1 Tuesday, 30 September 2014
2 [Prosecution Closing statement]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.01 a.m.
6 JUDGE KWON: Good morning, everyone.
7 Yes, Mr. Tieger, you have a new member as compared to the
8 composition of yesterday. Why don't you introduce her for the record.
9 MR. TIEGER: Yes, Mr. President. As foreshadowed yesterday, we
10 are joined by Katrina Gustafson.
11 JUDGE KWON: Thank you.
12 Please continue.
13 MR. TIEGER: Thank you, Mr. President. I indicated yesterday I
14 would be providing cites in closed session. Those have already been
15 provided to the Defence, but if we could move into private session I will
16 provide them to the Court at this moment.
17 JUDGE KWON: Yes, could we move to private session.
18 [Private session]
10 [Open session]
11 JUDGE KWON: Yes, Mr. Tieger, we are now in open session.
12 MR. TIEGER: Thank you, Mr. President. I believe I also
13 indicated that I would be addressing a number of the questions posed by
14 the Court in its communication on Friday. I'd like to do that now very
15 quickly, if I may. With respect to question 5, that is, whether there
16 was a reason why appropriation is not listed in footnote 8 of
17 paragraph 60(I), the answer is no and we clarify that we do not allege
18 criminal responsibility for appropriation or plunder in the
19 municipalities specified in that footnote.
20 JUDGE KWON: Thank you.
21 MR. TIEGER: With respect to question 6, the Trial Chamber asked
22 how the Prosecution reconciles the conflicting adjudicated facts and
23 witness evidence in respect of the Mlakve football stadium in
24 Bosanski Novi. It is our position, Mr. President, that indeed there is
25 no conflict. Over 700 people were detained in the confines of the
1 football stadium, on the football-pitch, and its surrounds. So we have
2 one Prosecution witness who gave evidence that:
3 "We were not physically mistreated or beaten."
4 That was referred to by the Court, P687, page 24, while another
5 testified that he witnessed one beating, P8300, P61.
6 Your Honours, in circumstances where hundreds and hundreds of
7 detainees are held in a fairly large location in a variety of areas
8 within that location, including some on the pitch, some under the
9 grand-stand, some in the locker rooms, for a month and a half these two
10 witnesses' personal experiences cannot possibly speak to the experiences
11 of all the detainees in the stadium and therefore does not rebut the
12 presumption of truth of the adjudicated fact stating that there were
13 beatings at the stadium. And that's particularly the case when one of
14 the witnesses himself gave evidence of a beating.
15 JUDGE KWON: Thank you.
16 While we are on that issue, could you expand a bit further.
17 Let's suppose the evidence in our case is the very evidence that the
18 previous Chamber relied on in reaching that adjudicated -- establishing
19 that adjudicated fact and suppose they are not consistent or conflicting
20 each other. What would you say in that case?
21 MR. TIEGER: Well, first of all, I'm -- I have to -- I haven't
22 considered the prospect of the Trial Chamber's looking underneath the
23 adjudicated facts for the strength of those facts because we would be
24 arguing those in various ways if that was the case.
25 JUDGE KWON: That's a separate matter.
1 MR. TIEGER: Yeah. But it's a -- I'd have to see it in context,
2 I must say, Mr. President, not presented by this circumstance nor do I
3 believe -- I'm not aware of any circumstance in our case that -- in which
4 that precise scenario arises. You've identified, for example, another
5 incident that is posed by question 8 in Sokolac, where you raise -- raise
6 that fact scenario in the context of a legal question. And I was going
7 to get to that, but I can get to that now because I am focusing on the
8 specific issues related to adjudicated facts the Trial Chamber has
9 identified by way of noting that the hypothetical -- what I think is a
10 hypothetical the Court posed is not presented here. In Sokolac, for
11 example --
12 JUDGE KWON: Before going there.
13 So the Prosecution is against the idea of Chamber going into the
14 sources of the previous Chamber's conclusion as far as the adjudicated
15 fact or effect of it is concerned?
16 MR. TIEGER: I'm not saying I'm for it or against it,
17 Mr. President. In fact, in most of the situations where that has arisen,
18 that's very much to the advantage of the facts presented. For example,
19 in the circumstance in the football stadium, we -- I did look to see what
20 was behind there, and in fact there is discussion by specific individuals
21 of beatings in the stadium including one person who lost an eye, but I
22 haven't cited that because I didn't know that was what the Chamber would
23 be doing. We have treated the facts as being a presumption and looked --
24 our initial focus has been on whether or not there is credible evidence
25 in the context of the totality of the entire evidence that would in any
1 way rebut that presumption and we have not found it, have not found it in
2 the fact scenario posed by question 6 nor as I will identify in a moment
3 in the fact scenario posed by question 8 relating to Sokolac.
4 And I -- by way -- I mean, I'm happy to consider this further.
5 One issue that arises is it would be difficult for I think the
6 Trial Chamber -- even knowing the facts of the case, it would be -- and
7 the information cited in support, presumably that Trial Chamber is making
8 its determination based on the totality of evidence as well. So
9 assessing how the individual cited pieces of evidence were assessed and
10 weighted would be -- could prove to be a difficult matter for another
12 I alluded to question 8 a couple of times, so let me take care of
13 that quickly. That's 92 bis evidence for scheduled evidence 14.2 and the
14 question was in relation to uncorroborated 92 bis evidence. We would
15 note in relation to the Sokolac incident that that is corroborated by a
16 variety of evidence which we have listed in the scheduled incident chart
17 and which includes the Defence's own witness Dragomir Obradovic who
18 confirmed that the incident occurred. And for that you can see D3175,
19 paragraph 21. As to the broader question of use of uncorroborated
20 Rule 92 bis for the purpose of factual findings, Ms. Pack plans to deal
21 with that in her submissions.
