Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9495

1 Wednesday, 10 October 2007

2 [Defence Closing Statement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.31 p.m.

6 JUDGE ROBINSON: Mr. Tapuskovic, your closing arguments.

7 MR. TAPUSKOVIC: [Interpretation] Good afternoon, Your Honours.

8 Esteemed honourable Judge Robinson, honourable Judge Harhoff, honourable

9 Judge Mindua, also I wish to say good afternoon to my learned friends,

10 Mr. Waespi, Ms. Edgerton, Mr. Docherty, and Mr. Sachdeva.

11 Today we are going to put an end to our professional clash that we

12 conducted to the best of our ability, and I must say that it was an honour

13 to face such a wonderful team of Prosecutors. A few words about the

14 proceedings themselves. It was a privilege to participate in perhaps the

15 most expedient - so far - trial before this Tribunal, which I believe led

16 to the fruition of the first principle envisaged by the Statute, namely,

17 an expedient trial. It is not a meaningless principle and I can only wish

18 that other trials had proceeded equally speedily without the accused

19 waiting for years for the trial to begin. I also believe that the

20 principle of a fair trial has been observed as well and the Defence has

21 succeeded in raising all the issues that you will ultimately deliberate

22 upon and conclude on.

23 Maybe I could have done with a little more time to prepare for the

24 argument today and maybe a little more time to produce the final brief,

25 but anyway.

Page 9496

1 Today at the beginning of my closing argument I want you to bear

2 in mind that I have full understanding and sympathy for the witnesses like

3 any normal human being. But today concerning the issues before you and

4 the crimes, as they are called in the indictment, I have to speak

5 professionally, with dignity, and I just have to ask you not to put me in

6 a situation where I would have to answer questions like, Am I disputing

7 that somebody lost their life. After many years of professional career, I

8 had to do with serious crimes as well, but this is the first time I'm

9 defending a person charged with thousands of murders.

10 It is alleged here that my client is responsible, for instance,

11 for 12 snipings and 19 incidents of shelling, which puts me in a difficult

12 situation. Just before the start of this trial I have to say the Defence

13 faced a rather big problem, namely, the stipulated facts. Perhaps this is

14 not the right time to deal with these issues, but I will never cease to be

15 sorry that we did not manage to introduce into evidence certain pieces of

16 video footage that would show us a better picture and demonstrate that at

17 the moment the conflict was starting it was something a bit different,

18 something other than the -- than the civilian area that was depicted here.

19 This area would have been shown to have been armed beforehand. It is only

20 recently that books had begun to be written about this and evidence has

21 started to emerge, but this is not the point I should be making now. My

22 colleague warns me to slow down for interpretation.

23 It is quite certain that we as the Defence team could have done a

24 little better to demonstrate what had happened in that area in those first

25 days of the conflict, but I believe that the Chamber was perfectly right

Page 9497

1 in concluding that the background events are perhaps of marginal

2 importance. The historic expert for the Prosecution finished his

3 historical background with the 7th February 1994, and he did well because

4 my primary interest as Defence counsel on behalf of my client is in the

5 history that began on the 7th of February, 1994, after the decision was

6 made to withdraw heavy weaponry 20 kilometres away from the centre of

7 Sarajevo to a place called Marin Dvor. That is the history I will be

8 dealing with. And since there are no major large-calibre political

9 decisions in that particular segment of history, I will mainly be dealing

10 with facts.

11 It is not easy, Your Honours, to find oneself in a situation where

12 you have a valid judgement against an accused who is sentenced to life,

13 despite everything that I had mentioned earlier about the number of

14 incidents involved, and to face a qualification that was formulated a

15 little before the beginning of the trial; namely, that it was an inherited

16 guilt. Inherited guilt, as far as I know, does not exist. That concept

17 is foreign to criminal law, and I believe that this highest court of law,

18 an international court of the United Nations, and this Chamber will bear

19 that in mind. You know perfectly well that there is no judgement that

20 cannot be varied in the light of new circumstances, and you know that even

21 these rules of evidence and procedure stipulate clearly that an appeals

22 judgement even can be varied if a new trial produces new facts that lead

23 to new conclusions. That has already happened. It has happened in my

24 career, in the country where I used to live, and in this country as well.

25 There have been acquittals after retrial, but even if I had been the

Page 9498

1 judge, even if I had already written my judgement, if I came across or

2 somebody produced to me new evidence, even I, who does not change his

3 opinion lightly, would find it incumbent upon me to rethink what I have

4 already decided.

5 It is my duty here in my position to bring new light to the

6 matters covered by this earlier judgement, because if we proceed from the

7 fact that a certain number of facts have been established already in a

8 prior trial and these facts, regardless of the time and circumstances

9 involved, can just be copied, transferred, on to another person, that

10 would not be appropriate, it would not be consistent with the spirit of

11 establishing criminal responsibility.

12 I don't want you to think that I will only philosophise here, and

13 I'm going to try to be direct. You know that this indictment focuses on a

14 long-standing campaign of shelling and sniping against the civilian

15 population of Sarajevo with the ultimate aim allegedly of spreading terror

16 amongst the civilian population. These attacks, it is said in the

17 indictment, resulted in many incidents of death and wounding.

18 In this closing argument I have to emphasise that the main corpus

19 of this criminal act alleged in the indictment, namely, that it was a

20 civilian area and that it was an attack on civilians as such, in order for

21 someone to be found responsible for this it must be established beyond any

22 doubt that it was, indeed, a civilian area and that it was, indeed, a

23 civilian population and that this man sitting today before you in the dock

24 had no other intention than to use his powerful army against that civilian

25 population.

Page 9499

1 I will be dealing today with the facts that should demonstrate to

2 the Trial Chamber whether for the entire duration of this conflict under

3 both indictments, but particularly this one, it was indeed a civilian

4 area. I had suggested a witness Ajdadzic at one point who described in

5 his book the preparations for what was going to happen, the trenches that

6 had been dug back in 1992. Unfortunately, I was unable to bring him and

7 other witnesses, officers from the Army of Bosnia and Herzegovina, that

8 could testify to that. The Prosecution brought two officers, one

9 low-ranking and another one who led the 1st Corps of the BH Army. And you

10 heard logically, primarily from civilians, victims, and exclusively the

11 civilian police. I am going to show you a decision that shows that each

12 of these policemen was a member of the BH Army. This is something that

13 you should take into account in your deliberations.

14 It was depicted by the Prosecution as an area that was practically

15 free of any army, replete with civilian population that was heinously and

16 mercilessly attacked, resulting in many deaths. I don't know whether I

17 can find the one I'm looking for, but many documents are yet to emerge. I

18 have to remember late Judge May, but Judge Robinson said at one point,

19 "Those who survive shall see, those who live shall see." Similarly, I

20 believe that the facts, the truth about everything that happened in this

21 wretched country - and I'm not trying to glorify anything here - was due

22 to a conflict that was needed by a handful of people. They started it

23 all, each one of them got their own state, and some are about to get their

24 own state but at the cost of many, many lives.

25 Just a few days ago a document emerged, a very important document

Page 9500

1 that you, Your Honours - and I'm very grateful to you for that - accepted,

2 admitted into evidence. It has to do with everything that I will be

3 dealing with today. It is a document whose authorship has not been

4 established yet, but it is an official document nevertheless. It says,

5 among other things ...

6 [Defence counsel confer]

7 MR. TAPUSKOVIC: [Interpretation] Your Honours, my colleague is

8 reminding me, although I had no intention of mentioning -- am I allowed to

9 use this document, Your Honours? I didn't think that it was necessary to

10 go into closed session because the document that you accepted into

11 evidence yesterday, that we tendered. It's a document that still has no

12 DD005188. It still hasn't received a number.

13 JUDGE ROBINSON: Mr. Waespi.

14 MR. WAESPI: Yes, I think I know what Defence alludes to, that's

15 an excerpt from a diary which was given to the Prosecution under

16 protection of Rule 70. I think it might be more cautious to go into

17 private session if the Defence wants to raise that document.

18 JUDGE ROBINSON: Private session.

19 [Private session]

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 9501











11 Page 9501 redacted. Private session.















Page 9502

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8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 [Open session]

15 THE REGISTRAR: Your Honours, we're back in open session.

16 MR. TAPUSKOVIC: [Interpretation] Thus we heard excerpts from a

17 document that speaks of terrorism, not terror; these are two different

18 things: Terrorism and terror. And I will show you through some very

19 convincing evidence that there were acts of terrorism there as well. Some

20 of these matters have been discussed at this trial, and a long time ago I

21 showed a document to one of the witnesses, I'm not sure whether it is in

22 evidence or not, concerning an explosion on the terrace of

23 General Halilovic, whereby his brother and his wife were killed. It was

24 said to be a shell from the VRS, but Halilovic himself is emphatic that it

25 was a remote-controlled explosion --

Page 9503

1 JUDGE ROBINSON: What's the difference between terrorism and

2 terror?

3 MR. TAPUSKOVIC: [Interpretation] Terrorism is an individual act

4 related to a specific situation, if you are requiring me to think freely

5 about it. But terror is something that became a charge for the first time

6 before this Tribunal. It was not envisaged before by international law.

7 It is here at the ICTY that terror became one of the charges. It was not

8 even in the first version of the Statute, but it will now certainly become

9 part of legal history.

10 JUDGE ROBINSON: Isn't it in the Geneva Conventions and the

11 Protocols -- Additional Protocol I? It's not a new crime.

12 MR. TAPUSKOVIC: [Interpretation] Your Honours, it would require a

13 debate. I'm proceeding from the fact that -- from the assumption that it

14 has already been verified by international law, and I would not like to go

15 into this today. It is a matter for an entirely different, separate

16 discussion, no matter how interesting the issue is in itself. Although I

17 do want to move to the problem at hand, namely, the indictment in this

18 case which deals with issues of terror.

19 In order to do that, I have to refer to the allegation made by the

20 Prosecution in the final brief, where on page 129, paragraph 469 it is

21 said that by signing the anti-sniping agreement and by participating in

22 negotiations on heavy weapons, the accused had effective control of the

23 SRK, as obvious from the fact that casualties decreased for a while. It

24 is even said in the brief that precisely the fact that Dragomir Milosevic

25 signed the anti-sniping agreement proves that he had control over the

Page 9504

1 Sarajevo-Romanija Corps.

2 Not for a single moment will the Defence deny nor can the accused

3 deny that he was the commander of the Sarajevo-Romanija Corps. Having

4 taken up that position, however, and having signed the anti-sniping

5 agreement two days later, an agreement which would not have been signed,

6 or rather, which was not able to be signed for a long time before that and

7 there was pressure for it to be signed, and now this is used -- being used

8 as an additional element to show premeditation on his part. They came to

9 see him as the commander of the Sarajevo-Romanija Corps to sign this;

10 after that, the incidents decreased in number - and we'll see what sort of

11 incidents they were. And now this is being used as evidence indicating

12 the characteristics of his premeditation, his mens rea, whereas it's

13 precisely the other way around in reality. The good will of one side, for

14 example, yesterday it was mentioned that Karadzic said, Very well, we

15 won't touch you, we won't touch the tunnel, and then it was again

16 interpreted as a sign of malevolence on the side of Republika Srpska. In

17 spite of the anti-sniping agreement, incidents continued. The OTP puts

18 forward the example of a French soldier who was killed as evidence that

19 all this continued.

20 I now have to show you, for example, what an eminent witness

21 before this Court, Harland said on page 399 to page 400, line 7. He

22 said:

23 "The representatives of the United Nations observed that the

24 fighters of the Army of Bosnia and Herzegovina were shooting at people on

25 their own territory," and mark this, "in order to create panic. And for

Page 9505

1 this reason the international factors protested with the Bosnian

2 authorities."

3 If you bear in mind the allegation that the SRK did everything it

4 did in order to cause panic and everything else that was mentioned here,

5 well, here you have indisputable evidence from the representatives of the

6 United Nations who say that the soldiers of the Army of Bosnia-Herzegovina

7 themselves shot at themselves and their own people in order to give rise

8 to panic. And finally, on page 395 from 18 to 24, this same witness said

9 that soldiers of the Army of Bosnia-Herzegovina were doing more shooting,

10 you'll find that there, and I think he even added that they had so-called

11 snipers, concealed marksmen.

12 In the OTP brief, it says that this was a French soldier and that

13 this was a breach of the anti-sniping agreement, but I will read out to

14 you a letter from none other than Alija Izetbegovic, that's document D66,

15 he was writing to one of his own commanders, saying that he had just come

16 back from a meeting with the French ambassador and that he had been

17 unpleasantly surprised to hear that there was evidence that out of 24

18 murders of their soldiers or 24 killings of UN soldiers -- or UN

19 personnel, not counting those on Mount Igman, more than a certain

20 percentage were done by the Army of Bosnia-Herzegovina.

