, in fact,

17 not telling the truth. I'm talking about the Republika Srpska telecom

18 certificate which explicitly states that the phone lines from Pilica were

19 fully operational on that day where he comes up with a story that the

20 phone lines were down and that's why he had to go to a different location

21 four kilometres away and use the phone there.

22 This witness is not even sure that he talked to Dragan Jokic at

23 all. He says, "I spoke to the duty operations officer, and I think it was

24 Jokic." This witness is not sure about the date either. He said it was

25 on the 12th of July, St. Peter's Day. That is simply not true. It could

Page 12588

1 have been on the 14th of July, for example, because that's when Dragan

2 Jokic was on duty. If you look at the testimony of that witness, nothing

3 can be based on that.

4 His testimony is an attempt to divert the Prosecutor's attention

5 from his own responsibility, because the premises of the Pilica local

6 commune, as you have seen for yourselves, Your Honours, of which he was

7 president had been used to keep prisoners, and he was the one who held the

8 keys to those premises, not someone else like he wishes to have us

9 believe. Likewise, this also happened back in 1992, when a set of tragic

10 events occurred there as testified to by Witness DV1 before this Trial

11 Chamber. And then we find out that he knows nothing. He simply goes back

12 home because Jokic tells him these are prisoners of war, feel free to go

13 home. And Zoran Radosavljevic, a witness, says he is lying, for God's

14 sake. He came with me to see the prisoners. No ruling can be based on a

15 statement given by a witness like this.

16 Again, Your Honour -- Your Honours, even if he had said "these are

17 prisoners of war, go home," does that prove that they would be killed?

18 Let us not even remind ourselves. What if he said, for example, "I know

19 nothing of the prisoners"? This is also in reference to Marko Milosevic's

20 testimony, which was also addressed by the OTP. He was the deputy

21 commander of the 6th Battalion, Your Honour.

22 The OTP knows and states clearly in their indictment, in the zone

23 of defence of the 6th Battalion, that is in Petkovci, crimes were

24 committed. The OTP claims that members of the 6th Battalion were involved

25 in guarding the prisoners, transporting the prisoners, and removing the

Page 12589

1 bodies of the prisoners who had been killed in that school that we

2 visited, Your Honours. And this witness is a deputy commander of that

3 specific battalion.

4 So what does he tell us? He says on the 14th I received a phone

5 call from the duty operations officer from the brigade. It was in the

6 morning. And he said that prisoners would be arriving in the school

7 building. Which duty operations officer was this? I don't know.

8 "Frankly, I don't know that this was Dragan Jokic." He did say that

9 before this Chamber. And indeed the prisoners arrived.

10 He went to the front line and he was wounded there, so he was

11 taken to a hospital. Three days later, he learns from someone that people

12 who were 500 metres from his command post had been killed. Come on. This

13 is simply not a story that anyone in their right state of mind could

14 possibly believe.

15 There is only one detail that we must extract from all this

16 evidence. He was asked by the OTP, "why is the duty operations officer

17 calling you? Why wasn't he calling the commander? You are the deputy

18 commander." And he says, "Well, my commander was away at that time

19 because he had taken some soldiers over to the Zvornik Brigade command so

20 that they could go to Snagovo with Obrenovic."

21 If we look at the duty operations logbook P133 it clearly reflects

22 that his commander, Ostoja Stanisic, did indeed bring soldiers to the

23 command of the Zvornik Brigade at that time.

24 Try to imagine now, Your Honours, Jokic is there sitting in the

25 Zvornik Brigade command, and there before him is the commander of the

Page 12590

1 battalion. He is supposed to tell him what the prisoners were there for

2 but that's not what he does. He picks up the phone and he calls his

3 deputy who at the time is in Petkovci. Why on earth would he do anything

4 like that? Why don't you just tell the commander? He's there. Send

5 this message on by courier.

6 Again we have another story which is merely an attempt to avoid

7 the truth of what really happened at Petkovci. It's easy to blame Dragan

8 Jokic. Even as early as his first statement, the first statement that he

9 gave back to the Prosecutor back in Zvornik, he was a lamb for the

10 slaughter, and he was the black sheep, someone to be blamed, the

11 scapegoat. I'm not sure I should go on about this. To put it briefly, he

12 said on the 14th he called the duty operations officer so --

13 JUDGE LIU: Yes.

14 MR. McCLOSKEY: I would very much like that statement to be in

15 evidence. If counsel would like it to be in evidence at this stage it

16 might be enlightening, but I know the Court's rulings have not allowed it

17 into evidence, and I think that's what we must go on unless counsel wishes

18 to change their position, which perhaps they do.

19 JUDGE LIU: And another matter, Mr. Stojanovic --

20 MR. STOJANOVIC: [Interpretation] Yes, Your Honours.

21 JUDGE LIU: -- we are three hours and a half at this moment. How

22 many pages left from those pages?

23 MR. STOJANOVIC: [Interpretation] Four pages to go, Your Honours.

24 I'll try to be as quick as I can. I'm about to bring it to an end. But

25 please allow me. My apologies.

Page 12591

1 I am not using P130, this statement that was not admitted. I am

2 actually referring to evidence that he gave before this Trial Chamber.

3 I'm not dealing with him any more because we are in agreement that this is

4 not a credible witness. He said, "I called him on the phone, and I talked

5 to the duty operations officer asking for assistance in guarding the

6 prisoners." He did say that to this Trial Chamber under oath. He said,

7 "I wasn't sure whether the duty operations officer was Jokic, but when

8 the investigator told me it was Jokic, it was then that I remembered, yes,

9 Jokic was the person that I had spoken to."

10 An hour later, he says, Sreten Milosevic, Branko Jovanovic, and

11 some other people from the logistics unit, they came to guard the

12 prisoners. The unfortunate Tanacko Tanic was also one of them, a witness

13 that was here in front of you, who clearly stated, "Jokic never sent me

14 there. Jokic was in no position to give me orders. I was sent there by

15 Mijatovic. I saw Witness P130 there but I never saw Jokic."

16 How can this be testimony to the effect that Dragan Jokic aided

17 and abetted the execution of prisoners there? Well, Your Honours, it's up

18 to you to decide that.

19 This brings me to the end of my story on the all the evidence you

20 have heard over the last one and a half years as it concerned the

21 knowledge of Dragan Jokic, his knowledge of these executions.

22 JUDGE LIU: Yes, Mr. McCloskey.

23 MR. McCLOSKEY: I'm sorry, Mr. Stojanovic. I had misunderstood

24 the previous objection. I thought he was talking about the statement of

25 his client. He was not as I read this over again. So I should have

Page 12592

1 withdrawn that, and I have no problem with him discussing Witness 130.

2 That's -- I apologise.

3 JUDGE LIU: Thank you very much.

4 MR. STOJANOVIC: [Interpretation] Your Honours, for the sake of

5 history and because I am returning to Eastern Bosnia tomorrow, I have to

6 say this: It is very difficult for me to explain this idea of a joint

7 criminal enterprise as it is used here. It is hard to explain that Dragan

8 Jokic was a member of a joint criminal enterprise because he was to have

9 foreseen the intentions in the minds of a group of people he did not

10 belong to.

11 Your Honours, Dragan Jokic could not have foreseen the

12 consequences. As he told me yesterday, it is not clear to him to this

13 day. He asked me yesterday why is Mr. Waespi talking to me about

14 Bratunac, about the 13th, about looking for an excavator? What have I to

15 do with that? And yet he is charged with all the opportunistic killings

16 that took place in Bratunac before the 14th and the opportunistic killings

17 in the Zvornik Brigade after the 14th, because he is supposedly a member

18 of the joint criminal enterprise who aided and abetted all this.