22 Question -- if that's satisfactory, Mr. President, I'll move on
23 to question 7.
24 JUDGE KWON: Scheduled incident 14.2 - it's our question - what
25 schedule is it related to? Do you know the schedule number, C or ... ?
1 [Prosecution counsel confer]
2 MR. TIEGER: I imagine it's A, but I have to look it up. We'll
3 check that and I'll get back to it before I conclude.
4 JUDGE KWON: Yes, A. You're correct.
5 MR. TIEGER: Yes. Thank you.
6 Your Honours, you asked in question 7 for our submissions in
7 respect of Brcko death certificates. So first we acknowledge that there
8 is no evidence linking the victim named in P4411 to incident B5.1. But
9 the victim named in P4412, Mr. Ahmetovic -- Ahtovic [phoen], excuse me,
10 was among the victims buried in a mass grave in Brcko which is listed in
11 Avlijas's 22 October report. That's P1607 at page 14. Ristanic agreed
12 that and testified that the victims in that report were non-Serb
13 civilians who were killed in Brcko, including at Luka camp and similar
14 places, and he also testified that that's -- that he told that to Avlijas
15 in a "straightforward" manner. And that's at P3023, paragraph 220
16 through 223. And it will be up to the Trial Chamber to determine the
17 sufficiency of that link for its purposes, but that does -- that is the
18 information related to the victim in P4412.
19 JUDGE KWON: Just a second.
20 I was told by Judge Lattanzi that there is no French translation
21 and I'm hearing none. Now it seems resolved.
22 Please continue, Mr. Tieger -- just a second before that.
23 Whether the Defence has any observation with regard to this
24 question 6 -- 7, whether it doesn't oppose or agrees with the linkage?
25 MR. ROBINSON: Well, we'd have to look that up, Mr. President,
1 with respect to the second victim that he's just mentioned, but we can
2 address that in our submissions.
3 JUDGE KWON: Thank you.
4 MR. TIEGER: And finally, Mr. President, you -- the Chamber asked
5 in question 13 whether the Prosecution has any submissions as to the
6 possible mitigating effect of the alleged Holbrooke Agreement on any
7 possible sentence imposed on the accused. And in that respect, I would
8 remind the Trial Chamber of our submission on the 15th of January, 2014,
9 relating to the Holbrooke Agreement, in which the Prosecution indicated
10 that while the accused voluntarily withdrawing from public life could in
11 theory have a mitigating effect, albeit minimal in the circumstances of
12 the gravity of the charges of this case, the fact that this withdrawal
13 was purportedly conditions upon a belief that he would obtain a personal
14 benefit, that is, the personal benefit of immunity from prosecution,
15 completely undermines any such potential mitigating effect.
16 That concludes my submissions in response to the questions,
17 Mr. President, and Ms. Gustafson will be addressing the Chamber in
18 connection with the campaign of terror in Sarajevo.
19 JUDGE KWON: Thank you.
20 Good morning, Ms. Gustafson.
21 MS. GUSTAFSON: Good morning, Your Honours. Thank you.
22 From early 1992 to late 1995, the whole world watched as the
23 civilian population of Sarajevo was fired on almost every day, terrorised
24 by a campaign of shelling and sniping, a campaign initiated and
25 maintained by Karadzic and the forces under his command and control.
1 The risks of being targeted by sniping or shelling transformed
2 everyday decisions into ones that could mean life or death. In the words
3 of one of Sarajevo's civilians, Sabina Sabanic:
4 "It was a risk to walk, it was a risk to ride the tram, it was a
5 risk to stay inside a building - no matter what, we had to take daily
6 risks." That's paper 492, page 10.
7 On the 23rd of November, 1994, Ms. Sabanic was shot while taking
8 just such a risk, riding a tram home from work.
9 And civilians dodging bullets became an iconic image of Sarajevo
10 throughout the war. This footage from P928 captures civilians taking a
11 life-or-death gamble of simply crossing the street.
12 [Video-clip played]
13 "In Sarajevo, the crossroads can be lethal, need to be taken at
14 speed. They and the avenues that cut across the city offer the Serb
15 gunners in the hills above with open lines of fire. Flying targets,
16 which the old and the infirm are forced to accept ..."
17 MS. GUSTAFSON: And even when out of the line of sight of Serb
18 snipers, civilians were at the mercy of Serb shell fire. A shell could
19 fall anywhere at any time without warning, such as this one captured on
20 film in P2005 which landed amongst civilians in the city's main shopping
21 street in June 1992.
22 [Video-clip played]
23 "A round fell directly in the middle of the main shopping street.
24 In spite of everything, people do go out in large numbers at this time of
25 day and the mortar claimed its victims at random among them ..."
1 MS. GUSTAFSON: This is a perfect illustration of what KDZ185
2 described as "one or two shells which could land absolutely anywhere, the
3 point being to maintain the feeling of terror." And that's P6060,
4 paragraph 8.
5 Nor were people safe in their own homes. Ziba Subo described the
6 modified air bomb attack, G10, that destroyed her home and killed her
8 "Suddenly my windows were dark and I felt as though an eclipse
9 had fallen. I lifted up my head and things started falling over me ...
10 bricks and plaster were falling all over me. It was caving in ... I just
11 felt the pain of things hitting me ... while I was buried under that
12 rubble, I heard the kids calling me and crying. I yelled to them to run
13 away and get to safety." That's P488, page 7 to 8.
14 This was the attack that the Main Staff reported to Karadzic as
15 an "adequate" response to "enemy activity." That's P5943, page 5.
16 And this image here of P1526 of the devastated Sarajevo state
17 hospital makes clear that there really was no safe place in Sarajevo.