21 THE INTERPRETER: Could counsel please repeat the percentage.

22 JUDGE ROBINSON: You're being asked to repeat the percentage.

23 MR. TAPUSKOVIC: [Interpretation] I will read out again what

24 Alija Izetbegovic wrote, that the French ambassador had told him that more

25 than half of the 24 murders had been done by the Army of

Page 9506

1 Bosnia-Herzegovina. The document is D66, it was admitted into evidence a

2 long time ago, and in the indictment it is further alleged that soldiers

3 of the Sarajevo-Romanija Corps - and this is very important for what Your

4 Honours have to decide when considering sniping - sniping on trams --

5 well, there is indisputable evidence that it was done by soldiers of the

6 Army of Republika Srpska, that's what was said here, but in D67, on page

7 17, this is a report written by a policeman of Bosnia-Herzegovina on the

8 28th of October. It was compiled on the 26th of October, 1994, concerning

9 an event which occurred on the 25th, and all this is very important.

10 And he says that on the 26th of October, 1994, he was sent out to

11 observe the work of the UNPROFOR commission which had the task of

12 establishing, by an on-site investigation of the tram, the direction from

13 which shots were fired on the tram. And then he goes on to explain this,

14 and then he says, On that side of the tram one could clearly see damage to

15 the body of the car by bullets from infantry weapons. The holes that are

16 a consequence of bullet hits, the UNPROFOR representative pushed some

17 metal rods into these bullet-holes and said something to the people around

18 him in French. The policeman had with him his own interpreter and he said

19 the others in the team did nothing and said nothing. When I put a

20 question, the interpreter said to me that the officer said that the shots

21 had come from the Muslim side from a neighbouring white building which was

22 in Sibenska Street, and the Bel Ami bar was in that building. The

23 interpreter even said that the officer could even establish from which

24 window the shots were fired. And you have a large number of incidents

25 here of shooting at moving trams. If I have time, I will have to address

Page 9507

1 this. There are even examples provided of crimes of intent to kill when a

2 fragmentation bullet explodes and kills three to four people, you have

3 several such incidents on this schedule concerning snipers who are

4 supposed to target someone directly if they want to kill them.

5 Your Honours, fortunately I have succeeded in obtaining

6 irrefutable documents, I'm not making anything up. Let me tell you, I

7 perhaps will not mention a single Defence witness, there are over 50 of

8 them. I will refer exclusively to the testimony of Prosecution witnesses

9 and the documents I have before me. Times have changed and we were able

10 to go to the archive of the Army of Bosnia-Herzegovina, and this may have

11 been a slip on their part but this remained available, and I was able to

12 see that soldiers of the Army of Bosnia-Herzegovina fired on their own

13 people. And you know very well that everything that was shown, all the

14 victims shown in the Sarajevo area were represented as victims of sniping

15 by fighters of the Sarajevo-Romanija Corps.

16 Look at D48, a document signed by a colonel, the first and last

17 name don't matter. He says: Yesterday on the 14th of October, 1994, one

18 of our soldiers, soldier, well that's a question, but let's say he was a

19 soldier, try to go over to the other side in the Grbavica area. Our

20 soldiers opened fire and probably wounded him.

21 Every attempt to cross over to the opposite side was punished by

22 death. There is not a single shred of evidence nor will you ever be able

23 to find any that any defector was shot by the Serb side while trying to

24 cross over to the other side. There was a bridge that was open, the

25 Brotherhood and Unity Bridge, which is long gone. And anybody who wanted

Page 9508

1 to could cross over it. And anyone who did not do so there was shot at,

2 just as this man was shot at, and that's not the only document. I have to

3 show you D216, where a soldier boasts that from a tall building called

4 Palma on the other side of the Miljacka River which was under the control

5 of the Army of Bosnia-Herzegovina - and I'm not making anything up I'm

6 just giving you examples from documents - he observed someone trying to

7 across over to the other side to defect and fire was opened and the rest

8 is in the document.

9 On the 3rd of November they fired on the escort of Mr. Silajdzic

10 and that's 147, and this was represented as something done by the Serbs,

11 but more importantly in document 205 it says that shots were fired at an

12 elderly woman who tried to cross over to the other side and she was

13 killed, according to his report, and brought back to the same side.

14 That's D205. That's precisely what it says verbatim, shots were fired

15 from Loris, a high-rise building on the other side of the Miljacka, it was

16 under the control of the Army of Bosnia-Herzegovina. This is a document

17 which is self-explanatory. And finally I have document 149 signed

18 personally by Vahid Karavelic, who according to this document said, In the

19 evening hours fire from infantry weapons was used to prevent a person

20 defecting on Grbavica. And there's more of all this, but I don't think I

21 need to explain what this means. This is irrefutable evidence showing who

22 was shooting directly at civilians. I have some dozen documents showing

23 that snipers have to have night sights and they must be active day and

24 night, round the clock.

25 For all this to make sense, Your Honours, and I'm going back to

Page 9509

1 something I mentioned earlier, I don't want to abuse anybody's feelings

2 here, but I'm forced to show three brief clips which all together -- all

3 three together are no longer than three minutes in total. I wish to show

4 them now. These tactics of committing crimes against one's own people and

5 then portraying these crimes as having been committed by the other nation

6 I think a journalist, a witness, Mr. Bell, said that nobody was innocent

7 here, but on the Sarajevo front it was always only the Serbian side that

8 was blamed. However difficult it is to watch this, such things were shown

9 to the entire world as crimes committed by one side. In this television

10 war, as Mohatarem termed it, it is well-known who the winner was and is,

11 but things have to be put in their place and I think the only place to do

12 so is the court.

13 Regardless of whether something happened 12 years ago and a

14 political or military judgement was passed after as little as 24 hours,

15 let's now see before Your Honours based on irrefutable evidence what

16 happened actually on the 28th of August, 1995. Is this not the same thing

17 that happened in these individual incidents where a man was killed by an

18 ordinary rifle while trying to defect to the other side? These three

19 brief clips which I have to deal with, Your Honours, I have to say that I

20 was in two minds as to whether I should show you only these three, the

21 shelling of Markale in 1995, the hit on the television on the 28th of

22 June, 1995, and what was established there -- has it been established

23 beyond any reasonable doubt? No. I think it's quite the other way

24 around. In one case it's quite certain that it has been established

25 beyond any reasonable doubt that it was actually done by the Army of

Page 9510

1 Bosnia-Herzegovina.

2 So let's view these three clips briefly, these three clips which

3 show the method, the tactics employed -- I'll come back to this if I have

4 time to analyse it, to the armed conflict.

5 JUDGE ROBINSON: I see Mr. Waespi on his feet.

6 MR. WAESPI: Yes, can we have the exhibit numbers, please, of

7 these three clips?

8 [Defence counsel confer]

9 MR. TAPUSKOVIC: [Interpretation] 620 -- P620, D91, and P623. I'm

10 sorry, before we see this it was shown to the whole world, and based on

11 this the whole world quite justifiably responded as it did. No one can

12 view this with equanimity but one has to face the truth, Your Honours.

13 And after all the evidence has been presented judge what happened. I will

14 comment on one clip right away and the other two when the time comes.

15 JUDGE MINDUA: [Interpretation] Mr. Tapuskovic, while we are

16 waiting for this video I would like to go back to what you've just said a

17 moment ago concerning certain witnesses, apparently from the BHA, such

18 Ajdadzic who would have said that even back in 1992 trenches were being

19 dug. Could you tell me why these witnesses were unable to come or why you

20 couldn't bring them.

21 MR. TAPUSKOVIC: [Interpretation] Your Honours, I'm glad,

22 Your Honour, that you ask me that question. Of course that was one of our

23 main ideas when we were preparing for this trial. Only two witnesses have

24 been brought here which belonged to the top, the commanding top of the

25 Army of Bosnia-Herzegovina, but to be quite truthful I was hoping these

Page 9511

1 would be court witnesses, just as Hansen was. I may be wrong. He was, or

2 rather, the commander of the Army of Bosnia-Herzegovina, Rasim Delic, is

3 one of these; the commander of the 12th Division Prevljak and Ajdadzic who

4 in the final stage of the war replaced Karavelic and then at the time of

5 the NATO air strikes and a little before that became the commander of the

6 1st Corps of the Army of Bosnia-Herzegovina.

7 These were witnesses we were unable to establish contact with.

8 These are the so-called hostile witnesses. It would have been futile to

9 try. We did try a little, but what happened with Delic happened. He was

10 here in the Detention Unit. I could have put just a few questions to him

11 about the documents he signed. In these books where they now speak of

12 their sly strategy, that has to do with the hills, that cunning strategy

13 of theirs, and the conviction prevalent to this very day that the Serbs

14 were up there on the hills overlooking Sarajevo and simply firing, but I

15 think I have acquired or obtained documents which show the real truth of

16 this. It would have been better had we been able to introduce these

17 exhibits through these witnesses, but this was beyond our power.

18 JUDGE MINDUA: [Interpretation] Thank you very much.

19 MR. TAPUSKOVIC: [Interpretation] To move on to the key issue here

20 as Defence counsel, I feel that unless this chief characteristic of the

21 crime alleged against the accused is dealt with, that is, that this was a

22 civilian area, that these were civilians as such and that they were fired

23 at as civilians, well, let's see whether this actually was a civilian area

24 and whether it can be described as such. All the time the number of

25 250.000 civilians was repeatedly mentioned. I thought that the OTP would

Page 9512

1 be able to demonstrate on what basis it was estimated there were 250.000

2 civilians -- 250.000 civilians there. My learned friend Mr. Whiting in

3 his closing argument said there was 78.000 soldiers there. However many

4 civilians there were there, 250.000, there were 40.000 Serbs among them.

5 And if I have time I'll come back to deal with this, these 40.000 Serbs

6 down there were also held hostage by Serbs, they were hostages. And --

7 well, it's a moot point who was a hostage was down there. The side that

8 was up there on the hills ...

9 [Defence counsel confer]

10 MR. TAPUSKOVIC: [Interpretation] My colleague is right, who was

11 whose hostage. I'll go on to deal with that later, but I wanted to point

12 out something else now. Was it of any significance to those people who

13 were up there on the hills that they had friends, relatives, maybe a

14 brother or a sister down there? Could it have been easy for them to

15 shoot, to fire from those hills unless they were forced to? I am speaking

16 to the period of the indictment against General Milosevic. But let's

17 first deal with those hills and Count 7 of the indictment. Just a moment.

18 [Defence counsel confer]

19 MR. TAPUSKOVIC: [Interpretation] I apologise, Your Honours. I

20 just had the indictment handy, but I'm getting on, it seems. I apologise,

21 Your Honours. I don't want to be imprecise. We often refer to Count 7 of

22 the indictment where it says first that on the 7th of April, 1992, these

23 separation lines were established. I think that in the course of these

24 proceedings in paragraph 7 these lines were established in 1992, but what

25 matters is here. In the indictment it says that after that the city was

Page 9513

1 subjected to blockade and relentless bombardment and sniper attacks. Much

2 of the bombardment and sniping was from positions in the hills around and

3 overlooking Sarajevo from which the attackers had a clear, detailed, and

4 commanding view of the city and its civilian population."

5 It was with this conviction that all the witnesses you examined

6 here arrived, including General Rupert Smith, Mohatarem, Butt, Demurenko

7 even, one of the Defence witnesses, and they all spoke in this vein

8 initially. When I asked witness Butt where his position had been he said

9 on Mali Hum and in the further examination he confirmed quite clearly who

10 was at Zuc and Hum, that big Hum. It was well-known here that it was the

11 Army of Bosnia-Herzegovina that held those two hills. When I asked

12 Knustad, he was at Colina Kapa. Colina Kapa is one of the hills of

13 Trebevic which is predominant, it overlooks everything, not far from the

14 positions of Republika Srpska where the trenches were, and there is no

15 doubt that the hill called Debelo Brdo was also taken by the Army of

16 Bosnia-Herzegovina, not to mention Mojmilo. All this was established

17 through the testimony of international witnesses.

18 But let me go back to the documents and the witnesses. These only

19 two witnesses, soldiers belonging to the Army of Bosnia-Herzegovina, and I

20 have a document here, D110, introduced through Witness Hadzic in the form

21 of an order, I have this document before me now, the Chief of Staff,

22 Colonel Rizvo Pleh ordered that all vital facilities, Grdonj, Borije,

23 Colina Kapa, Debelo Brdo, Mojmilo, Adzici, Stupsko Brdo, Vis, Zuc must

24 have wire communications with both sides. It's a document that

25 irrefutably shows that all the hills were held by the BH army. What's

Page 9514

1 arguable perhaps is Grdonj, but even this Grdonj hill is a dominant

2 feature, and even Spicasta Stijena which became notorious as far as the

3 accused is concerned was under the control of the BH army. One of the

4 witnesses clenched his fist here and showed you that a person who would

5 reach the top would practically commit suicide. From that ridge it was

6 impossible to fire.