19 It is hard for me to say this, but you had a witness before you,

20 Your Honours, who pleaded guilty for the events in 1992 and fabricated a

21 virtual reality about Srebrenica in 1995, who said that he talked to

22 Karadzic on the 7th, 8th, or 9th about how all these people should be

23 killed. He said that on the night of the 13th he said, "Take these

24 prisoners away from here. Don't kill them in Zvornik." How he opposed

25 this. How on the 17th taking a vehicle and members of the DutchBat he

Page 12593

1 signed a statement saying that everything had been done in accordance with

2 the Geneva Conventions. And yet this man is not said to be a member of

3 the joint criminal enterprise in Srebrenica. He could not have foreseen

4 what would happened, and Dragan Jokic could have? His story, his role and

5 the role of Dragan Jokic in the events in Srebrenica, Your Honours, this

6 is a night and day difference in Eastern Bosnia. This is something I can

7 never explain.

8 There had to be intent to aid and abet a crime. There had to be

9 intent. And, Your Honours, Dragan Jokic did not have this intent. This

10 is the evidence that both the Prosecution and I have discussed, and it is

11 up to you to make a decision on it.

12 Let me now just speak briefly about the following: Should Your

13 Honours find that Dragan Jokic is guilty, that he is a war criminal, I

14 wish to put forward the mitigating circumstances in his favour.

15 Dragan Jokic is a man who had a typical career in the former

16 socialist Yugoslavia. He came from a poor family. And because military

17 training was free, he went to the military academy. He chose the

18 engineers because the training was shorter, and he thought he would start

19 earning his living sooner if he chose that. And secondly, he would not be

20 carrying weapons but using machines to build roads and other facilities

21 and help people. This was his choice.

22 When the war broke out, he had to respond to the call to return to

23 his native town. On his arrival he worked as a teacher in the Divic

24 training centre for young soldiers based in the hotel Vidikovac. After

25 the establishing of the engineering company and the successful work on

Page 12594

1 fortifying the zone of defence of the Zvornik Brigade and directing

2 obstacles around it, Jokic was offered the duty of brigade commander.

3 However, he was aware of the responsibility this duty carried with it, as

4 well as the bloodshed that had already happened in April and May 1992, and

5 for this reason he refused to take up this duty.

6 When plans were being made to attack the Srebrenica subregion in

7 1992, Jokic refused to take part in these operations. After this, he was

8 dismissed from the duty of Chief of Staff by this same general Zivanovic,

9 and Captain Dragan Obrenovic was appointed in his place. From that point,

10 the attitude toward Dragan Jokic changed. Zivanovic instructed Pandurevic

11 and Obrenovic to exclude Jokic from any sort of decision-making because

12 there was no place for those who were disobedient in the chain of command.

13 Throughout the war, Jokic fought against the negative phenomena

14 occurring in his environment. He fought against the looting of Muslim

15 property. He fought against paramilitary formations, for which reason his

16 personal safety and the safety of his family was under threat.

17 Witness P178, and I have been told I may say his name, Ostoja

18 Stanojevic, said at one point that he had a pure soul and a heart of gold,

19 and these are words which characterise Dragan Jokic best.

20 Another witness referred to him as Nikoletina Bursac, a character

21 from Serbian literature from World War II, a good natured, large man with

22 a soft heart, a heart that was belied by his appearance, his outward

23 appearance. And this is the image of Dragan Jokic.

24 We have spoke a lot about the evidence that on the 18th of July

25 when the worst crimes were taking place, he made a personal sacrifice, and

Page 12595

1 he let a group of Muslim young men walk through a minefield, and this is

2 not the action of an evil man. It is not characteristic of those who

3 actually were members of the joint criminal enterprise.

4 When the war was over, Your Honours, after the Prosecution called

5 on him the first time, he responded to the call. On the 14th of December,

6 1990, he made a statement to the Prosecution.

7 THE INTERPRETER: 1999, interpreter's apology.

8 MR. STOJANOVIC: [Interpretation] And he told them everything he

9 knew. After that he was treated very badly and harassed. He was said to

10 be a traitor. He was insulted. He was subject to threats. His family

11 was exposed to threats.

12 Again, on the 2nd of April, 2000, he was asked to speak to the

13 Prosecution, and in the second interview he started being evasive, saying

14 that he could not remember. And when the Prosecution insisted that he say

15 what happened, he stopped. And then he was told he would be indicted.

16 JUDGE LIU: Yes.

17 MR. McCLOSKEY: Objection, Your Honour. First of all, that's not

18 true. Secondly, now we are getting into the statements. So I was wrong

19 before, but I think I'm pretty clearly right this time, as befuddled as my

20 brain appears to be becoming. So again, I make that offer. If those --

21 if he would like those statements in evidence, it's not too late, and

22 we're ready to accept them.

23 JUDGE LIU: Well, Mr. Stojanovic, please concentrate on those

24 mitigating factors.

25 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours. I

Page 12596

1 accept this suggestion, and I will conclude by saying that after he was

2 told that he had been indicted and after his then-counsel conveyed this

3 message to him, he responded again. He said, "Here I am. I surrender.

4 There is no where for me to flee. I have said everything I had to say.

5 You can try me. I am not guilty."

6 He is the only officer of the army of Republika Srpska, Your

7 Honours, from then to this day who did that, who surrender voluntarily,

8 who said, "Here I am." And that is how he has acted from the beginning to

9 today.

10 The Court appreciated this and gave him provisional release. He

11 respected every summons. He respected all the conditions imposed on him.

12 Not for a moment did he try to obstruct the course of justice. His

13 behaviour in the Detention Unit, his behaviour after the execution of the

14 crime, if you should find that he was guilty of that, was that he

15 whole-heartedly worked on the implementation of the Dayton Accords. He

16 participated in the de-mining of hundreds of thousands of square

17 kilometres of land making it fit for agriculture. And all this

18 demonstrates that he is not an evil man. He is not a man who could have

19 done something like that.

20 Let us hear the words of Witness DV1, who is certainly competent

21 to evaluate Dragan Jokic's position. He said that after talking to many

22 contemporaries of the events in Zvornik, because he is writing a book

23 about it and he was involved in these events himself directly, he said

24 that out of hundreds of testimonies, he heard only one, and that all this

25 shows that Dragan Jokic did not participate in these events. This witness

Page 12597

1 confirms that he himself knew what Dragan Jokic went through after he made

2 his first statement.

3 Mirko Rebic, a witness who grew up together with Jokic and who had

4 a high-ranking position in Zvornik municipality said that he, Mirko Rebic

5 is a religious man and that God is his witness that he is telling the

6 truth when he says that he thinks Dragan Jokic is a good man and that he

7 was not involved in any crimes.

8 I will now conclude, Your Honours. The first victim in any war is

9 the truth. Your Honours, it is up to you to establish what is most

10 difficult in this case, and that is the truth about these tragic events

11 and the truth about the role of Dragan Jokic in all these events. I am

12 deeply convinced that you will successfully carry out your historic

13 mission and that you will evaluate all this evidence properly and that we

14 shall all be the winners because we will all gain the truth about these

15 events.

16 Taking into account everything said both by the Prosecution and

17 the Defence, all the evidence you have seen, please also bear in mind the

18 character of Dragan Jokic, his personality and everything that in this

19 past year and a half you were able to hear and learn about him.

20 On behalf of this Defence, I wish to thank you for your most

21 proper conduct of these proceedings and for being so fair and so lenient

22 with us.

23 Let me reiterate, Your Honours, that I ask you to acquit Dragan

24 Jokic. Thank you.

25 JUDGE LIU: Thank you very much. It's time for us to have our

Page 12598

1 break, and we will resume at 3.00.

2 --- Luncheon recess taken at 1.48 p.m.

3 --- On resuming at 3.03 p.m.

4 JUDGE LIU: Before we start the rebuttal procedure -- I'm sorry.

5 Before we start the rebuttal procedure, there are some housekeeping

6 matters that we have to deal with, that is the admission of the documents.

7 And I believe that there are still some 65 ter witness under their

8 statements need to be admitted into evidence in accordance with the

9 Rule 92 bis. One, on the Prosecution side, is document 105, document 131,

10 and document 119.

11 Well, I'm sorry, that's the witnesses, not the documents. The

12 witness numbers.