18 Asida Fazlic recounted the debilitating injuries she suffered when a
19 shell exploded on the third floor of this very hospital where she was
20 staying, that's P470, and this attack happened on the night of the 28th
21 to 29th of May, 1992, during the bombardment of the city that Mladic
22 personally commanded and Karadzic supported. And the details of that are
23 in our final brief at paragraph 727.
24 Those who experienced the campaign explained that its message was
25 clear: You are never safe, at no time, in no place. For example,
1 KDZ079, P480, paragraphs 21 to 22; Bell at P1996, paragraph 71; or Mole
2 at P1426, paragraph 9. In other words, terror. And one witness after
3 another, from experienced UN personnel to seasoned war journalists,
4 concluded from observing the campaign day after day that its purpose was
5 to spread terror among Sarajevo's civilian population. And I refer to
6 paragraphs 608 and 784 of our brief.
7 Karadzic oversaw this terror campaign, and together with others,
8 such as Mladic, Galic, and Dragomir Milosevic, used terror as a strategic
9 tool, to leverage negotiations, retaliate for events they perceived as
10 unfavourable, intensify or ease political pressures, and punish the
12 As Anthony Banbury explained:
13 "Mladic and Karadzic absolutely had the ability to modulate that
14 level of terror. They could improve conditions by, for example, opening
15 the airport, allowing commercial supplies, supplying gas, stopping the
16 sniping, stopping the shelling, equally make conditions worse by
17 restricting these things. Both men demonstrated such abilities by using
18 them as leverage in negotiations." That's P2451, paragraph 200.
19 Witness after witness echoed this observation, I refer to
20 paragraphs 608 and 609 of our brief, and many more details about the
21 campaign are of course provided in our brief.
22 And with that backdrop, I'd like to turn now to address some of
23 the arguments the Defence has raised in its brief. First, I'd like to
24 respond to some of the Defence arguments on the accused's responsibility
25 for the crimes encompassed by the campaign. I'd like to then turn to
1 Defence arguments on the nature of the campaign itself and conclude by
2 addressing some of the Defence submissions in relation to the scheduled
4 As RS president and supreme commander of its armed forces,
5 Karadzic led the terror campaign for over three and a half years, all the
6 while deflecting a steady stream of protests. His intent for the crimes
7 of terror, murder, and unlawful attacks and his liability as a JCE
8 participant for these crimes flow from his central role in the campaign.
9 And I refer to our submissions on these matters, for example, at
10 paragraph 614 to 652 and 797 of our brief. And today, as I mentioned,
11 I'll focus on some of the arguments the Defence raises with respect to
12 Karadzic's role in the campaign and intent for the crimes.
13 The Defence argues against overwhelming contrary evidence, that
14 Karadzic was not even aware that there was a shelling and sniping
15 campaign going on just down the road from his headquarters in Pale.
16 We've described in our brief the flood of international protests that
17 Karadzic received about the campaign. I refer to paragraphs 644 to 649
18 of our brief. And at paragraphs 2306 to 2314 of its brief, the Defence
19 appears to contend that these protests were uniformly so unreliable or
20 erroneous that they did not actually inform Karadzic of any crimes or he
21 could justifiably ignore them. However, the very evidence the Defence
22 relies upon to support this claim demonstrates the opposite.
23 For instance, at paragraph 2307 the Defence claims that:
24 "Various incidents demonstrate the inherent lack of international
25 forces to adequately report on the situation as it was at the time."
1 The Defence refers to only two such claimed incidents. The first
2 is the assertion that while Colm Doyle testified about the shelling of
3 the TV building in April 1992, he did not have any acknowledge about
4 where military units were deployed. And this, according to the Defence
5 is a "clear indication of the shortcomings of the reporting procedures."
6 Now, first of all, this mis-characterises Doyle's testimony
7 because at page 2721 of the transcript, Doyle was simply asked which side
8 a particular paramilitary group belonged to and he answered that such
9 determinations were not part of his role. He did not say he had no
10 knowledge of where military units were deployed. But more importantly,
11 the Defence ignores the fact that Karadzic admitted to Doyle at the time
12 that the Serb side had attacked the TV station and then claimed that it
13 had been done without his permission; that's P917, paragraphs 77 to 78.
14 So even if it had been true that Doyle did not know where military units
15 were deployed at the time, this is irrelevant to the reliability of his
16 protest to Karadzic.
17 The only other alleged incident of unreliable reporting is
18 evidence that General Wilson was unable to observe firing positions on a
19 particular day in May 1992. Now, on its face this evidence does not
20 point to any inherent flaws in international reporting. Moreover, Wilson
21 actually visited Serb firing positions around Sarajevo; that's P1029,
22 paragraph 49. And Wilson described the detailed procedure followed by
23 UNMOs to ensure accurate information was reported; that's P1029,
24 paragraphs 17 to 24.
25 And as was the case with Doyle, Wilson explained that when he
1 confronted Karadzic over the indiscriminate shelling of Sarajevo by Serb
2 forces, shelling General Wilson had personally observed, Karadzic did not
3 deny it. He claimed this conduct was justified:
4 "He would simply reply they were defending Serb territory."
5 That's P1029, paragraph 122.
6 So the Defence's only two examples of alleged unreliable
7 reporting by internationals in fact reveal two instances where at the
8 very outset of the conflict Karadzic responded to international protests
9 by acknowledging Serb responsibility. This alone is a sufficient basis
10 from which to entirely reject the Defence argument that Karadzic was not
11 adequately informed of crimes by internationals.