7 In any case, after looking at this document one could say that the

8 VRS had perhaps higher and more dominant view at one point in Trebevic and

9 at one point in Zlatiste and had a view of Sarajevo, one part held by the

10 Bosnian side and Grbavica, Nedzarici, and Dobrinja held by the Serbian

11 side. This order of the 20th March 1995 shows that howitzers were placed

12 there on Hum, so many mortars, Mojmilo Brdo, Bresce Brdo, Majevica, let me

13 not enumerate them all. There are more documents. This one is 418,

14 another one is 195, all speaking of the disposition of heavy weapons on

15 Mojmilo hill. At one point it says Mojmilo hill, direction of fire

16 Zlatiste; another access of fire, Gavrica Hill. Not only did they

17 therefore hold these hills. The BH army had its most powerful weapons on

18 those hills, not the VRS, as it was concluded in the Galic case.

19 This Tribunal -- the Prosecution, rather, is asking you to simply

20 copy the facts established in Galic to this case. In paragraph 576 of the

21 indictment it says that the Prosecution claims that the overpowering

22 weaponry and ammunition and the territorial predominance held by the VRS

23 should be the pivot of the criminal responsibility of the accused in that

24 campaign against civilians in Sarajevo. So they're talking about

25 geographic advantage and overpowering weapons. The Defence has shown that

Page 9515

1 there was no geographic advantage and certainly no advantage in the level

2 of armaments at the relevant period. We have shown that not only on the

3 basis of a Defence witness's testimony but also international witnesses.

4 I'm sorry that I could not bring journalist Van Lynden who

5 testified in Galic but could not come here. It is on his evidence that

6 important conclusions of the Trial Chamber in Galic are based. He said

7 that because of the terrain, because Sarajevo is an elongated city running

8 along Miljacka River and because the Bosnian Serbs held all elevations, it

9 is possible to wipe out entire streets in Novo Sarajevo and in the centre

10 of the town. He was the crown witness for the Prosecution; however, he

11 couldn't come here.

12 In Rasim Delic's book it is written that he had spoken to him on

13 the 15th of January, 1995, after the meeting at Dudakovic and Van Lynden

14 expressed his readiness to continue to report from all critical areas

15 suggesting to appoint a group of reporters who would assert the just

16 struggle of the army.

17 Van Lynden and his evidence served as the basis of all those

18 conclusions in the Galic case.

19 In paragraph 144, which was taken as a stipulated fact, says SRK

20 forces used and took advantage of natural topographic features. The

21 evidence, however, shows that it was the BH army that took advantage of

22 these natural elevations. And all this is shown in another paragraph, 146

23 to be based on Van Lynden's testimony.

24 Now, as for the level of armaments on both sides of the relevant

25 time, the period of the indictment, as far as the VRS is concerned I can

Page 9516

1 be very brief. This exclusion zone was established on the 7th February

2 1994, and that is part of the legacy of Dragomir Milosevic. Some say that

3 he could have done more as the second-ranking man in the VRS, leader of

4 the Sarajevo-Romanija Corps, and we have document P802 which claims that

5 as the final brief of the Prosecution puts it on page 132, paragraph 484,

6 they say that this document P802 shows that the accused five days after

7 the agreement on the exclusion zone suggested that the use of heavy

8 weaponry be resumed. He did say something similar, but that was just a

9 suggestion at the moment when he was not the commander and when he cannot

10 be held responsible in the terms alleged in the indictment. It was a

11 suggestion that I would say is perhaps understandable at the time. It was

12 winter-time and certain things were simply impossible to remove during the

13 winter. It was all under the control of the UNPROFOR and the UNPROFOR was

14 later satisfied that all had been done.

15 But there is another document, D303, regarding heavy weaponry.

16 This document was done on the 1st of January, 1995. What is held against

17 Dragomir Milosevic concerns the 10th of February, 1994. This document,

18 however, is dated 1st January 1995. Why am I saying this? Immediately

19 after the signing of the cease-fire agreement which was supposed to last

20 until April that year, we have this document of Rasim Delic who says there

21 as far as heavy weaponry and its exclusion are concerned - let me just

22 focus on the most important points - this process should not be hurried

23 and weapons should not be placed under UNPROFOR control. Rasim Delic

24 writes this on the 1st of January, 1995, whereas heavy weaponry had to be

25 removed back in -- back in 1994 by 7th February.

Page 9517

1 As opposed to this we have this charge against Dragomir Milosevic

2 because of his suggestion, whereas we have a clear document of the BH Army

3 showing that they had no intention of removing their weapons. True, in

4 May when it was already quite certain that the BH Army would launch an

5 offensive, although the Prosecution in their final brief emphasised that

6 at time, the summer of 1995, Sarajevo was brought to its knees under the

7 pressure of Milosevic's forces. But we didn't hear a single witness who

8 denied that the Bosnian army's offensive started on the 16th of June,

9 1995.

10 As far as the heavy weaponry is concerned, it was taken back from

11 the UNPROFOR by both sides once the offensive started, and this document,

12 D12, shows precisely that, that both sides started violating the exclusion

13 zone resulting in 1500 explosions in one day, on Tuesday, and 1200

14 explosions on Wednesday. As far as combat in this civilian area is

15 concerned, only on one day on the 16th of May and another day, the 25th of

16 May, when the VRS was bombarded by NATO, from Sarajevo, from BH-held

17 Sarajevo, 1.000 80-millimetre and 120-millimetre and 60-millimetre shells

18 were fired. If the allegation is that one Serbian shell killed 43 on the

19 Bosnian side, then how many on the Serbian side were killed by a thousand

20 shells? I'm not making this up. This transpires from the documents found

21 in the archives of the BH army.

22 Let us look, honourable Judges, at what happened with the weaponry

23 of the BH army in this critical period. Let us take only General Rupert

24 Smith on page 3359-16, 17 he said that the BH army was not always stronger

25 in numbers, but they were getting new weapons. Rupert Smith assumed his

Page 9518

1 position in the force that will launch air-strikes against the VRS. On

2 page 3358-12-13 he says he was aware that Bosnian troops and supplies were

3 moving through the tunnel all the time. An international UN

4 representative says on page 329, Weapons reached Muslims thanks to the

5 support of the Islamic community throughout the world. On page 416 it is

6 said that the Bosnian side was getting a lot of weaponry all the time, but

7 they never received heavy weapons or tanks, that's what he said here, but

8 in the document that he wrote, and that's document P19, that's what he

9 said on the 2nd of July, reporting to his superiors.

10 "Since the Bosnian offensive started two weeks ago, the number of

11 Bosnian heavy weapons used in the vicinity of UNPROFOR installations has

12 increased. Some people in the UNPROFOR see in this a Bosnian intention to

13 provoke an anti-artillery attack by the UNPROFOR that would thus be

14 involved in the conflict against the Serbs."

15 But the main point for us is this, that the number of heavy

16 weapons in use was increased and that the concentration of heavy weapons

17 is not larger in the vicinity of UNPROFOR installations but elsewhere.

18 Thus, the entire area in Bosnian hands in Sarajevo was covered by heavy

19 weapons. Harland states this not once, but repeats it on page 378 and

20 379.

21 The witness confirmed that the tunnel was in use continuously

22 throughout the indictment period, and the tunnel was used for the

23 transport of weapons and ammunition. Another witness, Mr. Mohatarem who

24 spoke about the media war and the TV war, the theatre, as he put it, he

25 said on page 751, Serbs are now in a weaker position because the Bosnian

Page 9519

1 army is now stronger in numbers, is receiving better weaponry. That was

2 at the time of the offensive. (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 [Private session]

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 9520

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 [Open session]

11 THE REGISTRAR: Your Honours, we're back in open session.

12 JUDGE MINDUA: [Interpretation] Mr. Tapuskovic, I'm sorry to

13 interrupt you. I hope this will be the last time. I'm going to make an

14 effort not to intervene again. We have heard a lot of witnesses,

15 Prosecution and Defence witnesses, but obviously - and you will correct me

16 if I'm wrong - all those witnesses said that the BH had more personnel

17 than the SRK. But on the other hand, maybe because of what was inherited

18 from the JNA, the SRK had more weapons. You obviously spoke about one of

19 the witnesses who said that towards the end certain countries, certain

20 Muslim countries helped the Muslim side achieve a position of superiority.

21 I'm not sure if it's on this basis that you say that the BH was better

22 equipped and had more weapons than the SRK or is it maybe that -- is it

23 maybe that following this agreement on the exclusion of heavy weapons and

24 because of the winter season, General Milosevic's troops could not move

25 their weapons in the particular terrain, and that is why they found

Page 9521

1 themselves out-gunned. So what I'm asking you is you seem to be saying

2 that contrary to what the witnesses say, practically the SRK was not as

3 well equipped in terms of guns as some witnesses say.

4 MR. TAPUSKOVIC: [Interpretation] Maybe you have not read the

5 footnotes in our brief where we mention a great number of evidence

6 attesting to the fact that the BH army in the period of the indictment was

7 much better armed than the VRS. I noted many documents to respond to the

8 claims of the Prosecution. On the 7th of February it was already the last

9 days of winter, the weapons were removed towards Nisici and Trnovo.

10 Sporadically in places the army left something behind perhaps, but

11 generally the UNPROFOR verified all this and concluded that the heavy

12 weaponry was removed, and whatever weapons were left behind were put in

13 storage under UNPROFOR control.

14 I just showed you a BH army document that says that they had not

15 done so in January 1995. When I say that the VRS was out-gunned, I mean,

16 first of all, that the heavy weaponry was removed 20 kilometres away,

17 whereas the BH army kept arming and re-arming throughout that period and

18 that the embargo did not really apply to it. The exclusion zone that

19 should have come into effect back in 1993 became ever more replete with

20 weapons and the communication between the fighters in Sarajevo and in

21 Central Bosnia was never interrupted. They used the tunnel, which many

22 witnesses testified was used to resupply and replenish the BH army. You

23 interrupted me at the perfect place, and I wish you interrupted me more

24 often in this way because this has been very useful. Because right now if

25 you have finished I have another document that provides irrefutable

Page 9522

1 evidence about this.

2 JUDGE MINDUA: [Interpretation] Thank you.

3 JUDGE ROBINSON: First of all it's time for the break.

4 --- Recess taken at 3.58 p.m.

5 --- On resuming at 4.23 p.m.

6 JUDGE ROBINSON: Mr. Tapuskovic.

7 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours.

8 Your Honour, Judge Mindua, I may not have been sufficiently clear

9 in the course of my arguments. I am quoting mostly from what others have

10 said concerning arming. I have before me a document which, in the most

11 convincing and well-argumented way, shows how the Army of Bosnia and

12 Herzegovina armed itself in the indictment period, that's D305, and it is

13 a tape-recording from a session of the Presidency of the Republic of

14 Bosnia-Herzegovina held in August 1995 at which there was a serious

15 discussion between the supreme commander of the Army of Bosnia-Herzegovina

16 and the Prime Minister, Mr. Silajdzic. In the course of this discussion

17 it was shown in an indisputable way how the Army of Bosnia and Herzegovina

18 had armed itself before and during the indictment period and was still

19 arming itself.

20 And I will give you but a few examples. For example, in an

21 argument with Silajdzic, Izetbegovic said, "In the past 15 days alone we

22 have brought in 26 air-lifts of weapons." Who flew these weapons in? Do

23 any of you know who flew them in? Do the people know who did it? These

24 are anonymous people, completely anonymous people. 26 air-lifts. The man

25 who came had been in Germany, the wounded one, he was away for two years.

Page 9523

1 He knows what the army was like in 1992. He came back and he says the

2 army's unrecognisable. This is a real army, it's now well-armed and

3 well-trained. This is what Alija said and he repeated it more than once.

4 And then he points out the following. 26 cargo planes arrived over the

5 past few days, 10.000 rockets from multiple rocket-launchers, and then air

6 bombs, and other weapons.

7 And then Silajdzic said that his sister, the ambassador in

8 Pakistan who had resigned, was taking care of the delivery of weapons by

9 ships and planes. One ship had arrived recently and been intercepted by

10 NATO, and then $2 billion for weapons are mentioned. And then, for

11 example, Silajdzic says concerning weapons procured in Turkey and there

12 was some problems about this, he says the people who are doing this, trust

13 me, I know who these people are. I know these people, you don't. These

14 are people who did not sleep for nights on end loading ships in far away

15 countries. And then he compares that to those 26 air-lifts.

16 So that was all taking place at the Presidency of

17 Bosnia-Herzegovina. You have this exhibit, it's D305. The supreme

18 commander of the Army of Bosnia-Herzegovina and the prime minister are

19 vying with each other concerning the amounts of weapons brought in by air

20 or by ship, and then Rasim Delic gets mixed up in all this and talks about

21 the time when he took over the army in 1993 when it was a paramilitary

22 force and now he says the following: "I can tell you that as of June last

23 year," and this is taking place in the summer of 1994, so he is referring,

24 or rather, the Presidency meeting took place in the summer of 1995 and he

25 says that the year before as of June, so that's 1994, "as of June last

Page 9524

1 year we have been in a strategic position not just to defend ourselves,

2 but to take the initiative."