13 Yes, Mr. McCloskey.

14 MR. McCLOSKEY: Yes, Mr. President. Witness 131 was not at all

15 cooperative, and so we are withdrawing that witness. Witness 105 and 119

16 were both witnesses that testified. I believe they were VRS soldiers.

17 And we have not gone through the process of getting the registrar to get

18 them signed up, and that's my fault. It's something I should have made

19 sure happened, and I have not yet.

20 JUDGE LIU: Well, thank you very much. But these two witnesses

21 testified before the Trial Chamber, and we believe that those can be

22 admitted without the certification.

23 Any objections? It seems to me there's none. So those two are

24 admitted into the evidence.

25 Under Blagojevic's case, we still have several documents pending.

Page 12599

1 One is the document D140/1, and the other is the D232/1. Am I right?

2 MR. KARNAVAS: Partially. There are two others, Your Honour. As

3 I understand, there's -- there's D86/1A. There's D140, D143, and D232.

4 JUDGE LIU: Yes. Thank you very much.

5 MR. KARNAVAS: As I understand, they were pending translations,

6 so -- and all of that has -- is ready and is in, and so I don't see that

7 there would be a problem.

8 JUDGE LIU: Well, I believe that the translation has been

9 furnished to us already, so it seems to me there are no problem to admit

10 them into the evidence.

11 Are there any objections?

12 MR. McCLOSKEY: No, Mr. President.

13 JUDGE LIU: Thank you very much. So those four documents are

14 admitted into the evidence.

15 In the Jokic defence, I believe there are several documents that

16 have to be admitted into the evidence, that is D71/3, D72/3, D76/3, D77/3,

17 D79/3, D81/3, D83/3, D85/3.

18 Yes, Mr. Stojanovic.

19 MR. STOJANOVIC: [Interpretation] Yes, indeed, Your Honour. These

20 are the documents that we have already spoken about. We were waiting for

21 translations of these documents. Now that we have obtained the official

22 translation, I'm referring to documents marked 71, 72, 76, 77, 79, 81, 83

23 and 85/3, we move that these now be admitted into evidence, Your Honours.

24 In compliance with our list, D1/3A and D39/3 need not be admitted.

25 I would like to use this opportunity, Your Honours, to say that we

Page 12600

1 have now received information that Mr. Vasic's statement, D70/3, was also

2 completed within the framework of 92 bis.

3 As to what we have been told by the registrar, this would be all

4 as far as our list is concerned.

5 JUDGE LIU: Well, we have some problems with the numbers I'm

6 afraid. Am I right that you withdraw the documents that were pending,

7 D1/3A and D39/3?

8 MR. STOJANOVIC: [Interpretation] That's correct, Your Honour.

9 JUDGE LIU: Thank you. And how about document D77/3?

10 MR. STOJANOVIC: [Interpretation] We move that the exhibit - I mean

11 D77/3 - be admitted into evidence.

12 JUDGE LIU: Thank you. Any objections, Mr. McCloskey?

13 MR. McCLOSKEY: No, Mr. President.

14 JUDGE LIU: Thank you very much, those document admitted into the

15 evidence.

16 As for the last documents, it's Mr. Vasic's 92 bis statement with

17 the number D75/3/1. Am I right?

18 MR. STOJANOVIC: [Interpretation] Yes, Your Honour. We have been

19 informed that the number is correct, D75/3/1.

20 JUDGE LIU: Thank you. No objections, Mr. McCloskey?

21 MR. McCLOSKEY: No, Mr. President.

22 JUDGE LIU: Thank you very much. This document is admitted into

23 the evidence. Thank you.

24 Well, Mr. McCloskey, are you ready or do you have any rebuttal?

25 MR. McCLOSKEY: I -- yes, Mr. President, I -- I have rebuttal. I

Page 12601

1 will hopefully be brief.

2 JUDGE LIU: Yes, please.

3 MR. McCLOSKEY: But before I -- I get to that, I wanted to just

4 take a moment to thank you, Mr. President, and Your Honours, for what has

5 been now over a year and a half of your very, very careful attention to

6 this case. It has been much appreciated as has the fairness by which you

7 have treated all the parties and I think everyone shares my view on that,

8 and by which the great patience and grace by which you carried out your

9 duties, which unfortunately I can't say I always met my own expectations

10 in that matter. In fact, last night I had words that should have been

11 unsaid and had no place for this Tribunal. I know you have made a great

12 effort to have this courtroom a -- the kind of a place that would stand as

13 an example for international justice, and I apologise that I -- I said

14 words that did not belong here.

15 You have seen us all for a year and a half. You know us in some

16 ways better than we know ourselves, our temperaments, our flash points and

17 our characters, and I know you go about your deliberations very carefully.

18 So let me just briefly respond, first, if I could, to the

19 arguments of counsel for Jokic.

20 First of all, I want to clarify that it's not the position of the

21 Prosecutor that Mr. Jokic should be held responsible for the incidents

22 that occurred in the area of Bratunac, and it is -- there are some cases

23 and under the joint criminal enterprise where perhaps this is appropriate.

24 It is not my viewpoint that in this case it is. I want you to begin

25 looking at this case seriously regarding Mr. Jokic on the morning of the

Page 12602

1 14th of July when he takes over as duty officer.

2 In addition, the indictment has mentioned factually that Mr. Jokic

3 directed one of the soldiers in the burial -- or the burial -- or the

4 retrieval of bodies at Kravica. It is not -- it is my position that the

5 Prosecution has not proven beyond a reasonable doubt that he had knowledge

6 that he was sending that person to Kravica. I think the evidence was that

7 on the morning of the 14th of July, there was a lot of bodies and -- in

8 Bratunac, and that there was -- certainly Major Jokic directed and ordered

9 his, at that point, subordinate down there to help out with that, but I'm

10 not satisfied that there is sufficient evidence to tie him into the actual

11 Kravica warehouse situation.

12 I would also like to clarify what I have clarified before, that we

13 are not charging Mr. Jokic as a commander either through the front door or

14 the back door, and you've heard my explanations for that over and over

15 again, and I won't -- I won't go into them.

16 And most of our argument was, I think, covered by the brief and by

17 Mr. Waespi, so I will -- won't spend much time at all, but I do want to

18 take up on a theme that Mr. Stojanovic left with us, where he acknowledged

19 that on the 14th of July, Major Jokic had knowledge of the prisoners in

20 the schools. This means that Mr. Jokic knew that there were thousands of

21 prisoners at Orahovac school, at Petkovci school, Rocevic, Kula, as we

22 have argued, where they had no business being. This is in no way, shape

23 or form a weigh station to prison or anywhere else, many of which were

24 these little guys with their berets, or their younger kids, no food, no

25 water.

Page 12603

1 And on the 14th of July, Mr. Jokic ordered one of his people to go

2 to Orahovac where he knew there were thousands of prisoners to go with an

3 excavator. An excavator is not a bulldozer. A bulldozer is a big

4 scraping thing that flattens and builds roads. An excavator dig holes.

5 No other reason in the world to send an excavator to Orahovac than to dig

6 graves.

7 You've heard Major Jokic is from Grbavci. This is the area.

8 You've heard everybody knew what was going on there.

9 And I just wanted to clear up one point. Exhibit 507, where there

10 is a brief reference about a message to Major Jokic about a dump truck and

11 a loader. Mr. Stojanovic mentioned that that was -- message was passed on

12 in the future tense, that it should be conveyed to Jokic. The official

13 translation that I have says, "At 2210 hours, the first battalion asked

14 for one loader, one excavator and a dump truck with a tarpaulin to be at

15 Pilica at 0800 hours, conveyed to Jokic and Milosevic." That's the

16 official translation that we have.

17 And finally, we know that Mr. Jokic ordered one of his men to

18 Kozluk on the 16th with an excavator. And we know that by the 16th of

19 July roughly a thousand men had been killed and buried at Orahovac,

20 roughly a thousand men had been killed and buried at Petkovci. Somewhere

21 between 500 and a thousand men have been killed and -- at Kozluk. So

22 somewhere between 3 to 4.000 men are dead, lying dead within a few

23 kilometres of the engineering compound when Major Jokic orders his man to

24 take an excavator to Kozluk.