12 As the examples in paragraphs 628 to 635 of our brief
13 demonstrate, Karadzic responded to the regular protests by internationals
14 with a mix of acknowledgements, coupled with false assurances or claimed
15 justifications, as well as threats and denials, depending on the
16 circumstances. The disingenuous nature of such responses is exemplified
17 by his reaction to General Morillon on the 30th of May, 1992, when
18 Morillon conveyed the Secretary-General's appeal to stop the bombardment
19 of Sarajevo. Karadzic initially blamed the bombardment on the
20 overreaction of inexperienced and self-organised forces that were not all
21 under Mladic's command. Then he contradicted himself by affirming that
22 he was in a position to stop the bombardment and would contact Mladic in
23 that regard; that's P1036, pages 1 to 2.
24 The evidence that Karadzic had supported Mladic's proposal to
25 carry out this bombardment and that Mladic --
1 THE INTERPRETER: Kindly slow down.
2 MS. GUSTAFSON: And that's described in our brief at
3 paragraph 727, confirms that Karadzic's claim about inexperienced and
4 self-organised forces was knowingly false.
5 In another effort to undermine the voluminous evidence of
6 international protests to Karadzic, at paragraphs 2308 to 2313, the
7 Defence claims that international officials were "either victims of the
8 Muslim side's deception or were themselves party to the conflict."
9 That's paragraph 2314 of the Defence brief. As these claims rely on
10 evidence from these very same international officials regarding Bosnian
11 efforts to attract international sympathy, it is clear that these
12 officials were in no way deceived. In any event --
13 JUDGE KWON: Just a second. You remember having heard the
14 request from the interpreters. Take a look at transcript page 13,
15 lines -- from 9:
16 "The disingenuous nature of such responses is exemplified by his
17 reaction to General Morillon when Morillon conveyed the
18 Secretary-General's appeal to stop the bombardment of Sarajevo. Then he
19 contradicted himself by affirming that ..."
20 I think that something is missing there.
21 MS. GUSTAFSON: That he contradicted himself by affirming that he
22 was in a position to stop the bombardment and would contact Mladic in
23 that regard.
24 JUDGE KWON: Did you not say that it was not professional
25 reaction to the effect?
1 MS. GUSTAFSON: Yes. And then the evidence that Karadzic had
2 supported Mladic's proposal to carry out this bombardment and that Mladic
3 personally commanded it; that's paragraph 727 of our brief.
4 JUDGE KWON: Very well. I'll leave it at that. Please continue
5 but please bear in mind that you should slow down.
6 MS. GUSTAFSON: Yes, Your Honour. Thank you. And the last line
7 was: Confirms that Karadzic's claim about inexperienced self-organised
8 forces was knowingly false.
9 Now at paragraph 2313 of its brief, the Defence cites
10 General Rose's evidence for the proposition that "the false picture
11 presented by the Muslims was a contributing factor to an apparent lack of
12 objectivity by UNPROFOR."
13 General Rose did not say this. He confirmed only that this was
14 the Bosnian Serb perspective; that's page 7290 of the transcript. The
15 Defence goes on to completely misrepresent General Rose's testimony by
16 asserting that it supports the claim that "UNPROFOR facilitated and took
17 part in the smuggling of weapons or military equipment to the
18 Bosnian Muslims."
19 But as this slide shows in the cited testimony, rose
20 categorically denied that very proposition:
21 "Well, first I would absolutely deny that the United Nations
22 facilitated or, indeed, took part in the smuggling of any weapons or
23 other military equipment to the other side."
24 And what was Rose's actual position on UN objectivity, testimony
25 that doesn't find its way into the Defence brief?
1 "We acted in an impartial and proper manner and to suggest
2 otherwise is to make the sacrifices of those people who died during the
3 United Nations peacekeeping mission unworthy, and that is not the right
4 thing to do." That's transcript page 7532.
5 At paragraph 2312 of its brief, the Defence cites Fraser, Thomas,
6 Mole, and Wilson for the proposition that the ABiH fired from civilian
7 areas in order to provoke an SRK response that could then be blamed on
8 the Serbs. These witnesses frankly acknowledged that this did occur and
9 was protested by the UN. See, for example, Fraser at page 8075 of the
10 transcript. However, these witnesses also described the indiscriminate
11 Serb responses to such fire, responses that clearly reflect an intent to
12 target civilians or civilian objects. Mole, for instance, characterised
13 such responses as "pointless."
14 "In extreme excess of what would be required to destroy the
15 target" with rounds falling in a manner indicating a limited focus on the
16 actual source of fire and with a time lapse such that there was
17 possibility of the opposing units still being in the same location.
18 That's page 5892 to 5893.
19 General Fraser recounted an occasion whereby the Serbs fired
20 20-plus rounds indiscriminately across the city in response to a few ABiH
21 rounds targeting the Lukavica barracks; that's page 8007 -- 8006 to 8007.
22 And Wilson watched the Serbs respond to two or three ABiH mortar rounds
23 by firing 200 rounds across a large urban area, hitting and setting on
24 fire apartment blocks, a response he described as "entirely
25 disproportionate" and "typical of what happened at the time." That's
1 page 4132 to 4133.
2 The Defence has ignored this evidence, evidence that shows that
3 international officials in Sarajevo were not deceived. They were not
4 deceived by ABiH fire aimed at provoking an SRK response, nor were they
5 deceived by the SRK's use of such incoming fire as a pretext to terrorise
6 the civilian population with pointless shelling.
7 In light of the stream of reports and protests provided directly
8 to Karadzic as well as to his subordinates throughout the campaign, and
9 these are summarised at paragraphs 644 to 649 of our brief, Karadzic's
10 claim at paragraphs 2962 to 2966 of his brief that he was not informed
11 through the SRK or VRS chain of command of acts of terror or unlawful
12 attacks does not assist him. To the contrary, the absence of such
13 reports in the face of, one, a sophisticated communications system; two,
14 the overwhelming evidence that the SRK was shelling and sniping civilians
15 on a virtually daily basis for 44 months; and three, the fact that
16 Karadzic and his subordinates were regularly informed of this by
17 international officials shows that these attacks were treated as routine
18 and accepted at every level of the command chain.