3 The chief of the General Staff Rasim Delic said this and he

4 mentioned June which is more or less the time just before Dragomir

5 Milosevic took over command. Not to mention P336, a document of the Army

6 of Republika Srpska, we can have our reservations about what it says, but

7 they say that there are about 270.000 soldiers of the Army of

8 Bosnia-Herzegovina who already have 120 tanks. But I will round off this

9 topic and I will go on to speak about the geographical situation and the

10 situation concerning weapons, or rather, I will recapitulate. In the

11 time-frame concerning Galic, the BH army had gained supremacy in territory

12 and weapons, and as regards the army Dragomir Milosevic inherited another

13 thing and that was the sanctions. In addition to the international

14 embargo which never applied to the Muslim side, there was now an embargo

15 from the Federal Republic of Yugoslavia and the Serbian state. As of that

16 point in time, not a single weapon arrived. There is no evidence to show

17 that any did arrive. The number of men did not increase by a single

18 soldier.

19 I won't mention who submitted this report, but it says that - and

20 this is in evidence - it concerns a report where it says that the SRK at

21 the time of the offensive had 13 to 15.000 soldiers and the soldiers were

22 for the main part reservists recruited locally in Sarajevo. They lived

23 there with their families as was the custom in the former Yugoslav

24 military system. So 13 to 15.000, that's an excellent estimate. At the

25 time all this began, there were 18.000 and at the time of the offensive

Page 9525

1 there were 15.000. And this was reported by an eminent officer in a

2 high-ranking position. What happened to these people? They were killed

3 in the fighting which had gone on for years. What did they die of? What

4 were they killed by? Was it because they were spreading terror? If they

5 were the ones spreading terror, how could so many of them have got killed?

6 The terror that my learned friend spoke about, the primordial fear

7 which the primal fear, this fear was there for everyone, it was felt by

8 everyone, civilians and soldiers alike. If someone had a strategy of

9 terrorising and killing civilians, it would not have been possible for

10 several thousand of their soldiers to be killed. There is a church that

11 has been built on Mount Romanija overlooking Sarajevo and so far the names

12 of 3.000 victims, Serb soldiers, have been inscribed on the walls, have

13 been engraved in the stone. So all this shows that that area was a

14 theatre of heavy fighting, of serious conflicts, and one cannot

15 characterize this as a civilian area and speak of civilians as the sole

16 targets at the time of the events in this indictment.

17 I will speak about this even more precisely at the end of my

18 closing arguments, but there is indisputable evidence in writing showing

19 that in August 1994 there was a certain number of men, 18.000, and in the

20 1st Corps alone there was 67 to 68.000 men. If you consider that the

21 units of the 3rd Corps amounted to 34.000, the 4th Corps amounting to

22 15.000, the 7th Corps 32.000, along with the police forces also

23 participated - and I have evidence about the police forces - this amounts

24 to 140 to 150.000 men.

25 Judge Robinson, at one point you told me that I should not allow

Page 9526

1 myself to make such estimates off the top of my head, but now I'm showing

2 you documents which indicate this. So 130 to 140.000 men participated in

3 the offensive in the summer of 1995, and this is the time when the OTP

4 said Sarajevo was on its knees. I have a number of documents here. I

5 cannot dwell on them too long, but let's take an example.

6 Witness 140, W-140, on page 2117/17-25 and 2118/1, 2, 3, that's a

7 policeman who was conducting those investigations and I'll come back to

8 those later on, said that everyone in Sarajevo was armed, all the

9 policemen in Sarajevo, that is, were armed, and he knew that the police

10 force was part of the Army of Bosnia-Herzegovina. Document D3 -- 133

11 contains something very important, although it's part of a book, but one

12 can see that it's a decision issued by Alija Izetbegovic:

13 "All units of the reserve forces of the Ministry of Interior

14 Affairs of the Republic of Bosnia-Herzegovina are hereby resubordinated to

15 the Main Staff of the Armed Forces of the Republic of Bosnia-Herzegovina

16 to carry out combat operations against the aggressor."

17 At the time of the offensive there were about 150.000 men who set

18 out on the offensive. I think there is no doubt about that, and I must

19 mention this although it may not be so important but I must mention it

20 because it strengthened the desire to protect one's life and limb.

21 It's -- it may not be important for the indictment, but it is for the

22 Defence, and that's document -- Defence document 145 which is again a

23 report of the security service saying that in this offensive, the summer

24 offensive, one of these corps, I think the 7th Corps, will have a

25 Mujahedin unit in its composition. And it is well-known that this

Page 9527

1 Mujahedin unit does not take prisoners of war. If you know that someone

2 like that is participating in an action against you, then of course your

3 defence must be very persistent. I showed you this document a long time

4 ago and it bears a certain weight in all this.

5 And now it's very important to point out how this area of combat

6 operations was broadened and what the significance of the tunnel was. The

7 tunnel had a multiple significance: It was humanitarian but also used for

8 military purposes. It practically annulled certain things. With the help

9 of the tunnel and the geographic prevalence of the Army of

10 Bosnia-Herzegovina it -- this led to broadening of the area of combat

11 operations. David Harland said on 374/12, 375/2, the existence of the

12 tunnel made it possible for General Delic to have complete control of the

13 Army of Bosnia-Herzegovina. In Sarajevo in the part which was under the

14 control of that army, and that part of Sarajevo had full communication

15 with the forces of the Army of Bosnia-Herzegovina in Central Bosnia.

16 As of that point there is constant cooperation between the units

17 in Central Bosnia and the units active in the area of responsibility

18 within Sarajevo. And after that one can no longer speak of an area within

19 Sarajevo because according to the testimony of Witness Hadzic the troops

20 mainly rested in Sarajevo and went through the tunnel into the fighting

21 going on at Nisici and Trnovo. He went on to say that the Muslims indeed

22 used the tunnel for military purposes to conduct attacks against the Serbs

23 in other areas, and then they would come back to the town. And that was

24 one of the reasons why the tunnel had been dug. That's what

25 Witness Harland said on page 378/1-379/9. And Muhammed Mohatarem W-44

Page 9528

1 confirmed that the tunnel was used for the entry and exit of soldiers of

2 the Army of Bosnia-Herzegovina because of the actions on Mount Igman and

3 therefore the tunnel could be a military target. This is on page

4 743/22-744/3.

5 Rupert Smith confirmed that the troops coming in and going out of

6 the tunnel were military target 3351/13-17 and he went on to add that he

7 knew that the Army of Bosnia-Herzegovina used the tunnel, but he was not

8 informed as to the direction they were leaving in, 3371/12-14. Then you

9 have these documents, D52 and D -- D152 --

10 THE INTERPRETER: Interpreter's correction.

11 MR. TAPUSKOVIC: [Interpretation] -- And D304 which show beyond

12 doubt how the units moved through that tunnel, according to what roster or

13 schedule in order to prepare properly to go out and carry out combat tasks

14 outside the Sarajevo theatre, as is mentioned here, and that's how we can

15 establish based on these documents something very significant with the

16 help of their superiority in weapons, their geographic position which was

17 superior, and their superiority in manpower which they had always had and

18 the possibility of having normal communications through the tunnel, at

19 least when military operations were concerned, all this led to a change in

20 the tactics of the Army of Bosnia-Herzegovina, and it's set out with

21 crystal clarity in document P492, that's a Prosecution document, and I

22 will draw your attention to a part which is indisputable and follows from

23 what the commander of the 1st Corps of the Army of Bosnia-Herzegovina,

24 Vahid Karavelic stated here.

25 He said the following:

Page 9529

1 "Therefore, in 1994 we changed our tactics and we tried to take a

2 large part of our forces outside the city to make it possible to have a

3 battle in the areas outside Sarajevo, manoeuvre, combat operation."

4 And he went on to add:

5 "In early 1994 we went into a counter-attack and many of our

6 forces were deployed outside the city because we had concluded the city

7 could not be maintained. In the course of 1994 we restored a lot of the

8 territory we had lost during the VRS offensive. And most importantly, we

9 tried to encircle part of the VRS forces surrounding Sarajevo."

10 So who was surrounded now in Dragomir Milosevic's time? Who was

11 under siege? In the presence of a tunnel which had broadened the areas of

12 combat operations on the one hand and on the other hand in the presence of

13 all these other factors in which the BH Army was superior, such as arms,

14 geographic advantages and the advantage in personnel.

15 Karavelic also said on page 4142, 19-22: "In these tactics, the

16 tunnel was used only for military purposes and to supply the city with

17 weapons."

18 He stated that before you here. In addition to what is contained

19 in this document. What else could this have led to but for the people in

20 Nisici, Trnovo, and Grbavica, and in other places to defend themselves, to

21 try to save themselves because very few of them were left.

22 Now, let's look at this from another vantage point. There is no

23 doubt that civilians were mixed in with soldiers, for example,

24 Witness Nicolai, W-98 confirmed and explained his previous statement in

25 which he said that snipers were sometimes soldiers and sometimes civilians

Page 9530

1 carrying weapons and that every man and boy in Sarajevo was armed and that

2 the military authorities were able to control their soldiers but not the

3 armed civilians.

4 Your Honours, the statement of a foreign observer, officer Eimers

5 is very significant, that's document 585. In addition to what he stated

6 here directly, that is, that civilians were used to carry out military

7 operations, he said, and I have to read this from his report: "when we

8 once established where it was," he's referring to mortars, "we would

9 either arrive too late or we would not have permission to go in."

10 And this is very important, he said: "They never opened fire from

11 the same location twice so that when we arrived it would already be too

12 late." And there's a statement that remains here in relation to that

13 worst event that the forces of Republika Srpska held mortar positions for

14 a year in the same place and that they were able to read the target. And

15 this is incomprehensible, that they would only have to pull the trigger

16 and two years later they would still be able to hit the same target.

17 Your Honours will have to evaluate such statements, I'll come back to this

18 later, but let's hear what else Eimers has to say: "When they shot at the

19 exit and entry points to the tunnel," he's referring to the Serbian side

20 now, "when there was civilians and soldiers, you would never know who

21 started shooting first. In that context discussion of civilian victims

22 became ever more serious. The Bosnian army did nothing to protect

23 civilians in the tunnel area and that's what protected their operations.

24 The special feature of that tunnel was that it was used by both civilians

25 and soldiers."

Page 9531

1 He then goes on to speak about Hrasnica and says that nobody

2 controlled the soldiers. There was civilian authorities there, but they

3 all had to answer to the brigade commander, whereas the Prosecutor says

4 that Hrasnica was a civilian area and one of the pieces of evidence is the

5 statement of Witness Dukic, who said that it was a civilian area in 1992,

6 but then he was arrested and until January 1995 he was in prison. But now

7 this witness is allegedly able to confirm that Hrasnica was a civilian

8 area. He goes on to say that artillery fire was not fired on mortar

9 positions in response. Both sides had mortars which they handled well.

10 Then he goes on to speak of victims and then he mentions the following.

11 "The army of the Bosnian Serbs, firing from Ilidza, from

12 anti-aircraft weapons would hit civilian vehicles on the road."

13 But then he goes on to say: "The Army of Bosnia-Herzegovina did,

14 indeed, use civilian vehicles for logistics, both for military and for

15 civilian purposes on that road. And one could not know whether there were

16 soldiers or civilians in the vehicle. There were trucks on which

17 machine-guns or heavy anti-aircraft weapons were loaded." And then he

18 finishes by saying that the forces of the Army of Bosnia-Herzegovina broke

19 off all contact with him in the winter of 1994/1995 because, he says, "In

20 the course of the winter the Bosnian army received support and supplies

21 from the Americans. We saw them reconnoitring all over Sarajevo to

22 establish where they could succeed." That is a statement by Officer

23 Eimers, a Prosecution witness who found time to come and testify here from

24 a distant front line in Asia.

25 This mixture of civilians and soldiers shows in the best possible

Page 9532

1 way to what extent this was something which could in no way be referred to

2 as a civilian area. This witness Dervisa Selmanovic was a member of the

3 Armed Forces of Bosnia-Herzegovina and she was told at work not to wear a

4 uniform because she would be safer if she was wearing civilian clothes,

5 that's page 603/9-12. And Your Honours know very well how this is

6 regulated by international law.

7 Eimers said something else here before you on page 480/9-21, he

8 says that soldiers were ordinary citizens during the day and they would go

9 to the military positions by night, to the east and west of Mount Igman.

10 When crossing from their houses to the trenches they did not always wear

11 military clothes, so it was difficult to establish whether, in the course

12 of these movements, they were carrying out military activities. I don't

13 want to spend a lot of time on what witnesses said here before that

14 Prosecution map, 194. Witness Hadzic, who explains certain things,

15 Witness Eimers, I think W-40, 40 and 42, Witness Veljovic, Mohatarem who

16 spoke of a depth of 2 kilometres and who said that military targets were

17 in a 2-kilometre zone from the area -- from the demarcation line. And in

18 view of his great military experience he said that the Presidency building

19 could be a military target.