25 The evidence in this case is clear. Mr. Stojanovic went through

Page 12604

1 it, made his arguments. You will see our arguments. I'm sure you will

2 find beyond a reasonable doubt that he is guilty as we have charged.

3 Now, let me turn to the case against Colonel Blagojevic. I just

4 want to remind the Court of a few things. One, counsel for Blagojevic

5 spoke of the Karremans-Mladic meeting issue. One -- one fact that cannot

6 be left out, it's -- in evaluating that material is it comes in from Major

7 Franken, who on the 11th of July stated the VRS spoke to them on the

8 radio, I believe, and this was at a time when there were many Dutch

9 soldiers in the custody of the VRS as hostages, and the VRS said, threaten

10 them, that if they -- if NATO got involved or if there was anything like

11 that, they would kill the hostages. So when you're looking at DutchBat

12 and Mladic and evaluating the situation there, don't forget that

13 historical fact.

14 The Defence also asked you to take great weight on the credibility

15 of witness Mico Gavric when he testified that Colonel Blagojevic told him

16 to look after the prisoners, but we agree with Mr. Karnavas that it is

17 your job to determine what is reasonable and what is not, and if there are

18 two reasonable explanations, you should accept the explanation of the

19 Defence. We're not -- we do not shy away from that, because it's clear

20 what is reasonable. And let me just make -- remind you briefly of Mico

21 Gavric, and you will see that it is completely unreasonable to accept him

22 as a truthful witness on that point.

23 Mico Gavric said in a question asked about whether or not there

24 had been any shelling in Srebrenica, and he said, "The Bratunac Brigade,

25 I'm talking about the Bratunac artillery battery, in fact did not fire in

Page 12605

1 the direction of the enclave until the 11th of July, 1995."

2 Well, having heard that comment, we found a document which is

3 Exhibit 856, and I'll just show it to you briefly. It was Colonel

4 Blagojevic's, as far as we know, first interim combat report where he in

5 the first paragraph said, "Pursuant to Colonel Lazic's verbal order we

6 fired two times two projectiles from howitzer 105 millimetre on Srebrenica

7 town. Projectiles were fired at 1907 hours."

8 So clearly the colonel is acknowledging he took these orders. And

9 105-millimetre howitzer on the town of Srebrenica is a very ugly thing to

10 do.

11 That's why I said on May 24th I wanted to give him credit. I

12 don't know if this war got to him like it did others, but on May 25th, he

13 gets no credit for following this order.

14 Also, there's been some issue about Pribicevac. Just look at the

15 next line: "Artillery observers from Pribicevac reported that two

16 projectiles fell in the vicinity of the Domavija building. Other two

17 projectiles were not observed."

18 Well, we know that from the little house at this village from

19 Pribicevac and from Kula hill that you can't see Pribicevac and witnesses

20 testified to that and that was confirmed, but we've also learned that

21 places like Snagovo are also areas, so I think this can be cleared up by

22 Pribicevac is referred to as probably an area in this particular message.

23 And as you saw, there were some heights above Pribicevac that were likely

24 an artillery sighting spot. I don't think it's a hugely relevant point as

25 to -- I think it's good to clear it up so that you can see that.

Page 12606

1 Also, Mica Gavric, if you recall, he was the one that was ordered

2 by Blagojevic to search the terrain on the 17th, and he acknowledged that

3 four children, four boys, were separated from the group. Of course, it's

4 our view that that was the continuing operation to separate the young men,

5 and this was a reflection of that continuing operation. And Mico Gavric

6 said there were 35 prisoners. I think it was Dusko Jevic said there were

7 200. Why would Mico Gavric underestimate the number of prisoners? We

8 have no evidence of what happened to those 200. Mico Gavric is not

9 someone to trust when it comes to caring for prisoners.

10 The document that came out under the hand of -- excuse me, not the

11 hand but the name of Colonel Blagojevic, 501, talked about this incident

12 and said, "Among the Muslim prisoners, there are four underaged children

13 between 8 and 14 who are being held in the military custody in Bratunac.

14 One of them told the commander of the unit that was searching the area

15 about a large number of Muslim troops committing suicide or killing each

16 other. We propose that this testimony be recorded by cameras for your

17 press centre."

18 This is clearly using children as propaganda to provide an

19 explanation why Muslims are dying. Why do you do that on the 17th of

20 September -- excuse me, 17th of July? Is this a newsworthy event by

21 itself that Muslims are committing suicide? I don't think it's any kind

22 of a defence unless you're worried about it.

23 Counsel for Blagojevic also ask you to look at Exhibit 480, which

24 is a 13 July document by Radoslav Jankovic, colonel from the Main Staff.

25 He argued that this document showed that Jankovic was not aware of the

Page 12607

1 murder operation. Well, please look carefully at that document. I won't

2 take the time to read it all now to you, but I can't see that in any

3 reasonable interpretation that I see.

4 He first talks about noting the various patients that are in

5 custody of -- of UNPROFOR and in their care, and the doctors of UNPROFOR,

6 people that as far as we know all survived, and he talks about the doctor

7 that -- or watching those patients. And he says in the first

8 paragraph, "I intend to send him away tomorrow under the pretext that his

9 help is not necessary." Well, we know what the "under the pretext"

10 means. He means he's going to lie to this guy to get rid of him. Why do

11 you need to do that? Why not keep these doctors around to help care for

12 people? It doesn't show that this is a document of goodwill and lack of

13 knowledge.

14 And then in the last paragraph he has a PS: "I think that if we

15 want to take over the enclaves of Zepa and Gorazde in the same way, it

16 will be necessary to present the operation in Srebrenica in the media so

17 as to show that we had rendered adequate treatment to civilians and even

18 to soldiers who surrendered their weapons."

19 This is a man that shared an office with Momir Nikolic, that was

20 one of perhaps three Main Staff officers that was present throughout the

21 entire time period. This is propaganda he's talking about. It's nothing

22 more than propaganda. Setting it up. If we're going to take Zepa, we

23 need to do it and present it to the world like we did it right. The world

24 knew, as you heard, within days that Srebrenica was not done correctly.

25 There is document that I -- as I was reviewing the argument that

Page 12608

1 is an interesting document that we put into evidence on that subject.

2 It's one of Dragomir Vasic's reports from the 12 July. He writes to his

3 superiors that Mladic is not -- is going -- something to the effect he

4 hasn't yet decided to do with the Muslim men. So from that document, it

5 appears that Vasic has not yet been allowed in on the plan to kill the

6 Muslim men, but it is not a document that suggests that there is not a

7 plan to kill Muslim men. But take a look at that document. That is the

8 one document that talks about this issue, shows that Mladic has this

9 fixation with the men. He's not telling Vasic it was probably one of

10 these meetings with civilian people present. He is not telling him what

11 he had in mind for the Muslim men. That is on the 12th of July. I

12 believe it is before they start getting separated and treated like

13 animals.

14 Mr. Karnavas said in an argument that you have no shelling of

15 civilians. Now, you saw perhaps both Mr. Karnavas and myself, especially

16 at one hour and 15 minutes we got a little excited at times. I don't know

17 if this is one of those times, but I need to respond to it. Of course we

18 saw shelling. The UNMO reports Kingori, he spoke of Kingori and the

19 Defence view of Kingori but the DutchBat reports the Muslim civilians.

20 Remember, if you can, the -- I think it was Boering, it may have been his

21 colleague, they went to Srebrenica on the 10th to meet with the -- with

22 the Muslim army there, and there was a lot of people surrounding the base.

23 You saw pictures of the crowd, and they -- testimony came in about a shell

24 that landed amongst the crowd, right in front of them, and wounded people

25 is my recollection.