19 Defence efforts at paragraphs 2962 to 2963 to argue that SRK
20 communications were impaired to the point of "chaos" rest on gross
21 exaggerations and outright misstatements. For example, at paragraph
22 2963, the Defence says that "problems with the system of command and
23 control persisted until the very end of the war." The Defence cites two
24 pieces of evidence, the first is D2841, an SRK command warning about a
25 failure to submit monthly reports on combat morale. In other words, an
1 obsession with a minor reporting flaw indicating a generally
2 well-functioning system. And the second is Dragomir Milosevic's
3 testimony on that very document, which confirms this. At page 32879 he
5 "I know that the system that was in place could ensure that we
6 worked normally, and any kind of intervention of this nature was simply
7 an expression of the need to have it improved or to do away with
8 shortcomings. Since I know how the entire situation ended, I believe
9 that the system towards the end functioned meticulously."
10 So here we have another instance of the Defence evidence
11 contradicting the very proposition for which it is cited. And it's the
12 evidence at paragraphs 676 of 697 of our brief confirms the SRK enjoyed
13 excellent command, control, and communications throughout the campaign.
14 Karadzic used this system of command, control, and communications
15 to directly control the intensity of the shelling and sniping campaign to
16 further his strategic aims. For example, on the 7th of February, 1994,
17 Karadzic issued this order, P3053, to the Main Staff, SRK commander, and
18 SRK brigades. In the preamble, Karadzic explains that the circumstances
19 are such that the very existence of the Serb state is under threat.
20 That's point 2 of the preamble. As a result, he orders strict control
21 over retaliation, that only military targets be engaged, and the
22 out-of-control shelling be prevented. Karadzic issued this order in
23 direct response to threatened NATO air strikes following the Markale I
24 massacre and the ensuing international outrage. That's P826, page 2.
25 Indeed, the very same day Karadzic issued this order Akashi had
1 firmly told him that unless he agreed to a cease-fire the UN would have
2 to bow to international pressure and agree to NATO air strikes. That's
3 Rose at P1638, paragraph 41.
4 General Milovanovic immediately implemented Karadzic's order in
5 P4493, issued the same day.
6 Two days later, on the 9th of February, the same day that NATO
7 demanded that the Bosnian Serbs withdraw their heavy weapons or face NATO
8 military action, the Bosnian Serb leadership agreed to a cease-fire to
9 come into effect the next day, including an agreement to withdraw heavy
10 weapons. That's P826, pages 2 and 4. As Krajisnik said at the time:
11 "We will do everything to avoid air strikes, except capitulate."
12 That's P827, page 6.
13 And the cease-fire was also immediately implemented as evidenced
14 by this 10th of February SRK order P1642.
15 It explicitly implements the agreed cease-fire and orders all SRK
16 units to cease fire at 12.00 on the 10th of February, 1994. And the
17 effectiveness of this order was palpable. Seven days later UNPROFOR
19 "Sarajevo is calm. The present cease-fire is by far the most
20 effective ever made."
22 "For the first time since the beginning of the war, Sarajevo is
23 largely quiet and has been since NATO threatened to use air strikes
24 against heavy guns around the city." That's P827, pages 1 to 2.
25 As these documents and events demonstrate, when Karadzic's back
1 was against the wall, when western military intervention was imminent,
2 Karadzic didn't claim he couldn't control his rogue gunners or brush off
3 protests with false promises or claim justifications. Nor was he stymied
4 by poor roads, downed telephone lines, or power cuts. He, the supreme
5 commander, exercised his impressive command and control to immediately
6 bring the terror campaign to a virtual, albeit temporary, halt.
7 At paragraph 2982 of its brief, the Defence relies on Karadzic's
8 post-Markale order to stop the shelling affirmatively. According to the
9 Defence, this order demonstrates that Karadzic ordered adherence to
10 international law and the protection of civilians. To the contrary, this
11 order and the evidence surrounding it shows that Karadzic could have
12 stopped the terror campaign, he could have stopped the daily suffering of
13 Sarajevo's civilian population. Instead, he toned it down temporarily to
14 avoid air strikes, thereby facilitating its continuation. And he
15 continued to oversee the terror campaign for nearly two more years,
16 including as it reached a crescendo in the spring and summer of 1995,
17 when Serb forces intensified shelling and sniping and launched a series
18 of modified air bombs into the city in retaliation for ABiH offensives
19 and NATO air strikes. That's paragraph 741 to 754 of our brief.
20 Other examples of Karadzic exerting direct control over the
21 shelling and sniping relied on by the Defence are likewise consistent
22 with his modulation of the terror levels. For instance, at
23 paragraph 2983, the Defence claims that P4804, Karadzic's 11 August 1993
24 order to General Gveric -- sorry, General Gvero and Colonel Prstojevic
25 that "no mine must go towards the town at any price" also shows
1 Karadzic's efforts to adhere to international law and protect civilians.
2 The Defence ignores the fact that Karadzic's expresses rationale for this
3 order is not to protect Sarajevo's civilians but to protect the
4 Bosnian Serbs. As he told Gvero when he issued this order, shells
5 falling on Sarajevo would be "the greatest misfortune that could befall
6 us now." That's in P4804. The Defence also ignores P825, Galic's
7 implementation of this order issued the same day. Galic expressly cites
8 the threat of NATO air intervention and the ongoing political
9 negotiations as the rationale for halting fire over Sarajevo. As we
10 explained in our brief at paragraph 624, this is another example of
11 Karadzic exerting direct operational control over the shelling of
12 Sarajevo to ward off air strikes.
13 And in the same vein, Karadzic's order D4510 which is cited in
14 paragraph 2971 of the Defence brief is linked to external pressure as
15 evidenced by D172.