20 Then there's a Witness W-101 who said that brigade staffs were --

21 or brigade headquarters were in ordinary buildings, that's on page 1061.

22 Or Witness W-42 who said that residential buildings in the urban area

23 could equated with trenches, that's page 1862/12-18, 64/11. Or Witness

24 W-46 who spoke of the entrance to the tunnel from the Butmir side which

25 was in an ordinary house and at Dobrinja in the middle of residential

Page 9533

1 buildings.

2 Your Honours, that was the situation as it relates to the problem

3 of or the issue of what sort of area this was. And if it is not proven

4 beyond any doubt that it was a civilian area, then the Defence has nothing

5 further to tell you about any other alternatives, it is not up to us to

6 deal with that. I don't know how much you will deal with it if you

7 conclude that this was a civilian area, but in any case it is my deep

8 conviction based on irrefutable evidence it was not a civilian area. I

9 hope I will have more time to say more about it later.

10 Civilians, not only were not the sole target, they were not a

11 target at all. I will illustrate this by specific examples. What

12 happened was fighting and combat operations that went on throughout the

13 indictment period. If you remember, when I spoke about these matters

14 after the Prosecution case under Rule 98 bis, I mentioned this campaign,

15 using examples to illustrate, not really dealing with combat operations,

16 but just pointing to a minor problem that cannot be of decisive importance

17 in deciding on the mens rea of the accused. I said on that occasion that

18 there were certain periods which cannot be qualified as any sort of

19 campaign. I spoke about the period from August 1994 until April or May

20 1995. There were combat operations then, but certainly not risk a

21 campaign. Everything had gone downhill and everything would have ended

22 well if other people had not had other plans and if there had been no

23 offensive. I will have a couple of documents to show you on this issue as

24 well.

25 Because, Your Honours, some people may have had different plans at

Page 9534

1 the beginning of the war, there were all sorts of people there who had

2 different designs and objectives. I won't go into that because I'm not

3 that interested in that as Defence counsel. What matters to me are the

4 people in the trenches and what they did. You know very well and you have

5 heard a lot of evidence that with the start of the conflict 100.000-plus

6 people left, the greatest number of them Serbs, and all of them who had

7 apartments and houses there stayed in Sarajevo and went into the trenches

8 to fight. Those who originated from Sarajevo stayed in Sarajevo and spent

9 the whole war there. No one else was there, only the natives, including

10 General Dragomir Milosevic. In any case, all those people had been

11 decimated and were clutching at straws to remain there.

12 Now, about orders and who was able to issue them under those

13 circumstances, you can, for instance, look at the report of Mr. Harland or

14 his evidence here. It is typical. He said on page 385, lines 14 to 23,

15 he said that after the truce in February the Muslim side violated the

16 agreement on the cease-fire 318 times. He goes on to say on page 384,

17 lines 22, Serbs sincerely wanted the situation to stabilise in Sarajevo

18 and they stopped their operations, decreasing operations and combat on the

19 separation lines all the way until February 1994. Whatever plans existed

20 in some other time, whatever the reasons for maintaining what Ms. Edgerton

21 named the status quo situation, in the minds of one side this belief

22 really existed, not only because that territory was taken by occupiers and

23 cleansed from the Muslim population, Serbs were cleansed from Sarajevo.

24 Defence has documents showing what happened in the month of May

25 and how many people were killed in Pofalici when they tried to escape from

Page 9535

1 Sarajevo so that nothing really happened there except that by the same

2 token some Muslims had to leave neighbourhoods where they were in the

3 minority. That happened, although people had lived for years quite

4 peacefully side by side and nobody really needed any of this. It is

5 absolutely not true that those locals had any strategic plans, but even if

6 those plans existed at this moment, whatever the situation, they had no

7 longer any desire to continue with this. And negotiations were going on

8 that were supposed to lead to a final solution.

9 Some parties, however, found this inconvenient and the Defence

10 will show the real culprit for the failure of the agreement to be extended

11 in that month of April. We have VRS documents, including document 214, as

12 I said, document 214 and other documents. For instance, the document from

13 April 1995 which says that certain actions would be taken only if an

14 offensive is launched. Document 141 speaks volumes about this. It says:

15 "We have information that the enemy is preparing action against the corps

16 and in order to thwart these plans I hereby order."

17 Everything was in this same spirit such as we see from document

18 186 which mentions Bascarsija and Vrbanja neighbourhoods. It says that

19 action can be taken only on the orders of the commander of the SRK,

20 emphasising the assignments that have to be accomplished have to do with

21 neutralising fire points, machine-gun nests, and other fire points that

22 prevented people from movement in Grbavica, Kasindol, and other areas. I

23 can even mention a document authored by Mladic on the 31st of March, 1995,

24 that's a document of the Prosecution, P337, which also speaks about

25 defending the territory. It's only one aspect of this matter, the plans

Page 9536

1 of the Army of Republika Srpska to stabilise the situation, and an honest

2 desire to do so, quite unlike the opposing side.

3 As David Harland says on page 386, lines 1 to 12, not only were

4 there 300 and so violations, BH violations of the cease-fire agreement,

5 but in the following months up to June there were another 196 violations.

6 And then he says the Muslims did not want the situation to stabilise, and

7 that was frustrating to General Rose.

8 Just look at this amount of violations at the stage when it was

9 agreed for the cease-fire to continue. Look at document D3 of the 18th of

10 September when the first fierce combat occurred. Izetbegovic says,

11 according to Harland, that he wanted to provoke the Serbs into opening

12 fire on the city, which they reluctantly did. And that provided

13 Izetbegovic with a strong negotiating chip with the US about lifting the

14 embargo.

15 There is another document, P816, it's a conclusion. On the bright

16 side General Rose blamed the attack on Muslims depriving them of the

17 advantage on the international plane as far as positive reporting by the

18 media is concerned. "If they repeat such provocations, I believe that

19 they will at least be careful enough to camouflage them better."

20 JUDGE ROBINSON: Mr. Tapuskovic, you have just about exhausted two

21 hours. How much more time are you going to need? I'm not prepared to

22 give you more than the Prosecutor used, which was an additional 34

23 minutes.

24 Mr. Waespi, are you going to want another bite at the cherry?

25 MR. WAESPI: Yes, I do have just a few minor comments on what the

Page 9537

1 Defence has said so far, nothing major, but I would love to have some time

2 to respond, yes, if I'm allowed to do so.

3 JUDGE ROBINSON: I see it's provided for in the Rules. I don't

4 understand why, quite frankly.

5 MR. WAESPI: Well, you drafted the rules.

6 JUDGE ROBINSON: No, I didn't draft that, I can tell you, because

7 we don't have it in our system. You make your closing address and that's

8 it. How does it become appropriate to speak of a rebuttal? That's when

9 you're leading evidence, taking evidence. It's not relevant in closing

10 argument, but if you wish then I'll give you a very short time, seven

11 minutes.

12 MR. WAESPI: I'll think about it. Thanks, Mr. President.

13 [Trial Chamber confers]


15 MR. TAPUSKOVIC: [Interpretation] Your Honours, can I not reckon

16 with a small extension?

17 JUDGE ROBINSON: Yes, you can -- yes, I'm willing to give you

18 another 34 minutes, which is as much as the Prosecutor had.

19 MR. TAPUSKOVIC: [Interpretation] That is all?

20 JUDGE ROBINSON: Well, how much longer would you need? You would

21 then have had two hours and 34 minutes.

22 MR. TAPUSKOVIC: [Interpretation] Until 6.00. If I could get until

23 6.00.

24 JUDGE ROBINSON: Ten minutes to 6.00, Mr. Tapuskovic.

25 MR. TAPUSKOVIC: [Interpretation] Well, then, Your Honours, I would

Page 9538

1 have to try --

2 JUDGE ROBINSON: Until 6.00.

3 MR. TAPUSKOVIC: [Interpretation] Thank you.

4 I can hardly quote all these orders properly, but at least I will

5 try to point out let's say the 16th of November. The BH army fired four

6 mortar projectiles from the area encircled by Presidency buildings, the

7 residences of the Kosevo Hospital. The projectiles exploded in Rajlovac

8 area and Slatino Brdo. On the next day the transformer station was

9 targeted, nine projectiles hit a civilian area controlled by the VRS.

10 Those are the combat operations, the acts that the Prosecution qualifies

11 as civilian areas, areas from which the VRS should not have responded.

12 Take document 157 which says: "The BH army has grown into a

13 powerful military force."

14 It's dated 19th September, 1994, just as General Milosevic took

15 over his position. The document was signed by Rasim Delic. There are

16 many other documents of -- about this offensive action signed by

17 Rasim Delic. 158; 391, speaking about continuous offensives; document

18 378; document 303 which says, and that's 1st January 1995, it says that if

19 this agreement that had just started is observed, use the time to train

20 units and commands and transform the army to continue combat operations.

21 I can give you a lot more of similar examples: D416, 6th of

22 January, 1995, already then it says: "All commands will intensify

23 preparations for carrying out offensive combat and be at readiness to

24 commence with combat offensives."

25 Then D194: "In all defence areas of battalions, prepare positions

Page 9539

1 for firing from machine-guns and anti-aircraft guns." Over the heads of

2 their own population, that's from March 1995.

3 Thus we come to document D163 where Rasim Delic writes to Alija

4 Izetbegovic. I do have to stop and comment on this. It says: "Pursuant

5 to your request and in view of the Presidency session I propose to you the

6 following: The extension of the cease-fire and truce is not acceptable

7 for the following reasons," and then he states the reasons.

8 "Demilitarisation of Sarajevo is also out of the question." And then the

9 most typical thing, the matter that has been discussed at length here, he

10 says to Izetbegovic: "We have to continue saying that we will defend

11 ourselves and will refrain from attacking first (as we have always done)."

12 And document P19, that's Harland's report, says at one point when

13 the offensive had been stopped:

14 "Bosnian media that had already bragged about newly liberated

15 territories now report about the heroic defence of the city by the army."

16 These are the tactics that Izetbegovic talks about. Then you have

17 a series of documents about the offensive in June 1995, it's not even

18 necessary to enumerate them, 392, and so on and so forth.

19 It is noteworthy that in June, not even a month later in fact, on

20 the 8th of July, 1995, there is a new order to launch an offensive,

21 attacks don't stop, then document 151 says Clinton is going for new

22 elections and the US now want a truce. Delic, therefore, issues an order

23 to intensify and activate all combat operations in all theatres of war.

24 And at the end we have another order on the 5th of September when

25 NATO air-strikes had already begun, D424, signed by General Ajdadzic where

Page 9540

1 he says: "We are in constant contact with the UNPROFOR command Sector

2 Sarajevo in order to ensure that all prerequisites are mention for joint

3 action."

4 I can enumerate God knows how many more documents related to these

5 combat operations, because as you remember you allowed me to introduce

6 into evidence a number of documents about these operations. Witness Smith

7 confirmed that the offensive of the BH army that had been long in

8 preparation had started. When you asked, Judge Robinson, whether he

9 remembered if the BH army had opened fire to provoke response from the

10 Serbs, he said he remembered and he said: "We were in the middle of the

11 war."

12 Can we now say it was still a civilian area when all this was

13 going on? This witness also said that the offensive was ongoing on all

14 front lines and Witness Nicolai says the UNPROFOR assumed that fire was

15 intentionally opened in the vicinity of UN positions in the hope that

16 Serbs will respond. This was a regular occurrence, fire was regularly

17 opened from positions held by the BH army in the vicinity of UN positions.

18 Regarding the movements of mortars, he says that it was the objective that

19 CR 1047 -- but soldiers have the right to defend themselves. And whenever

20 they are shot at from certain positions. Proportionality exists if their

21 purpose is to neutralise the enemy's firing point, CR 1054, lines 4 to 7.

22 He says:

23 "In my opinion, the number of shells is not the proper criterion

24 for proportionality. The proper criterion is the accuracy of the target

25 as long as fire is directed at the enemy firing point the response is

Page 9541

1 adequate." Page 1057, lines 17 to 20.

2 He had by that time said a lot about mobile mortars. I have no

3 time to quote. Konings, Knustad, Mohatarem they all speak about these

4 combat operations, but I can mention D219, from which we see that there

5 existed a directive to conduct sabotage operations, the kind of guerilla

6 war that had been tried and tested in the Second World War in that region

7 on the principle destroy and return. There were many sabotage operations

8 of that kind and a lot of evidence about them, and there is a lot of

9 evidence about combat operations in that period when the offensive had

10 started, such as the 16th of June when thousands of shells were fired from

11 one side and a response was called for. Then we have document D118 which

12 says that from the 15th June until the 3rd of July, all weapons we have

13 available are used. And in the final sentence it says:

14 "We evaluated that the number of destroyed combat and non-combat

15 positions is even greater because we fired at them in the circumstances of

16 limited visibility by night when we did not have a proper possibility of

17 observation."