Page 12609

1 Mr. Karnavas also argued and -- that Momir Nikolic was a

2 self-manager. I address you to that argument because to have any kind of

3 a self-manager in a military organisation is absolutely absurd.

4 Self-managers in the military become front-line fodder. They are not

5 allowed to self-manage themselves. Now, some officers give people

6 authority, pass on that -- their authority, though they retain the

7 responsibility, and it appears that Momir Nikolic was given the job to be

8 the liaison officer. He had a nice corner office. But we don't see any

9 evidence that he is somehow outside this organisation. This is so

10 fundamentally contrary, especially for an army of the JNA which was very

11 discipline oriented. It did not have the -- the discretionary rules that

12 some of the more -- the other western armies were developing at the time.

13 This is a tough army. People were not allowed to run amok. And he'd been

14 in that brigade for a long time.

15 The other thing I'd ask you on that point is what evidence is

16 there that there was any problems between Momir Nikolic and Colonel

17 Blagojevic? There really -- Mr. Karnavas mentioned something that Nikolic

18 said, but I don't recall any evidence that there were significant

19 problems. We can easily recall the issues that were going on up in

20 Zvornik between Drago Nikolic and Pandurevic and Obrenovic where it was

21 the -- you know, the issues of the security guy that didn't want to be --

22 have to do duty officer. He wanted his reports to be secret and, you

23 know, he had his own car, and these sort of competing issues that are a

24 result of the -- the way security worked and the establishment of the

25 counter-intelligence wing of that, and so we saw that there was tension.

Page 12610

1 Of course, despite that tension, what's the first thing Drago Nikolic do

2 but call his commander.

3 So I don't see a problem. And we had all these officers that

4 testified, and no one talks about a problem with Momir Nikolic. Some of

5 them don't like him, but we don't see an issue that there's a problem

6 between the two.

7 The other thing that is just fundamentally not reasonable, and

8 sometimes you forget because we've heard it so long, a commander can't

9 just say suddenly, "I don't have my intel and security officer. I can't

10 just tell you my left arm is gone." That makes no military sense. Now,

11 just because he is his commander doesn't mean he's guilty by definition.

12 That's not what I'm saying. But I think it's very important for you to

13 realise that. Popovic, no. Nikolic, no. It doesn't work that way.

14 Mr. Karnavas also said that Momir Nikolic did not coordinate any

15 units. And let me read you what Assistant Commander Trisic said on that

16 point. And this was a question from Mr. Karnavas:

17 "All right. Now I want to fast forward to July 12th, 13th and so

18 on. During that period of time can Captain Nikolic tell you that he had

19 been appointed the coordinator of the units that were in Potocari at that

20 time?

21 No, he didn't tell me.

22 When you were there did you see him by any chance coordinating

23 among the various units?

24 Well, he was there and he was doing the work and that is it,

25 coordination."

Page 12611

1 And then it goes off to other subjects.

2 I also want to briefly point out - I'm told my time is about up

3 and I think we should take care of that, I'm almost through - that he

4 states that Colonel Blagojevic is a man of no importance, just like

5 Nikolic, although Nikolic wants to be a man of importance, hence why he's

6 a guest at the UN Detention Unit. I don't know what that means. And then

7 counsel argues, but you don't see anybody reporting to Blagojevic.

8 Well, I want to take you back to the testimony, and I won't -- but

9 I -- of Dragomir Zekic. I believe he was the commander of the

10 3rd Battalion. He told Ms. Issa in testimony that he reported to Colonel

11 Blagojevic personally on the 11th and the 17th, and via communications on

12 the 12th, 13th, 14th, and 15th, and 16th. It's very clear from the

13 testimony. You'll see that.

14 And Trisic, assistant -- the assistant commander for rear

15 services, in an interview by Dean Manning, said that first he reported his

16 dealings with the logistics of the operational 12th and 13th to the corps,

17 and then he said, "After that, my commander, of course." I read that back

18 to him, if you recall, and I asked him, "Do you stand by that statement?"

19 And he said, "Yes, I do." So at that point, clearly we have people

20 reporting to Blagojevic.

21 We also have the witness who was a protected witness, but he was

22 the senior officer that was -- was with Colonel Blagojevic on each of the

23 important days, and he again describes to Ms. Issa how when they came back

24 together on the 11th, they did what a commander and assistant should do.

25 They reviewed the various documents and reports and familiarised

Page 12612

1 themselves with what's going on in the brigade. On the 11th. He said the

2 same thing on the 12th, the same thing on the 13th. And he says he's --

3 Blagojevic is with him at the time.

4 So you've got people reporting to him. You've got him there on

5 those evenings checking the records like he should, checking with people

6 like he should, and we know what was going on during that time frame.

7 Mr. Karnavas also asked you to look carefully and take credence in

8 the witness of Keserovic, a security officer. And I want just briefly to

9 read you about Keserovic, because I want you to do the same thing. It's

10 asked: "I want to ask you if this example I'm giving you is an internal

11 threat to the security of a unit. If prisoners within the custody of an

12 army are systematically abused by the people guarding them, can that

13 threaten the safety and security of that army?

14 A. That is a public matter. That does not fall under

15 counter-intelligence information in the sense in which I mentioned it or

16 in the sense in which it is treated by the rules of service and relevant

17 laws. This is something that has to do with order, discipline,

18 responsibility, something that may constitute a threat in relation to the

19 general security of the unit, but it cannot fall into the category of

20 secret counter-intelligence information. One's superior officer always

21 has to be aware of such information. That is to say the commanding

22 officer of the unit and also the person higher up in the chain of command.

23 Everybody has to be informed about this, and everybody has to take

24 measures with a view to resolving the problem, but it's a public matter,

25 so to speak."

Page 12613

1 Mr. Karnavas also told you that the MPs didn't know anything.

2 Well, look at the testimony of the protected witness that was a

3 high-ranking officer in that unit and what other witnesses said about him

4 and where he was, what he was doing. He was in Bratunac the night of

5 the 13th trying to get people to help his people guard the Muslim men.

6 Look at the testimony of MP Nikola Popovic. He and others are assigned to

7 guard the Muslims inside the school on the night of the 13th. Mile

8 Janjic, he's also guarding prisoners the night of the 13th and 14th,

9 around vehicles. Borivoje Jakovljevic, another MP. He's guarding people

10 around the Vuk Karadzic school. Slobodan Mijatovic, he also guarded

11 people at the school. And they tell various versions of what they see and

12 what they hear.

13 But when you look at them, remember, and this can be difficult

14 because many of these people were 92 bis, but the survivors, there were

15 really eight that have to do with Bratunac and the Kravica Supermarket.

16 Five were in vehicles. Four of those were around Bratunac, one in front

17 of Kravica, three were in schools.

18 What they say is remarkably consistent, and it is horrendous

19 Mr. Karnavas also said that nothing happened until the 13th.

20 Well, don't forget the testimony, it's 92 bis Witness P110. He's an old

21 guy, testified at the Krstic trial. He got separated from Potocari on

22 the 12th and got put into Bratunac on the 12th and put into one of these

23 buildings, and he gets asked this question:

24 "Q. Now could you tell us the Judges your experience that you

25 had and what was observed happening to the other Muslim men who were in

Page 12614

1 that room that particular night and the early morning hours that followed?

2 A. When we entered, there wasn't enough room and we complained

3 that we could -- we would suffocate, and then the Serb soldiers shot over

4 our heads and shouted, keep silent or we'll kill you all. And then we

5 fell silent. And someone in the area where we had entered said you 12

6 have to carry out the assignment given to you. Do you understand that?

7 He was speaking in a sharp tone. And then a group said yes, sir to one.

8 And then Serb soldiers came with flashlights and they lighted us up. And

9 then they ask where people were from. The people from Glogova, people

10 from Cerska, people from Bratunac, and people answered. And then they

11 said the people from Glogova, get up. One man got up. The Serb soldier

12 said, come out here. He left the warehouse to the left, the direction

13 through which we had entered the warehouse. We could hear blunt blows and

14 his screams and moans. When all this stopped again they came back with

15 their flashlights and calling out people from various places. Nobody

16 admitted to being from those places, so then the flashlight was pointed at

17 random."