16 So again, the very evidence relied on by the Defence to argue
17 that Karadzic was trying to protect the civilian population in fact
18 demonstrates the opposite. It confirms the wealth of other evidence
19 demonstrating that Karadzic and other members of the Bosnian Serb
20 leadership ratcheted the terror both up and down to leverage
21 negotiations, punish the Bosnian side for ABiH military actions elsewhere
22 or otherwise further their political aims. And I refer to our brief at
23 paragraphs 609 and 620 to 627 in this regard.
24 At paragraphs 2997 through 3000 the Defence asserts that Karadzic
25 took measures to investigate and punish crimes relating to the shelling
1 and sniping. The Defence's alleged "examples" of SRK investigations into
2 fire being opened on civilians cited in paragraph 2997 in fact reveal no
3 such instances. None of the four cited documents mention any incidents
4 of firing on civilians. The Defence relies in the same paragraph on
5 Dragomir Milosevic's claim that he submitted 70 criminal reports, while
6 failing to note that he was unable to say if any of them related to
7 firing on civilians in Sarajevo. That's transcript page 33212.
8 In Karadzic's November 1994 Assembly speech in P1403, relied on
9 at paragraph 3000 of the Defence brief, does not, as alleged by the
10 Defence, "demonstrate that he was doing everything in his power to
11 prevent the illegal shelling of the city and have such incidents
12 investigated." When the entirety of this speech, rather than the
13 selection cited by the Defence, is read, it is clear that Karadzic knew
14 that drunk soldiers were "pointlessly" firing shells into Sarajevo
15 without "aim and purpose." And Karadzic was complaining that this had
16 caused him "a hard time" and was a waste of expensive ammunition. Such a
17 nonchalant attitude towards patently unlawful conduct is consistent with
18 the fact that by the time Karadzic made this speech he had allowed such
19 conduct to persist, almost continuously, for two and a half years and
20 would allow it to persist for another year more. Yet again the evidence
21 relied on by the Defence undermines the very proposition for which it is
22 cited. The Defence's purported evidence of investigation and punishment
23 simply underscores Karadzic, Mladic, and SRK commanders' manifest failure
24 to prevent and punish SRK shelling and sniping of civilians and is a
25 further reflection of their intent for this criminal campaign.
1 At paragraphs 2984 through 2996 of its brief, the Defence argues
2 that Karadzic did not restrict but rather enabled the flow of
3 humanitarian aid and utilities to Sarajevo. Much of the cited evidence
4 demonstrates Karadzic's control over the flow of humanitarian aid and
5 utilities and is consistent with his modulation of that flow in support
6 of the terror campaign. And while Karadzic claims at paragraph 2984 that
7 "several international witnesses" confirmed his "co-operative nature" in
8 this context, the cited evidence contains absolutely no support for the
9 proposition that Karadzic co-operated with anyone to enable the flow of
10 aid or utilities. And of course this is no surprise, in light of the
11 consistent observations of international officials, that Karadzic and the
12 Bosnian Serb leadership controlled the flow of utilities and humanitarian
13 aid as another way of turning what David Harland coined "a spigot of
14 terror." That's P820, paragraph 39, and I refer in this regard to
15 paragraphs 622 and 777 to 782 of our brief.
16 In short, Your Honours, the evidence the Defence relies on in an
17 effort to undermine Karadzic's criminal responsibility supports the
18 opposite conclusion. Not only was Karadzic well aware that his
19 subordinates were spreading terror among civilians by firing all manner
20 of projectiles at them while depriving them of food, water, and fuel, he
21 controlled and modulated that terror in accordance with his strategic
22 aims. For month after terrible month for over three and a half years,
23 Sarajevo civilians were at his mercy and he showed them none.
24 I'd like to turn now to the Defence arguments on the nature of
25 the campaign. I earlier outlined the evidence of the persistent shelling
1 and sniping of civilians that so many observers concluded was aimed at
2 spreading terror amongst the population. According to the Defence story
3 of the campaign, this was not 44 months of terror caused by constant
4 shelling and sniping of civilians. For 44 months, according to the
5 Defence, the SRK engaged in a precise, lawful campaign, targeting purely
6 military objects. This version of events relies almost exclusively on
7 the claims of the very SRK officers alleged to have implemented this
8 campaign, including in large measure the two corps commanders who have
9 been convicted by this Tribunal for just that. But aside from being an
10 inherently self-serving account, aside from being thoroughly at odds with
11 the consistent observations of those who lived through the campaign,
12 including a parade of disinterested military observers, and aside from
13 being contradicted by what the whole world could see on their television
14 screens, the Defence story collapses under the weight of its own internal
15 contradictions. On its face, it is impossible to maintain.
16 If Your Honours wish to break now, this would be a good moment.
17 JUDGE KWON: Thank you. We'll have a break for 20 minutes and
18 resume at 17 past 10.00.
19 --- Recess taken at 9.58 a.m.
20 --- On resuming at 10.18 a.m.
21 JUDGE KWON: Yes, please continue, Ms. Gustafson.
22 MS. GUSTAFSON: Thank you, Your Honours.
23 As I mentioned before the break, the Defence version of a
24 supposedly lawful military campaign is so permeated with contradictions,
25 it is unsustainable on its own terms.