18 In relation to all this evidence I would like to make one point

19 and that's document 519. Why is that document important? P519.

20 [Trial Chamber confers]

21 JUDGE ROBINSON: Yes, go ahead, Mr. Tapuskovic.

22 MR. TAPUSKOVIC: [Interpretation] It's hard ...

23 [Trial Chamber confers]

24 MR. TAPUSKOVIC: [Interpretation] I still haven't come to the

25 murders yet -- the killings, but P519, that is a report where the

Page 9542

1 following is stated. Captain Hansen informed the liaison officers of the

2 Army of Bosnia-Herzegovina that synthetic and UNMO teams were sent to the

3 television buildings. He also asked the liaison officer of the Army of

4 Bosnia-Herzegovina to stop the fire from the Army of BH which was

5 constantly being opened from the PTT building and the surrounding area and

6 from the television building provoking return fire from the Army of

7 Bosnian Serbs in that area. This was requested for the security of the

8 medical team. This was not done, and in the document, as mentioned by

9 Witness Knowles, liaison officer who addressed representatives of the Army

10 of Bosnia-Herzegovina, asking them whether there could be a cease-fire for

11 an hour for the safety of the medical and investigation team, but the

12 liaison officer responded, What fire?

13 At that time over 50 heavy artillery shots were registered in

14 front of the PTT building. "Then I asked again whether it was possible

15 for the BH to stop the fire. We could both see the fire in front of the

16 PTT building. The answer again was: 'What fire'? I said this was fire

17 coming from weapons deployed around the PTT building. The BH liaison

18 officer then said probably the Bosnian Serbs would stop firing back if the

19 BH army announced a cease-fire of at least an hour."

20 Why am I reading all this? That was the artillery conflict that

21 went on on the 28th of June when the television building was hit. That

22 was the time when an officer was allegedly jogging in the vicinity while

23 the artillery fighting was going on and saw the air bomb, which two

24 officers who were directly threatened by it said came from the Bosnian

25 side. In this situation I have to say the following with reference to

Page 9543

1 hostages. Who was a hostage and who was whose hostage? Terror and

2 terrorism have been mentioned here. I presented document 415 here. One

3 of the Defence witnesses Sima Tusevljak confirmed here before you, and

4 most of this has already been delivered to The Hague Tribunal and then it

5 was sent back but some of it is still here before you, and that is that

6 during the war so far there is indisputable evidence to show that 2.200

7 people have been killed, not shot or killed by fire, but slaughtered. And

8 that is another reason why there had to be defence at a time when they

9 were inferior in weapons and manpower.

10 I will slow down now. It's document -- a document of the Republic

11 of Bosnia-Herzegovina, the security service, it's a confidential document.

12 Let me see. Where should I start? It refers to crimes against humanity

13 and international law perpetrated against civilians, killings in a

14 particularly cruel manner, torture, and the inflicting of enormous

15 suffering, and this even contained elements of genocide. This is their

16 own official report, their own commander is saying that before his eyes

17 they are killing people. These are things that were going on in Sarajevo

18 at the time of the indictment against Dragomir Milosevic, and this

19 completely annihilates this story about who was whose hostage. There were

20 thousands of Serbs there and it would not be easy for anyone to fire on

21 his own people while not responding to fire against them and all this

22 fighting that was going on, just let it go on and simply observe it while

23 people were being killed.

24 And now in order to make the most efficient use of the time, could

25 we have a look at those three clips, so I will show you what Markale was

Page 9544

1 used for and who did that and how it has been misused, how both the living

2 and the dead have been misused, unfortunately.

3 [Videotape played]

4 MR. TAPUSKOVIC: [Microphone not activated]

5 THE INTERPRETER: Microphone, please.

6 MR. TAPUSKOVIC: [Interpretation] It was never demonstrated whether

7 this hit anyone. All that could be seen was smoke. That was the system

8 on which the entire tactics of the Army of Bosnia-Herzegovina was based.

9 JUDGE HARHOFF: Mr. Tapuskovic, can I ask you, is there an audio

10 part of this also, because we can't hear anything?

11 MR. TAPUSKOVIC: [Interpretation] You can just hear a bang, but it

12 will take a lot of time. Just a bang and there's smoke. All you can see

13 is smoke. You can't see whether anything has been hit. We should have

14 been able to see the building, to see if anything had been hit there.

15 It's very easy to create a smoke-screen behind which you can see nothing

16 and then show this to the entire world and say that it was done by the

17 Army of Republika Srpska. And all this time the Presidency was a military

18 target. Akashi was in town and they needed a show that day and so the

19 show was put on.

20 Could we see Markale now, please.

21 [Videotape played]

22 MR. TAPUSKOVIC: [Interpretation] There was only smoke. Why was

23 there no picture after the smoke had settled? This was simply a show so

24 that Akashi could see what the Serb side was doing, how it was behaving.

25 It was unreasonable to fire on Sarajevo when everybody knew Akashi was

Page 9545

1 there. This was evidently done to show what the people in uniform were

2 like on the other side, in the Sarajevo-Romanija Corps. But, please, can

3 we see Markale now, and don't silence it. It's terrible to see, but that

4 is a truth one has to face. And then I'll try to finish if I can, but

5 it's difficult.

6 [Videotape played]

7 MR. TAPUSKOVIC: [Interpretation] Look at the film, it's 30 seconds

8 long. You saw only a box and now the terrible scenes you're going to see.

9 You can count as much as you like. I've studied it with experts. There

10 were not more than 25 or 30 people there who were injured or killed. Look

11 at this horror. And now the camera goes back. So all together it's about

12 30 seconds. Well, you see, that woman wasn't here a little while ago.

13 Now stop. This woman was not here a little while ago. You saw that box

14 there. Underneath this woman there's not a drop of blood. There was some

15 discussion about that. I don't want to waste time on this because the

16 Prosecution case is untenable.

17 Of course this happened, of course there was an explosion there,

18 but I think that in these proceedings we have demonstrated beyond any

19 reasonable doubt that this was a weapon activated under static conditions.

20 And I will try to show this briefly in the course of these 15 minutes or

21 so because this explains to what extent one side was prepared, not only to

22 prepare this but to do it at the expense of its own people and then to use

23 the victims, people who lost their lives, to prove what they wanted to

24 prove. And now I'm coming back to the issue of responsibility for

25 Markale. As Defence counsel with some minimum knowledge of physics and

Page 9546

1 what is possible, I have to say the following. Under no circumstances in

2 view of the trajectory of such a projectile could it have landed where it

3 allegedly landed, over these buildings, and exploded in that very spot. I

4 must slow down. The most important thing I want to say is this: I

5 wouldn't wish the Court when deciding on all this as Dragomir Milosevic

6 was not in Sarajevo at the time but was away for medical treatment, I

7 wouldn't wish him to be held responsible for this event. Therefore, I ask

8 that this --

9 JUDGE ROBINSON: -- the Prosecutor's position on that I believe is

10 that although he was absent he gave the orders.

11 MR. TAPUSKOVIC: [Interpretation] Yes, I was just coming to that,

12 Your Honour. That's just what I was going to say. He was the commander

13 of the Sarajevo-Romanija Corps. In this situation he was unable to carry

14 out his duty. What would have happened if he had not come back at all?

15 Would he have been held responsible for this then? It's a logical

16 question that arises and it's for Your Honours to decide. As he was

17 unable to carry out that duty de facto at the time, he cannot be held

18 responsible and he especially cannot be held responsible for not

19 conducting an investigation later on. General Mladic asked for an

20 investigation by an impartial commission, and this was not approved, so

21 how could it have been approved if the general accused before you had

22 asked for it?

23 But there is no way he can be held responsible for this. I

24 wouldn't wish this event to be eliminated in the same way as Racak, which

25 has not been adjudicated at all but which was used for purposes of

Page 9547

1 manipulation I'm sure. I'm a witness to those proceedings. I saw what

2 happened and I can assert that with full responsibility. I cannot

3 understand that Racak has suddenly disappeared from the Kosovo indictment.

4 I wouldn't want this to be dealt with in the same way, without being

5 adjudicated. That's why I will not dwell on the documents I have here

6 which speak to this because they speak for themselves. Document D10 which

7 says - I'm looking at the clock - an investigation is under way to

8 establish the distance of the firing point of the mortar shell. It's very

9 difficult to establish the position from which it was fired because it's

10 impossible to determine what the charge was. That's what General Janvier

11 says and he sends this to Kofi Annan on the 28th.

12 On that same day, the Konings report, the azimuth combined with

13 the angle of descent is not sufficient because the charges are known. The

14 investigating team, he's referring to the police or the army, or rather,

15 of Bosnia-Herzegovina invested a great deal of effort to prove that the

16 attack came from the Serbian side but there's no firm evidence to support

17 this. That's on the 28th. On the 29th they repeat this and even add -

18 and this is most important - that shells were not registered by the sound

19 instruments, or radars, and they don't change their report at all, that's

20 the 29th. On the 29th, thanks to our witness, we have obtained a document

21 showing that on that day there was already an order that in the course of

22 the following night NATO air-strikes should begin. The decision was

23 reached the very moment this happened which is exactly why it had to

24 happen.

25 Document D356, document - I'll skip over all of these - well, here

Page 9548

1 on the 30th, P86, mark this, the 30th, that's an UNPROFOR report, it says

2 from all the analyses available the source of fire cannot be established

3 because it is not known what charge was used. The UNMO comment is, I'm

4 not able to confirm who fired, and this was during the NATO air-strikes.

5 We can add many other documents to these, but let's see what eye-witnesses

6 said, for example, Rupert Smith. Even he -- he says there was

7 disagreement about the direction from which the projectile had arrived,

8 that there were various opinions about this, that the projectiles were not

9 registered by radars or the official system, but that he concluded that

10 the projectiles were fired from outside and immediately issued the order

11 for air-strikes.

12 He also said, I won't quote everything because there's not enough

13 time, theoretically it's possible that it was an action by Bosniaks

14 against Bosniaks. Hendrik Nicolai, for example, stated that it was very

15 important to establish the source of fire because no possibility could be

16 excluded, even the possibility that the Muslims had shelled their own

17 people, and he added the following. At the time of the event on the 28th

18 there was a precise British and Dutch radar system registering shells

19 fired at the town, the radar system did not register a single shell fired

20 at the town and the sound of the shells was not registered when they were

21 flying in. And he concluded his remarks by saying that all this in his

22 view was still a mystery. To this very day Nicolai has been repeating

23 this and he says that even his colleague Van Baal, his predecessor, based

24 on an investigation he carried out, believed that it had been done by the

25 Muslims against themselves.

Page 9549

1 And Harland said some other things here. As for Konings, I don't

2 have to repeat what he said but the witness did confirm that there were

3 rumours in Sarajevo itself that the bodies had been transported to the

4 scene and that even UNPROFOR warned him of this possibility. There's no

5 end to what I could quote here of what people who were there at the time

6 stated. Witness W-14 says the -- he wanted to confirm that the scene was

7 modified, but he didn't get confirmation from the investigating judge.

8 Your Honours, can I please get another 15 minutes? I cannot deal

9 with such important evidence with such a deadline.

10 JUDGE ROBINSON: Yes, I did say 6.00.

11 [Trial Chamber confers]

12 JUDGE ROBINSON: Yes, we can continue, Mr. Tapuskovic.

13 I have given you the time that you sought, which is until 6.00.

14 Am I misunderstanding something? Were you seeking another 15 minutes

15 beyond 6.00?

16 MR. TAPUSKOVIC: [Interpretation] Yes, yes.

17 JUDGE ROBINSON: [Previous translation continues] ... we'll be here

18 until the crack of down.

19 MR. TAPUSKOVIC: [Interpretation] Well, Your Honours, I don't know,

20 I could --

21 JUDGE ROBINSON: Just go on and let us see how we get on.

22 MR. TAPUSKOVIC: [Interpretation] I can cover just another few

23 points. I have just come to Witness Demurenko. Now we already know that

24 there had been acts of terrorism, we have a document testifying to that,

25 terrorism in the sense of perpetrating terrorist actions inside Sarajevo

Page 9550

1 and Demurenko says he's not a specialist in terrorist activities but he's

2 convinced that it was a terrorist attack and that it had been perpetrated

3 by planting a terrorist device on the spot, a static device, and the first

4 indicator is that one shell had killed 120 people, he probably meant the

5 injured and the killed, while the remaining four did not have any outcome.

6 He also says that twice in two years, in 1994, in 1995 in the same

7 spot which is so well frequented, where there is a market called Markale,

8 there were two explosions killing a lot of people. Another witness says

9 that he had found a crater and it is made of steel and on the basis of the

10 tailfin it was simply impossible to say -- there were no small fragments

11 and simply it is unbelievable that a shell with its fragments kills over

12 100 people. There was no clear trace. It had not been recorded by any

13 radar device and that led to the conclusion that it was instead a planned

14 operation, a provocation act that would provide somebody with a basis for

15 certain action.