18 He goes on to describe how people got taken out and they hear

19 shots, and sometimes they bring them back in and throw half dead or dead

20 bodies onto the crowd and people have to carry bodies out.

21 He also says that the night of the 13th he's gets transported up

22 to the area around Zvornik which he knows is near Karakaj, and this is

23 something else that the counsel has contested. This was the first trip up

24 to the area of Zvornik. This survivor says so. It's corroborated by

25 Dragan Obrenovic and Witness 130, and the records related to the IKM

Page 12615

1 forward command post. There's also a record at about 1.00 a.m., I

2 believe. It's a food record from the Zvornik food service showing that

3 food was delivered to the MPs at Orahovac at about 1.00 on the 14th. So

4 there's no question that this operation was fully under way by that time.

5 And I don't think I need to go into my further arguments on those points.

6 So those were the points I wanted to make, and we're at the end of

7 a very long road, and again I just want to give you my thanks and turn the

8 case over to my -- my colleagues.

9 JUDGE LIU: Thank you. Mr. Karnavas, do you have any rejoinder?

10 MR. KARNAVAS: Well, Mr. President, Your Honours, this is the

11 first time in 20 years that I have the opportunity, because where I come,

12 we don't get this opportunity. So I'm looking forward to it. But I will

13 be short. I'm just going to hit the points.

14 With Mr. Gavric, again what we see is the Prosecution doing what I

15 call the a-la-carte approach to the facts, taking what they like, leaving

16 the rest. Mr. Gavric, when he was testifying, apparently did not remember

17 the May 25th incident. It was brought to his attention during

18 cross-examination. He was shown the document, and then he indicated that

19 he recollected. In fact, if you go back to the submissions of the

20 Prosecution in their motion to reopen their case, just by coincidence they

21 had mentioned that. And again we saw that they mention one page, and then

22 if you went to the following page you saw where you got the full

23 understanding of Mr. Gavric's position. So I think you need to look at

24 all of the testimony of Mr. Gavric before you -- you reach a conclusion as

25 to whether he was being truthful or untruthful, because I find it rather

Page 12616

1 difficult to swallow that when a Defence witness forgets an incident or

2 forgets a fact they're just being untruthful, where if it's a positive

3 thing for the Prosecution, well, then, they're just credible. So just

4 please look at all of it.

5 With respect to the prisoners, we also have the testimony of

6 Mr. Zekic. I believe he said that there were 30 prisoners. Maybe Dusko

7 Jevic came across other prisoners. We don't know. But the bottom line is

8 you have the testimony. Please look it over carefully. I think

9 Mr. Gavric came here and tried to be as truthful and honest as he

10 possibly could, and that's exactly what he did, testified accordingly.

11 I was hoping I wasn't going to have to speak about Mr. Nikolic,

12 but I guess I'm -- I feel like -- like I have to.

13 Was he a self-manager? Well, anybody who doesn't report for six

14 days to his commander during the most important military campaign, I would

15 say he's self-managing. Also, if you recall, when I showed him the

16 document, the battle -- the combat order of July 5th, you recall how he

17 was agitated that he had not been shown this document. You know, pouting

18 like a little kid that he had been left out of the game and, therefore, he

19 was going to take his toys and go home, which is basically what he did.

20 He stayed in his office for those five or six days, whatever it was. But

21 then, if you recall -- I'll slow down for the interpreters. I'm getting a

22 little excited here. It's not good for my heart.

23 But also you might recall where we went to that one part in the

24 combat order with respect to the use of the military police, that they

25 were going to be used as reserves. But remember, he said that this was an

Page 12617

1 illegal and improper use of the military police. He was kind of vehement.

2 And I touched on that with others including Mr. Keserovic who said that

3 was fine. Mr. Obrenovic, he equivocated a little bit of course. You have

4 to remember the Obrenovic was the Prosecution's witness at that point

5 looking for a sweetheart of a deal. But there were other witnesses that

6 said there was nothing wrong with using the military police for reserve,

7 and Mr. McCloskey acknowledged that yesterday or the day before that they

8 were used for combat purposes.

9 But what was my point? My point was go back to the transcript. I

10 urge you, I beg you, I plead with you that you will see where he says that

11 had he known about this he would have reported him to Beara. So -- and

12 you have to keep in mind. Here is the guy -- I am going to get a little

13 excited now. Because of this self-management thing, you have to

14 understand, Your Honours that this was a captain, not even first class

15 reserve officer, but he was security, and this captain had the right to

16 arrest his commander, but his commander did not have the right to have him

17 arrested. There -- because he was security. It's a little bit like the

18 gestapo. They're in a different category. They have their own sets of

19 rules, and they have different powers, and they can do those sorts of

20 things. He had his own car. He didn't have to sign in when he went into

21 the headquarters. He came and went as he pleased. So was he a

22 self-manager? I dare say so he was.

23 I could go on and on about him, but I -- well, let me just touch

24 on one other point which goes back to (redacted) testimony. Who was

25 he coordinating? He was probably coordinating the military police that

Page 12618

1 were there, stand over here, stand over there. Where was there -- is

2 there one witness, one credible witness who says that he was given an

3 order by Momir Nikolic? One officer? Nobody came.

4 And whose burden is it to prove that? It's not mine. They could

5 have brought some people over. They brought one person, van Duijn, who

6 said that he saw from the hand motions that he was a coordinator. Well,

7 okay. Fine. I'm going to move on because I could go on for hours on

8 Mr. Nikolic.

9 The Jankovic report, the night of the 13th going into the 14th,

10 there's some room for interpretation. I agree with the Prosecutor.

11 That's what I call a reasonable, plausible explanation. That's why I find

12 it rather difficult that when they see something like that they

13 automatically dismiss it. They give it what we call the bum's rush. They

14 don't have any time for it. And what I'm suggesting is look at it all.

15 Consider the other plausible, reasonable explanations.

16 And I think when you look at that, factor also Major Franken's

17 comment when he comes up and he says, "I have the list of the people," and

18 his response is, "Yeah, so what? We've captured 6.000 others." And I

19 think, if I interpret that, is here is a man who has nothing to hide.

20 It's like, yeah, so what you took the names. Well, I'm taking an

21 accounting over here. Big deal. Nothing is going to happen to these

22 people. So you have to factor all of that in.

23 You know, the a-la-carte approach doesn't work. It helps them but

24 it doesn't work.

25 All right. We talked about reporting it, and maybe again -

Page 12619

1 because I was trying to cover so much - as I indicated four and a half

2 hours it's like giving Fidel Castro, you know, tell him to talk about the

3 revolution in four and a half hours. It's impossible. I needed three or

4 four days for my closing in all seriousness and I could have been

5 methodical and not repetitive perhaps, but I had to hit a lot of points.

6 But here is what I was trying to convey yesterday: That with

7 respect to these activities, these atrocities, nobody is reporting to

8 Colonel Blagojevic. He is going out in the field, and he's getting

9 reports from his battalion commanders because that's what he is concerned

10 with. There was no suggestion that Mr. Zekic or others weren't reporting

11 to him. That's ludicrous.

12 With respect to Mr. Trisic, first he was a Prosecution witness on

13 the list. They didn't bring him. And I think that to me tells me a

14 little bit. Why? There's the a-la-carte approach again. You never know

15 what that dish may serve. So when we bring him here, look at everything

16 in context. At one point when he's questioned by Manning or whoever it

17 was, he also had indicated that he remembers seeing Mr. Blagojevic in

18 Potocari, and that -- he recognised that that was a mistake. And

19 everybody, everybody, and I think that Mr. McCloskey probably will

20 probably agree with you - it's one of the few times - that there is

21 absolutely no evidence that Mr. Blagojevic was in Potocari on the 12th.