1 For instance, the Defence claims that orders to comply with
2 international standards were promulgated and passed down the chain of
3 command, soldiers and officers were trained on these matters, and they
4 consistently complied with them. See, for example, paragraphs 1850 to
5 1852, 1907, 1911, and 1948 to 1951 of the Defence brief. Elsewhere,
6 however, the Defence asserts that SRK officers and soldiers were
7 untrained, inexperienced locals and that this lack of training and
8 experience negatively impacted command and control, resulting in frequent
9 problems of discipline and disobeying orders. That's paragraphs 2329 to
10 2330. So while on the one hand the Defence posits a strictly
11 IHL-compliant military campaign, a claim that is utterly defeated by the
12 weight of the contrary evidence, on the other hand the Defence puts
13 forward a secondary, inconsistent argument apparently aimed at accounting
14 for that evidence. The secondary argument also fails, however, given the
15 overwhelming evidence that the campaign was orchestrated at the highest
16 levels and implemented through an impressive command and control
17 structure. And I would refer to our brief at paragraphs 612 to 642 and
18 682 to 697.
19 In another such example, the Defence asserts that it was
20 impossible to distinguish civilians and combatants by their clothing and
21 therefore that "SRK forces had to assume that any person venturing near
22 the front lines and within range of infantry weapons constituted a threat
23 and could be a potential target." That's paragraphs 1907 to 1908.
24 Elsewhere, the Defence asserts that SRK members took every possible
25 precautionary measure and refrained from fire if there was any
1 possibility of hitting civilians; that's paragraphs 1911 and 1925.
2 Again, these inconsistent claims appear aimed at claiming a lawful
3 military campaign while attempting to account for masses of contrary
4 evidence. And, while making these claims about the supposed
5 precautionary measures taken, the Defence ignores contrary evidence from
6 its very own witnesses such as Slavko Gengo who admitted to freely
7 responding to fire by launching shells into urban areas from several
8 kilometres away while taking no precautionary measures; that's transcript
9 page 29781 to 29782. And while the Defence cites Mile Sladoje at
10 paragraph 1927 for the proposition that "civilian casualties could not
11 always be excluded," Sladoje in fact acknowledged that firing into urban
12 areas entailed a high risk of civilian casualties, but, like Gengo, he
13 asserted that this was the other side's problem not his. That's at
14 page 30573. Gengo and Sladoje's description of responding to ABiH fire
15 by launching shells into civilian-populated areas with total disregard
16 for the obviously high risk this entailed for the civilian population
17 illustrate a level of disproportionality of an intent to target civilians
18 or civilian objects. In any event, overwhelming evidence shows that the
19 vast majority of SRK fire in Sarajevo simply targeted civilians or
20 civilian areas and was not even ostensibly responsive to ABiH fire. And
21 I would refer in this regard to our brief at paragraphs 731 to 732 and
22 765 to 771.
23 In the sniping context at paragraphs 2171 to 2173 the Defence
24 claims that it was never the task of SRK snipers to open fire on
25 civilians, relying almost exclusively on self-serving implausible
1 assertions by Galic, Milosevic, and other SRK officers. This includes
2 express reliance in paragraph 2172 on Dragomir Milosevic's astonishing
3 claim at page 32821 that SRK snipers never opened fire on civilians. And
4 clearly the Defence does not even believe this claim since in the
5 immediately preceding paragraph the Defence acknowledges civilian
6 casualties through sniping and attributes this to uncontrolled snipers.
7 And the source of this contradictory proposition? Also
8 Dragomir Milosevic.
9 These kinds of contradictions permeate the Defence arguments. In
10 another example, in paragraph 1959 the Defence brief claims "necessary
11 assessments were conducted prior to any shelling campaign in order to
12 ascertain the possibility of collateral damage," citing again to
13 Milosevic at transcript page 32582. But Milosevic did not say this.
14 Instead, he offered another completely incredible assertion, claiming
15 that the SRK never fired at areas where civilians were present and said
16 nothing about collateral damage assessments. Rather than accurately
17 repeat such a blatant falsehood, the Defence adjusts it to fit into its
18 paradigm of asserting a lawful military campaign while attempting to
19 account for the volumes of contrary evidence.
20 Similarly, in paragraph 1952, the Defence cites Stevan Veljovic's
21 evidence for the proposition that brigades were prohibited from firing on
22 targets in areas such as Hrasno, Bascarsija, and the hospital. Although
23 Veljovic did mention these specific locations in the cited passage, he
24 continued his answer with the sweeping assertions that it was forbidden
25 to fire on any targets "in the depth," "in the town," or in "urban
1 neighbourhoods" and attributed any shells that "hit the town" to
2 incorrect data or wet gunpowder. That's page 29282 to 29283.
3 Another piece of incredible testimony that the Defence has
4 elected to mold into something presumably more palatable.
5 In paragraph 1937 that you can see here, the Defence couples a
6 blanket denial that SRK units fired at the Kosevo Hospital, schools,
7 nurseries, or commercial buildings with the therefore irrelevant claim
8 that any decision to fire on such buildings would have taken into account
9 the presence of civilians and whether the building was a military target
10 posing a danger. These contradictory claims are based on
11 Dragomir Milosevic's contradictory testimony at page 33136 through 33138,
12 where he categorically denied firing at such locations before admitting
13 to firing at such locations under certain circumstances.
14 Yet another failed effort to explain the SRK shelling of civilian
15 areas nowhere near the confrontation lines is revealed in paragraph 1953,
16 where the Defence claims that "the SRK had information of military
17 targets deep in the territory of the 1st ABiH Corps," including, among
18 other claimed targets, command headquarters. The Defence ignores
19 Milosevic's testimony that the SRK never fired at any ABiH command posts,
20 33127 to 33129, an admission that accords with the observations of
21 internationals. Konings, for example, explained that shelling near ABiH
22 command posts was rare and most shelling impacts were not near military
23 targets; that's P1953, paragraph 30.