16 At any rate, he not only said that, he was the only man who

17 actually went to the scene, who made photographs on each of the positions

18 of -- from which the shell could have been fired. And he came to certain

19 conclusions. He said all that, and that was followed by death threats

20 against him, as death threats had similarly been addressed to Hansen

21 because of what he said had happened in the television building. It is

22 difficult now to analyse the Higgs reports which says about targets being

23 uploaded in advance which is total nonsense because we're not talking

24 about a guided Tomahawk and it can be guided to a specific target, even

25 Tomahawks are not free of errors. We have even mathematic analysis

Page 9551

1 indicating that it was not possible to be anything other than a planted

2 explosive. We had Witness Vukasinovic, who presented this evidence on the

3 basis of mathematical formula. Nobody disputed, nobody refuted that

4 evidence, not even Witness Zecevic. That is also the conclusion of

5 Defence expert Garovic.

6 Can I remind you of those three drawings - just to remind you,

7 because I have no time to waste, those three drawings -- in fact, two

8 drawings and one photograph which confused Demurenko more than anything.

9 You remember on this drawing the shell comes from the right, that's the

10 way it's drawn, it's document 254, it need not be shown. I just want to

11 remind the Bench, the Chamber, about this. The second drawing shows the

12 shell coming from completely the opposite side, from the left. And there

13 was this claim that the shell came from a direction that requires an

14 azimuth of 220 and if that had happened as Garovic had shown, you would

15 have been shown a photograph on which from the shell could have been come

16 from the north, the south, the west, and the east, that's how it was

17 shown.

18 And on the basis of exact science this claim was shown to be

19 untenable, this claim by the Prosecution. It couldn't developed that way.

20 You also have an analysis made by Witness Garovic - I'm speaking very

21 fast, I don't know how much is getting through to you - he said that 120,

22 130 pieces of shrapnel could have endangered some, but in a certain

23 perimeter. But already in the next perimeter it could not have been so

24 fatal for such a number of people. Then we have the photograph of the

25 number of bodies, if we can show that, although I don't think even that is

Page 9552

1 necessary. Those are two photographs that were analysed by expert

2 Milosavljevic, who showed clearly -- first of all, what we saw on this

3 television still where we see a body there that had not been there a

4 moment earlier. Who needed this sort of thing? It is inexcusable that

5 the explosion happened, it happened. It not only happened, but human

6 lives and human bodies already dead were abused in order to create a

7 certain effect in international public opinion. The whole world saw these

8 pictures, and at the time when I saw them myself I was appalled. That is

9 one objective that had indisputably been achieved.

10 There was not a single man on the planet who would not have been

11 up in arms against this. But who did this? That person should be held

12 responsible, not Dragomir Milosevic. I assert to you with full

13 responsibility that neither this event nor the attack on the television

14 building could have been perpetrated by the Sarajevo-Romanija Corps, not

15 only that, there is a great degree of certainty that they were both

16 perpetrated by the BH army, that it was a method in current use, as we

17 have shown from the documents, that testify to sniping on their own people

18 by them. And similarly, these two incidents were used in the way they

19 were used.

20 I have no time to tell you more about another event that was used

21 for an international uproar, the suffering of the boy, Nermin. There is

22 evidence that the bullet came from the other side, not from the side the

23 indictment says it came from. And that can also be proven in terms of

24 exact science. And the same is true of other incidents of sniping. I

25 cannot omit to tell you this in the remaining few minutes or whatever you

Page 9553

1 allow me, that is what I had prepared to say about policemen and their

2 work. I don't have time to elaborate it in the way in which I have

3 prepared to do so. But I used to work in that country for 40 years as a

4 lawyer and I know how the police services, when they want to arrange

5 something, can succeed in doing so and it takes you a decade to refute

6 that.

7 This group of poorly trained people was doing the work, those who

8 led them were sitting somewhere else in offices. Those who actually came

9 at the scene were inexperienced young men who had no clue about on-site

10 investigations, let alone investigations that required such skill and

11 expertise. All evidence was removed. Not a single photograph on the

12 scene was made. No human material was collected on the basis of which to

13 establish at least whether the person really died in that spot. It was

14 impossible even to establish because bodies would be removed immediately,

15 everything would be cleaned on the spot, on the scene of the crime. You

16 couldn't even establish whether the person was a civilian or a soldier.

17 There is not a single report that is valid on the basis of which an expert

18 could really work. And now on the basis of such reports, you are required

19 to make a decision. Before a serious court, and I believe this to be a

20 serious court, not a single one of these investigations would go any

21 further than preliminary proceedings. It would never reach court on the

22 basis of such evidence. Not a single of those incidents would even come

23 to court and you are now in a position where you have to decide on the

24 basis of such evidence, whether it was murder or not. We are dealing with

25 dozens of murders in this situation where nothing can really be

Page 9554

1 established.

2 I wish I had time to give it more analysis but perhaps it is not

3 even necessary. If I had time I could show you with perfect accuracy that

4 not a single one of these incidents is proven. All the time I was hearing

5 objections why I was not leading evidence regarding incidents. What kind

6 of evidence could I lead if we were dealing with that kind of experts? I

7 know their methods very well. I felt it on my own skin so many times, and

8 that's the same method that had been used for many decades and continued

9 at the time of the conflict. I told you what I think about the victims of

10 that senseless war that took place everywhere, including this area which

11 was never a civilian area. When you establish, Your Honours, that it was

12 a civilian area then you may convict this man. But without establishing

13 with absolute certainty that it was a civilian area, I as Defence counsel

14 am not required to speak of any alternatives.

15 About air bombs, I never even managed to say what kind of bombs

16 are there that killed people 150 metres away from the blast point without

17 a single human casualty? You can remember perhaps that girl and that

18 protected witness who claimed that the child was killed through the wall

19 of a building. And when we faced him with that photograph here in front

20 of you, he had to admit, I believe it was at the intervention of

21 Judge Harhoff, that the wall was not even penetrated. Instead of filming

22 from the inside to see whether there was any blood and whether the wall

23 had been penetrated, the policemen just concluded that the child was

24 killed in that way. That kind of manipulation with human lives, this game

25 played with the body of a dead child just to show this horror to the

Page 9555

1 entire world, Mr. Mohatarem put it very well. It was a TV war that was

2 won on TV. And I am just begging because it is very hard to concentrate

3 on some other issues such as air bombs and the claim that they were so

4 many of them. I believe if that were true, Sarajevo would have been razed

5 to the ground; instead, you have some kind of explosions.

6 Let us speak about this. There was one bomb that fell into a

7 war-affected area. Hrasnica was indisputably a combat area. It was

8 involved in all the operations of the BH Army in the broad area, far

9 beyond the boundaries of the Serb-controlled zone and far beyond the

10 boundaries of the BH-held zone. That zone had by that time expanded a

11 great deal as Karavelic put it. They had encircled the Serb forces in a

12 second circle. That there were no air bombs, we can best see from that

13 incident when the TV building was hit.

14 I'm sorry, I have no time to show you, to demonstrate to you

15 irrefutably that it was done by the BH Army. There was that policeman who

16 planted the body of the child in that place, and I believe that the

17 Trial Chamber will not disregard the evidence given by three honourable

18 UNPROFOR members. I'm sorry I cannot mention the Hogan [phoen] letter

19 with the suggestion that they should change their report. Can you see if

20 you can modify this a bit? I am facing great problems. It is very

21 difficult to cover this in a closing argument when I have to watch the

22 clock all the time and count seconds, but I have to respect your decision.

23 I cannot discuss any responsibility of the accused, however hard

24 that may be in view of the decision against his predecessor, but the

25 Defence is absolutely not ready to bow before such conclusions because the

Page 9556

1 facts are quite different than presented by the Prosecution. It is at

2 least my right to think the way I think, the way a Judge in that other

3 Chamber thought, although he didn't even have all the evidence that we

4 have. If I could have counted all the shells counted in the indictment

5 period by the BH Army, I could have. I've done that only for a couple of

6 days for the entire period, but I could have shown it for every single

7 day. With such combat operations, how can it be called a civilian area?

8 If you decide that it was a civilian area, then only can the

9 responsibility of Dragomir Milosevic be reviewed and decided.

10 I am sorry I could not have been more precise about Markale and

11 the television building attack, but I wanted to show you evidence of how

12 the Army of Bosnia-Herzegovina abused their own people and that was

13 witnessed by the people who were there in Sarajevo at the time and who had

14 their own doubts about it even then. We have matters to deal with in the

15 following months even, but I stand behind every word I uttered here. The

16 time in which the events charged against Dragomir Milosevic happened, it

17 was a zone of fierce combat operations and everything had to be done to

18 save one's bare life, however surprising that may be to some people, I am

19 convinced in it with every fibre of my soul.

20 I have no further remarks to make.

21 JUDGE ROBINSON: Thank you very much, Mr. Tapuskovic.

22 Mr. Waespi, for your very small bite.

23 MR. WAESPI: Thank you, Mr. President. The first point,

24 withdrawal of heavy weaponry, TEZ. The Defence said that

25 Dragomir Milosevic always complied and that he only issued that order

Page 9557

1 around February 1994 as a deputy commander, but we do have, Mr. President,

2 P667 issued the 21st of August, 1995 -- 1994, shortly after the accused

3 took command ordering to camouflage heavy weaponry within the total

4 exclusion zone.

5 The second point, every policeman was a member of the ABH army and

6 there is a reference to W-140 at 2.118. This policeman said he himself

7 was never involved in combat; number two, that this was something they had

8 to do in the beginning of the war when there was no armed force on the

9 ABiH. There was some evidence saying that MUP -- some special MUP units

10 were used, for instance, in Dobrinja, I think Ismet Hadzic testified to

11 that, these people on those front lines would be legitimate military

12 targets, but certainly not normal policemen, traffic policemen inside the

13 city.

14 Provocations by the ABiH, look at P17, a letter introduced by

15 David Harland talking about the PTT building where it says it wasn't true

16 that the ABiH have put weapons near the PTT building.

17 Then these allegations about the Bosnians sniping at their own

18 people, the reference to David Harland, that's on page 397, that relates

19 to an incident on 3rd of November, 1993, before the period of the accused.

20 D67 also used as an example, it's a 44-page document. "The only source of

21 sniping fire is from aggressor's position in the temporarily occupied

22 territory of Grbavica." And that's the SRK. The second document alluded

23 to is D48, that's still a photo of Grbavica. And the third document,

24 D216, the third incident where the Defence claims that the Bosnians shot

25 at their own people, that's when the ABiH opened fire on a fugitive caught

Page 9558

1 in an attempt to escape to the other side at the front lines. These are

2 the three examples the Defence claims that proves that the ABiH were

3 shooting at their own people.

4 The next point I would like to raise is the -- that the ABiH had

5 equal capabilities as the Bosnian Serbs and General Smith is quoted. I

6 would like to refer you to General Smith's testimony at 3.359 where he

7 says: "The Bosnian Serbs were largely equipped with the weapons from the

8 former army and were able to draw to an extent at least I could never work

9 out precisely on the army in Serbia for assistance, particularly in terms

10 of logistics supply and materiel support. The Bosnian Serb army was

11 better organized and had a more professional corps of officers."

12 I also draw your attention to P817, talking about support from the

13 Yugoslav Army to the Bosnian Serbs. There is uncontradictory evidence

14 from many other witnesses who talk about the superior force the Bosnian

15 Serbs had. Look at map P788, it shows Sarajevo in the middle of a circle

16 and all cannons, howitzers, the corps artillery groups, the brigade groups

17 with cannons pointed towards the city, that's a reality, P7 -- 880, also

18 similar P507.

19 P392 talks about 460 pieces of artillery the Serbs had in 1995.

20 The Defence talked about these aeroplanes coming in, mentioning D305. If

21 you look at the bottom of that page it said, quoted President: "This has

22 not arrived yet, we are waiting." And we don't know, is it Sarajevo, are

23 these weapons to be delivered to Sarajevo or used elsewhere in Bosnia.

24 This is certainly nothing conclusive.

25 Then an observation on P492 when Karavelic apparently said that he

Page 9559

1 would take large parts of his forces outside the city. If that's true, I

2 don't doubt it, that would reduce the number of legitimate military

3 targets inside the city.

4 The next point relates to the victim of sniping incident number

5 10, Dervisa Selmanovic she was a 49-year-old woman, she was a cook in a

6 military kitchen, and she was certainly no legitimate target, and

7 certainly not when she was hit at home by a sniper attending at home to

8 gardening in her garden. I refer you to Additional Protocol II, Article

9 13, civilians enjoy protection unless they take direct part in

10 hostilities. And we have quoted other cites, ICRC commentary on

11 Additional Protocol, paragraphs 4788 to 4789.

12 Then the so-called alibi. Your Honours, this is as we call the A

13 7(1). The Markale II incident massacre happened one year after the

14 accused took control, command and control of the ABiH. Markale II is

15 almost a logical conclusion of the campaign of terror that the accused

16 inherited from General Galic. It's larger in its size than all the other

17 numerous incidents that occurred during his tenure as a commander. Even

18 when he was away in his spirit his subordinates committed Markale II.