22 So why did Major Trisic say it? Was he trying to curry favour

23 with Dean Manning at the time? Was he trying to entrap or to implicate

24 Colonel Blagojevic? Could it be that he just missed -- was -- misspoke or

25 just thought he saw him but didn't see him, expected to see him there so

Page 12620

1 he just made an assumption? All of that is a possibility. Just like it's

2 a possibility that he might have informed him and a possibility that he

3 didn't inform him because he's getting some normal functional relationship

4 orders that are not out of the ordinary, perfectly normal within the

5 circumstances, and so -- and then again -- I got to -- I got to comment

6 about this.

7 Last week or whatever, the Prosecution wanted to introduce this

8 witness that had been certified. Fair enough. And I objected to it. It

9 comes in. And it comes in with the understanding that after all those

10 years, witnesses may not totally recall everything, may not have an

11 absolute independent recollection, but nonetheless the Court is going to

12 take that into consideration among with other things.

13 Well, can't we apply that principle to the Defence witnesses or

14 does that only work for the Prosecution? Of course it works for our

15 witnesses. Isn't it possible that after all those years that your memory

16 gets clouded, you know, confused a little bit, especially the way memories

17 work? You recall something, there are some gaps, you hear other things,

18 you learn other things, they fill in the gaps and somehow the memory gets

19 mixed up a little bit.

20 So I think if you look at -- you have to look at his entire

21 testimony. And I thought he was a very credible witness, and so I suggest

22 that you look at his entire testimony.

23 Now, with respect to P110, I did indicate yesterday, and I think

24 here again -- I think if Mr. McCloskey wanted to be fair to me he should

25 have said well, he did mention that there was one person at least that

Page 12621

1 said about the 12th. Because I said that yesterday. I never said there

2 was absolutely no witness that said anything about the 12th in Bratunac.

3 I just didn't recall the number, but I knew that he had come in from the

4 Krstic trial.

5 He says in one of the buildings. Which buildings? Do we know

6 that there was more than one building? Could it be that the gentleman was

7 confused, that he got the 12th mixed up with the 13th? The Prosecution

8 would have you believe, no, absolutely not. It's got to be the 12th. We

9 suggest that the gentleman might be mistaken. It could have been

10 the 13th. But he's only -- he's the only person that we have. And if

11 this was so important, why do it through 92 bis? Why not bring him here

12 and subject him to cross-examination if that was such a critical aspect,

13 that all of these things were happening on the 12th versus the 13th? And

14 I think that you need to consider as well.

15 Now, with respect to Mr. Keserovic. With respect to

16 Mr. Keserovic, you have to look at the entire testimony, and I just -- I

17 don't want to go in and take up too much time. There's a whole page I

18 could read, but I won't. I will just ask you to when you look at the

19 Prosecutor's trial brief with respect to paragraph 307 and onwards, just

20 kindly look at Mr. Keserovic's testimony on page 10641. There's a

21 question where I talk about the use of the military police, and it goes

22 down and I talk about the security organ. But I'll just read the last few

23 lines starting with line 18. He says: "In practical terms, this means

24 that any deployment or use of military police units is ordered and

25 commanded by the commander of that unit. As for specific tasks throughout

Page 12622

1 the military police services, the security organ has the authority to

2 issue a task and assignment to a section, department, or whatever the

3 military police has so that these tasks are then carried out by these

4 individual services regardless," I underscore that, "regardless of the

5 commander. But they could and should inform the commander about the

6 results of those activities depending on the case or mission at hand."

7 That's at page 10641.

8 Again, we're not trying to shy away from the evidence. We're

9 asking you not to look at them a la carte, that's all.

10 And I would have preferred to have served you with a five- or

11 seven-course meal. Instead we skipped the entrees and the dessert, and I

12 was only able to give you a little snippet of my closing.

13 In any event, getting back, just that one last point, and I'll now

14 sit down. With respect to the testimony regarding the 12th, again the

15 Prosecution in their brief it would be found on paragraph 257, again I

16 don't want to go into it, but I think I would urge the Court to look at

17 the various pages in the transcript. One would be page 1277, would be

18 line 16 and 17; and then again on page 6741 to 6746. There was a question

19 posed by Mr. Stojanovic to Witness 130, and I think you need to look at it

20 all in context. And it is our firm belief that there's another reasonable

21 and plausible explanation, and that is that the folks begin arriving in

22 Orahovac on the afternoon of -- of the 14th and not on the night of the

23 13th, as suggested.

24 I don't want to take up a lot of your time. I could read it and

25 go over it, but I don't think that's the purpose of this rejoinder, which

Page 12623

1 incidentally is quite enjoyable to do and quite useful.

2 Since I won't get another opportunity to speak, I just want to say

3 again, again that I am -- it has been an honour to have appeared before

4 you, and I consider it a privilege, actually, to have represented Colonel

5 Blagojevic. I want to thank everybody, the booths, technical,

6 interpreters. I know they've had a tough time because I speak fast and

7 maybe use some language that they're not familiar with in court. Ms.

8 Katherine Gallagher has been extremely helpful. Mr. Ram Doraiswamy has

9 been tremendous, and we should all be proud of him. And I want to thank

10 my team. I want to thank Mr. Momirov over here who has been our case

11 manager, and I have had the best co-counsel, Ms. Tomanovic. Thank you.

12 JUDGE LIU: Thank you very much, Mr. Karnavas.

13 Mr. Stojanovic, do you have any rejoinder?

14 MR. STOJANOVIC: [Interpretation] Yes, Your Honour, just a few

15 sentences.

16 If I understood Mr. McCloskey correctly, he agrees that there is

17 not sufficient evidence for paragraph 46.4, the Kravica warehouse, and he

18 does not charge Dragan Jokic as a member of the joint criminal enterprise

19 for opportunistic killings in the Bratunac Brigade. This would be in with

20 98 bis, 47.1, 47.3, 47.4, paragraphs of the amended joinder indictment,

21 that is. That is what I'm referring to.

22 I hope that I did not receive a mistranslation or something. I

23 hope that this is actually what has been said.

24 As for the arguments presented during the rebuttal, there was a

25 thesis that Jokic knew about the prisoners in Petkovci, Rocevic, Orahovac,

Page 12624

1 and Kula, and there was then our thesis that that does not mean that he

2 knew of the fate of these prisoners. It is for you, Your Honours, to

3 assess the facts. Is this sufficient evidence to prove that this person

4 knew of the fate of these prisoners?

5 The Prosecutor says in his rebuttal that these schools were not

6 detention centres. That is correct. In Bosnia-Herzegovina, there is not

7 a single place or a prison for such a large number of prisoners.

8 Your Honours, you had the opportunity to see the site itself of

9 the prison of the Zvornik Brigade. It was quite literally one room. So

10 if the prisoners are kept in schools, does that mean that a person can

11 infer that they would be executed? I think that this is a conclusion that

12 is pretentious. That is the opinion of this Defence.

13 The Prosecutor says that in the notebook of the duty operations

14 officer for the 16th of July there is a note made again by Witness P130,

15 who testifies about this, that the request for machinery and trucks from

16 the 1st Infantry Battalion was conveyed to Jokic and Milosevic. I kindly

17 ask you, Your Honours, that when assessing this evidence you look at this

18 same exhibit and also the note relating to the morning of the 17th. And

19 this same person, P130, notes that the 1st Battalion asks what was going

20 on with this machinery and this truck, which clearly indicates that the

21 machine and the truck did not arrive in the morning of the 17th.

22 How did he convey this to Jokic? How can Jokic direct the burial

23 operation in Branjevo on the 17th, therefore? Again, Your Honours, it is

24 up to you to decide.

25 And finally, in his rebuttal today, the Prosecutor said Jokic, on

Page 12625

1 the 16th of July, sent an excavator to Kozluk. He had reason to know why

2 that excavator was going there.

3 Your Honours, I tried to speak about the statement made by Witness

4 Mitrovic Milos as much as briefly possible. He spoke about this, and you

5 will recall that he took the skip torpedo machine there which has a very

6 small bucket. Therefore, its capacity is very limited. So he could not

7 carry out the assignment given to him by his platoon commander, not Dragan

8 Jokic. And this same Prosecution witness says that after an hour, because

9 he could not do this, the ULT220 came and finished the job.

10 So what would be the answer? If Dragan Jokic knows why the

11 machine was supposed to go there to Kozluk, and if Dragan Jokic knows what

12 the characteristics of these machines are, and he does know because he is

13 an engineer, why is he sending the wrong machine then? Why is he then

14 sending a machine that cannot do what was required and what Dragan Jokic

15 was supposed to know about?

16 The Defence reiterates it was actually the other way around. This

17 is proof that at that moment, he did not know why the skip torpedo went

18 there. At that moment in Kozluk, he could have been doing thousands of

19 things. Or, rather, the skip-torpedo could have done so many different

20 things that it was capable of performing.

21 At any rate, Your Honours, all of this shows the degree of

22 difficulty of the job before us.

23 I do not wish to be pathetic in any way. You will weigh all the

24 evidence, everything that all of us said in this courtroom. And first and

25 foremost, you will assess what the truth is and thus reach a conclusion

Page 12626

1 about everything that had happened.

2 Allow me, in closing, to thank you all. This was an experience of

3 a lifetime, as far as I'm concerned. I will probably never again have

4 this kind of experience. And I hope I did not hurt anybody as I did this

5 job, and I hope that I did not cause anyone any pain as I performed my

6 duties. Thank you.

7 JUDGE LIU: Thank you very much. Are there any other matters that

8 the parties would like to mention at this stage? Yes.

9 MR. McCLOSKEY: One last housekeeping matter for the record that

10 we all -- counsel had talked briefly about because there's been kind of an

11 odd situation with -- with P130, and we wanted to get on the record

12 something more official about him, because we know about the various

13 motions and all, and I know that was a difficult issue for the Court, but

14 I think in putting our heads together, we came up with -- and this was

15 done very -- very briefly so I'll need some help. Instead of just kind of

16 leaving that motion out there as not part of the record, if we could agree

17 to something to the effect that P130, if called to testify, would say that

18 he did not testify fully and completely at the time he testified here and

19 that he in fact testified falsely at places.

20 This was the foundation of the motion. This is something that's

21 been in the air. I don't know how else to deal with this issue, Your

22 Honour, but I think we should get it on the record in a simple way like

23 that so it's not sitting in the background. The -- and I go back to my

24 culture. We have all the statements, but I would never put those

25 statements to the trier of fact because of the detail that was in them

Page 12627

1 until the Judges allowed us to. So that's why you didn't get them, but --

2 and I think that's probably the way counsel would have had it as well

3 since we come from that same culture.

4 So I apologise for the awkwardness of that situation, but I think

5 for the record, we have to clear this up.

6 JUDGE LIU: Thank you. Mr. Karnavas.

7 MR. KARNAVAS: Thank you, Mr. President. Well, Mr. McCloskey did

8 come up to me and he did mention 130, and my respond was oh, the perjurer.

9 That's how I characterise him. Because somebody who comes to court, takes

10 an oath to tell the truth, the whole truth, and nothing but the truth --

11 see, that whole truth, that's what gets you into trouble sometimes.

12 That's why Ms. Celanovic was having a hard time as a lawyer answering

13 those questions. But that's the only way to characterise this guy. So if

14 we need to condense it and give it the Reader's Digest version, as I would

15 say, we just say 130 committed perjury. Full stop, end of story. There's

16 nothing more to say.

17 I don't think that we should -- and I would love to see -- I would

18 love to see something from the Prosecution charging with perjury, because

19 I think that's what we need to do. This is a serious court. These are

20 serious matters. And if somebody has come in and has committed perjury,

21 he should be punished. That's the end of the story.

22 So I'm afraid I cannot be generous with this fellow. But he's a

23 perjurer and he committed perjury, so we should just say P130 committed

24 perjury, full stop, and I'll be happy with that.

25 JUDGE LIU: Thank you. Mr. Stojanovic.

Page 12628

1 MR. STOJANOVIC: [Interpretation] Your Honours, we also believe

2 that no court ruling can be based on this witness's testimony. The system

3 that I come from would qualify the testimony of this witness as perjury or

4 false testimony. Should the judgement be based on the testimony of this

5 kind of witness, then there should be a retrial. That would be the only

6 legal remedy.

7 I think that this is sufficient for us. We shall only say that we

8 cannot accept the testimony of this witness, and his testimony has no

9 weight for us whatsoever.

10 May I be allowed to remind you, during my work in the field for

11 these three years, having heard the story of Witness P130 and having asked

12 him myself whether he had been to Petkovci, to Branjevo or to --

13 MR. McCLOSKEY: [Previous translation continues] ... It is a legal

14 concern that I have for the record that this has all been out, but I think

15 we're all in close enough agreement that there is a problem with P130's

16 testimony. All I want to do is acknowledge that that is part of the

17 record, that he did not tell the whole truth, that he has admitted that he

18 testified falsely, and so that you can consider that, because without that

19 there may be an allegation that you would have considered that and it

20 wasn't on the record, thereby your judgement could be flawed. I don't --

21 I hope that won't happen, but as we know, we don't know what's going to

22 happen in the Appeals Chamber.

23 So given the importance of the topic and we're so close on all

24 this, that's what I think solves the problem.

25 JUDGE LIU: Thank you.

Page 12629

1 MR. STOJANOVIC: [Interpretation] Precisely, Your Honour.

2 JUDGE LIU: Well, I believe that during these procedures, each

3 party has the right to offer their assessment of the testimony of one

4 witness and the views from both parties has already been in the

5 transcript. We will take note of that. But don't forget the Bench will

6 read his testimony and arrive at our own conclusions concerning with his

7 testimony. It is so decided.

8 Well, it seems to me that we are approaching to the end of these

9 proceedings of this case. The hearing of this case began on May 14, 2003.

10 Before and during the proceedings, two other co-accused, Mr. Nikolic and

11 Mr. Obrenovic, pleaded guilty, and the Chamber entered convictions for

12 them accordingly.

13 Also, the Judges and the counsel from both parties made a field

14 trip to certain of the locations mentioned in the indictment. According

15 to Mr. Stojanovic, we sat in this courtroom for 145 trial days, not

16 including the days for motion hearings, Status Conferences, opening and

17 closing statements. We entertained about 135 witnesses called by both

18 parties, including both live and 92 and 94 witnesses. The Chamber

19 admitted over 1.000 documents into the evidence.

20 Since the hearing of this case has come to its end, on behalf of

21 Judge Vassylenko and Judge Argibay, I would like to thank both parties for

22 their hard work, the devotion, and kind cooperation in assisting the Bench

23 to find the truth in this case.

24 We believe that during the proceedings both parties demonstrated

25 great professionalism, diligence, and a profound understanding of the

Page 12630

1 jurisprudence of this Tribunal. The Bench benefited a lot from the

2 presentations of both parties in the past 16 months.

3 The Bench would also like to express our sincere thanks to all

4 those who contribute to this case, the Court Deputy, court reporter,

5 usher, interpreters, and the translators, technicians, as well as the

6 security guards. Without any of them, we just could not keep the

7 proceedings going for a single day.

8 Finally, please allow me to quote what Mr. McCloskey said in his

9 last sentence in his closing argument. He said, "It is with great honour,

10 respect, and confidence that we pass the case that we have cradled for

11 eight years on to you for your final judgement." We have a feeling that

12 the burden has been shifted on our shoulders.

13 The Chamber will withdraw and deliberate in a private room from

14 now on, and the judgement is expected to be delivered at the end of this

15 year or at the early beginning of next year.

16 Ladies and gentlemen, in accordance with the Rule 87 of the Rules

17 of Procedure and Evidence of this Tribunal, as the Presiding Judge of this

18 case I declare the hearing of this case is closed.

19 The hearing is adjourned.

20 --- Whereupon the hearing adjourned at 4.24 p.m.