19 That General Smith said there was no need in answering to General Mladic's

20 call to have a Joint Commission is perfectly understandable.

21 JUDGE ROBINSON: When you say that although absent he's

22 responsible because he had given the order before, are you referring to

23 any specific order or are you speaking generally? That was Mr. Docherty.

24 MR. WAESPI: Yes, my colleague talked about the machinery that has

25 been in place since the beginning. We don't have evidence of a specific

Page 9560

1 order of General Milosevic, but certainly this was done by subordinates

2 according to all we know a concentrated, concerted, coordinated campaign

3 against the civilians in Sarajevo.

4 Second-to-last point, D219, that ABiH was, talking about sabotage,

5 yes, sabotage against military targets. That document was heavily

6 discussed in cross-examination with that witness and the only targets

7 identified by General Delic were military targets.

8 And the last point, Mr. President, Your Honours, the peaceful

9 Serbs, Serbian military forces, who were perfectly happy with what they

10 acquired in -- during the ethnic cleansing campaign in 1992. Of course

11 they wanted to consolidate what they had over time. Now, the Defence uses

12 Prosecution Exhibit 336, this is the famous directive number 7 by Karadzic

13 to state that what the Sarajevo-Romanija Corps was doing was peaceful.

14 Now, there is a reference on page 11 of that directive, that's the order

15 that went to the Sarajevo-Romanija Corps and it says: "By force of

16 arms" --

17 JUDGE ROBINSON: Five minute left on the tape and then I'll have

18 to follow the Rules and ask whether Mr. Tapuskovic has anything by

19 rejoinder.

20 MR. WAESPI: I have 30 seconds.

21 JUDGE ROBINSON: 30 seconds, okay.

22 MR. WAESPI: "By force of arms impose the final solution on the

23 enemy." That's page 11. And a few pages, one page later, and that's the

24 spirit of this directive, is the order to the Drina Corps to strangle the

25 enclaves of Zepa and Srebrenica with no hope of further survival of

Page 9561

1 inhabitants of those two enclaves. That's the spirit this directive

2 number 7 was written by President Karadzic. Thank you, Mr. President.

3 JUDGE ROBINSON: Anything by way of rejoinder, Mr. Tapuskovic?

4 MR. TAPUSKOVIC: [Interpretation] Very briefly.

5 JUDGE ROBINSON: Rejoinder, it's rejoinder, I'm just reminding

6 you. We'll take a break now. How long is it -- how long a time is needed

7 for the --

8 MR. TAPUSKOVIC: [Interpretation] I'll be very brief.

9 JUDGE ROBINSON: We'll take a break of seven minutes.

10 [Trial Chamber confers]

11 JUDGE ROBINSON: We only need a minute, so seven minutes is fine.

12 --- Recess taken at 6.18 p.m.

13 --- On resuming at 6.26 p.m.

14 JUDGE ROBINSON: Yes, Mr. Tapuskovic, seven minutes.

15 MR. TAPUSKOVIC: [Interpretation] Your Honours, let me make use of

16 a word used by my learned friend, Mr. Waespi, who said that what

17 Dragomir Milosevic did was only a logical continuation of what Galic had

18 been doing and that he completed this phase of command with an even more

19 terrible thing than the one that had happened at Markale a year

20 previously. The event at Markale which had taken place a year before was

21 included in a final judgement, so I don't want to go into it, but I do

22 have the right based on the evidence I have to challenge in every respect

23 the existence of Markale II, and I do so by asserting that it's been

24 established beyond any reasonable doubt that it was done by the Army of

25 Bosnia-Herzegovina.

Page 9562

1 Firstly, and in view of what my colleague, my learned friend

2 Mr. Waespi, said, it was an incident worse than any other and it cannot be

3 compared to the others. Markale II took place precisely so that the

4 service would be punished on the same day regardless of the truth which

5 could not be established at that point in time, the truth which is evident

6 from the evidence that exists. It gained in significance precisely

7 because people who had not been there were used to increase the tragedy so

8 that instead of the number that were actually killed there by an explosive

9 device that could not have killed more people than the numbers seen in

10 those pictures, not more than 10 or 20, not in a single shot can you see

11 human body parts, feet and other human body parts appeared only

12 afterwards. If something had to be removed from the scene to avoid

13 hurting basic human feelings, then it would have been body parts but it

14 was they that were left there to achieve an effect and those two bodies

15 who were killed God knows where, one from a piece of shrapnel, one from a

16 bullet, and one from a hunting rifle, this was already represented in a

17 newspaper as the hunting story of counsel Tapuskovic.

18 I never said that those bodies had been hit on that spot. Expert

19 Milosavljevic said that, but those two bodies were found among those

20 accidentally and this shot was taken accidentally and it revealed what was

21 actually happened. The tragedy which really occurred because some

22 innocent people were killed by an explosive in a terrorist action, but

23 this was magnified so that over 120 people who were either killed or lost

24 their lives were said to have been casualties in that place. I have a

25 clear conscience which I will always keep and people were killed on both

Page 9563

1 sides. Defence witnesses spoke about numbers of people who lost their

2 lives on both sides, and it's for Your Honours to judge. Thank you for

3 allowing me this rejoinder. Thank you.

4 JUDGE ROBINSON: Well, there being no re-rejoinder, Judge Harhoff.

5 JUDGE HARHOFF: Thank you very much.

6 And thank you for your closing arguments, Mr. Tapuskovic. I have

7 a few questions to you because I think that there are a couple of issues

8 that have been left slightly open in your closing brief and in your

9 closing arguments, three issues. The first relates to the modified air

10 bombs, because I do not recall from the evidence that we have heard during

11 trial, but I need to go back and review all the evidence that we did

12 receive, but I do not recall having received evidence that modified air

13 bombs and launchers were available to the ABiH inside Sarajevo. So

14 therefore, my question to you, and I will phrase my question to you so as

15 to enable you to answer yes or no or either one or the other, my question

16 to you is then: Is it your position that either these modified air bombs

17 were launched from outside the front lines around Sarajevo by terrorists

18 or, that's the only other option I can see, that your position is that the

19 ABiH did, in fact, have modified air bombs and launchers inside Sarajevo.

20 That's my first question. Do you wish to answer this question now or do

21 you want to hear the two other questions?

22 MR. TAPUSKOVIC: [Interpretation] Your Honour, I will answer right

23 away. I refer to our paragraph 65. I do not have time to elaborate on

24 it. Paragraph 65 with footnotes deals with that issue. What I can say in

25 response now with certainty is that the issue of how something be done is

Page 9564

1 not linked only to launchers. Everything could be concealed or masked.

2 What is essential, the essential point, is whatever was used to fire that

3 bomb or launch it, whether it was a launcher or an improvised device --

4 JUDGE HARHOFF: Mr. Tapuskovic, I understand your question to be

5 as -- based on paragraph 65 of your closing brief that the ABiH did

6 dispose over modified air bombs and launchers inside Sarajevo. Let me

7 move on to my second question. The question relates to the issue of

8 General Milosevic being absent from the Sarajevo theatre during his

9 medical treatment in Belgrade. My understanding is that we simply are

10 dealing with very normal, legal concept here, namely, the concept of

11 delegation of power. If for any reason the supreme commander is unable to

12 perform his duties, then it follows from normal legal concepts that the

13 power that he holds are delegated to either the next in command or to

14 whoever the supreme commander decides to delegate his powers to. And it

15 also follows from normal legal theory that when powers are delegated to a

16 subordinate, then the person who delegates the authority remains

17 responsible even for the acts and omissions committed by the subordinate

18 during the time of the delegation.

19 So my issue is or my question to you is: Is your position that

20 there never was delegation of powers during General Milosevic's absence?

21 Or is your issue -- is your position that no crimes were committed during

22 that period so there's nothing to answer? Which of the two is your

23 position?

24 MR. TAPUSKOVIC: [Interpretation] The first and fundamental point

25 made in our brief is that de facto there was nothing he could do at the

Page 9565

1 time and at the time nobody knew whether he would be coming back to the

2 front or not. And secondly, I did not have time to deal with the issue of

3 orders. Of course mens rea can also include orders or a person's

4 responsibility can be based on circumstances. He never issued an order

5 that could be delegated to someone else --

6 JUDGE HARHOFF: Mr. Milosevic -- sorry, Mr. Tapuskovic, I don't

7 think you understood my question. I deliberately put my question so as to

8 avoid any doubt about whether or not the general passed on an order to his

9 Chief of Staff, I understand that was Colonel Sladoje. My point is that

10 as soon as General Milosevic was out of the picture Colonel Sladoje was in

11 power. And whatever he might have done or might not have done would

12 eventually be carried by General Milosevic, at least upon his return. So

13 when he returned medio September 1995, he would be accountable for the

14 actions or omissions that Colonel Sladoje had made during Milosevic's

15 absence. That's my point. So you don't have to discuss whether or not he

16 gave an order before he left.

17 MR. TAPUSKOVIC: [Interpretation] Your Honours, I have already

18 explained this. I can repeat and I am glad you've asked me that again.

19 What is quite certain is first of all I maintain that this event was not a

20 product of the actions of the Army of Republika Srpska. How can he

21 investigate something that from the very beginning they were convinced was

22 the result of manipulation? General Mladic asked that this be

23 investigated, but this was not approved --

24 JUDGE HARHOFF: I understand your position to be that no crime was

25 committed so there's no case to answer.

Page 9566

1 Let me then move on to my third and last question, that relates to

2 the issue of sniping of civilian targets. The Defence case has all along

3 been that there was an armed conflict, if I understand correctly, and that

4 this armed conflict by it's very nature created the terror and the fear

5 that was felt by everyone on both sides of the front line. But my

6 question to you is: How do you then explain that civilian targets

7 apparently were hit? Even if the shelling and the sniping from the SRK

8 was launched or made in response to fire from the ABiH, even if this is

9 correct and I'm sure it was in many cases correct, but even so, then this

10 still would not allow the SRK or whoever did it to fire back on civilian

11 targets.

12 Now, my question is therefore: How do you explain the incidents

13 that seem to be incidents where civilian targets have been hit, such as

14 the tram incidents? I'm sure you would agree that a tram under no

15 circumstances would be accepted as a military target. You can say that,

16 well, it was moving through an area where there was exchange of fire and

17 so it was just collateral damage, that's one position. Or you could say

18 that it was a stray bullet, that's another answer. Or you can say that it

19 was a ricochetted bullet that happened to hit. Or you can say it was the

20 ABiH who sniped against themselves, but I'm not sure and I can't see

21 clearly in your closing brief which of the positions that you take on this

22 issue. Can you clarify.

23 MR. TAPUSKOVIC: [Interpretation] Certainly, Your Honour. It's all

24 in our closing brief. You'll find it easily --

25 JUDGE HARHOFF: I'm sorry, I have looked and I was unable to find

Page 9567

1 where I see, this is why I was asking.

2 MR. TAPUSKOVIC: [Interpretation] Let me repeat, Your Honours.

3 Firstly, at such demarcation lines, where the demarcation lines

4 practically ran through houses, Prosecution witness Hadzic explained this

5 sufficiently and he explained how in such circumstances civilians can

6 become casualties. I've explained that civilians were mixed up with

7 soldiers, we discussed ricochetting. I also showed you a document from

8 which it can be seen that fighters of the Army of Bosnia-Herzegovina fired

9 on themselves in certain -- on certain occasions. Harland explained,

10 there's that example, where French soldiers established that fire was

11 opened from positions where they could identify the window where the

12 snipers were or the people who fired the shots.

13 And in such circumstances you cannot establish beyond any

14 reasonable doubt in any of the cases that the shots were fired by the Army

15 of Republika Srpska. Had I had time, but that will be in our submissions,

16 our written submissions, we can establish how it happened. There is no

17 justification in any circumstances for shots to be fired on civilians, but

18 the Army of Bosnia-Herzegovina certainly did do so and we have proved it.

19 As for the other cases, we will be able to do this in detail case by case

20 after Your Honours issue your decision. But if everything I have stated

21 was established on the basis of indisputable documents, it's up to

22 Your Honours to evaluate each particular case. I didn't mention the

23 boy --

24 JUDGE HARHOFF: I've understood your response. Thank you very

25 much.

Page 9568

1 JUDGE ROBINSON: Well, we have come to the end of the closing

2 arguments. I thank you all for the submissions that you have made. The

3 Chamber will take time to deliberate and give its judgement as soon as

4 possible. We are adjourned.

5 --- Whereupon the hearing adjourned at 6.46 p.m.