24 Similarly, Fraser explained that during his entire time in
25 Sarajevo the ABiH 1st Corps headquarters, despite being a key target, was
1 never shelled; that's page 8006 to 8007.
2 I'd like to turn now from these tangled efforts by the Defence to
3 fit the evidence of its SRK witnesses into its version of events to the
4 few Defence efforts to support its account of a supposedly lawful
5 military campaign with contemporaneous documents. These efforts are also
6 mired in contradictions.
7 For example, the claim in paragraph 1944 that "orders reiterated
8 the fact that civilians were not to be targeted" cites Milosevic's order
9 D2580. Nowhere does this order say that civilians were not to be
10 targeted. However, it does state in paragraph 4:
11 "Do not forget about retaliatory measures or any other issues
12 which must become prominent in the case of fighting."
13 In paragraph 2, the order also instructs brigades not to wait for
14 corps command decisions on "minor issues" such as "should we block
15 UNPROFOR?" Or "should we seize weapons through under UNPROFOR control?"
16 And these instructions in Milosevic's order directly contradict Defence
17 claims elsewhere; for instance, at paragraph 1838 to 1844, where the
18 Defence describes the leadership's supposed genuine efforts to place SRK
19 artillery under UNPROFOR control and the almost total compliance with the
20 agreement to do so. And while I'm on this topic of the Total Exclusion
21 Zone Agreement, I should mention that those claims are also undermined by
22 the very evidence relied upon. For instance, the sole source for the
23 alleged sincere intention of the leadership to comply with the Total
24 Exclusion Zone Agreement described at paragraph 1841 is Vladimir Lucic's
25 badly assertion to that effect. But what did Lucic say when he was
1 confronted with a series of directly contradictory documents? He
2 disclaimed all knowledge and insisted his unit was 70 kilometres away
3 from Sarajevo facing the other direction; that's transcript page 30792 to
4 30797. Again, this part of his testimony did not find its way into the
5 Defence brief.
6 At paragraph 1932 the Defence cites D2810. This is
7 General Galic's supposedly strict orders to limit behaviour that was not
8 legitimate in combat. As you can see, this order forbidding the use of
9 larger-calibre weapons without permission of the corps commander or his
10 deputy says nothing about limiting illegitimate behaviour, and the corps
11 commander's exercise of control over large-calibre weapons "until further
12 notice" is entirely consistent with the large body of evidence
13 demonstrating that the terror campaign was centrally controlled. And I
14 would refer in this regard to our brief at paragraph 614 to 627 and 654
15 to 659.
16 The Defence also relies on Mladic's order recorded in P2419 and
17 P2420, which reflects Mladic's reaction upon discovering that local
18 authorities and the SRK commander were planning to remove
19 UNPROFOR-controlled weapons and use them to fire at civilian targets in
20 Sarajevo. The Defence cites this order twice, mis-characterising it both
21 times. As this slide shows, at paragraph 1934 the Defence brief says:
22 "General Mladic forbad ... the use of weapons of bigger calibre
23 on civilian targets."
24 While at paragraph 1949, the brief says:
25 "An order from Ratko Mladic prohibited the firing of large
1 calibre weapons on targets in Sarajevo without his approval."
2 What does this order in fact say? P2419 says:
3 "I forbid firing from large-calibre weapons at civilian targets
4 in Sarajevo without my approval."
5 The language of this order is a transparent reflection that
6 firing on civilians in Sarajevo is accepted behaviour, as long as
7 Mladic's conditions are met, i.e., small-calibre weapons or Main Staff
8 approval. Faced with this, the Defence simply asserts it says something
9 else, skirting key language in the order to make misleading points.
10 The Defence also ignores the express rationale for this order.
11 Mladic states that the planned removal of UNPROFOR-controlled weapons to
12 fire at civilians in Sarajevo could have "far-reaching negative effects
13 on the Serbian people." He makes no mention of any negative effects this
14 would have on the civilians in Sarajevo who would be fired at. And
15 P2419 also contains a handwritten warning:
16 "UN teams have been invited to identify combat actions aimed at
17 our combat positions."
18 In other words, this is another clear example of modulation.
19 Mladic is preventing violations of the Total Exclusion Zone Agreement in
20 an effort to avoid international intervention. And it is a further
21 reflection of the centralised control exercised over the terror campaign.
22 In other words, another failed effort by the Defence to fit the
23 evidence into its version of the campaign.
24 At paragraphs 2392 to 2395, the Defence claims that the SRK was
25 forced by the other side to wage arrest in Sarajevo in the manner it did.
1 The centrepiece of this argument is the claim that "fire was coming from
2 everywhere, the entire city." That's paragraph 2393. And the Defence
3 cites to 101 SRK combat reports between 1992 and 1994. When these
4 reports are actually examined, however, it is clear that these Defence
5 claims are a wild exaggeration. The vast majority report ABiH fire from
6 unpopulated areas with ABiH positions such as Mount Igman, Zuc, and Hum,
7 front line positions such as Butmir, Mojmilo, and Hrasnica, or areas in
8 the outer circle, miles from Sarajevo. A total of just 16 of these 101
9 combat reports indicate artillery or mortar fire coming from anywhere in
10 the city centre. And in spite of the repeated claims by Defence
11 witnesses that the Kosevo Hospital area was a "daily source" of ABiH
12 fire, for example, Indjic, D2774, paragraph 9, one of these 101 reports
13 reflects outgoing fire of any kind coming from the Kosevo Hospital area;
14 that's D3411.
15 For the most part, the Defence has declined to directly engage
16 with the enormous volume of Prosecution evidence that directly
17 contradicts its version of the campaign. The few efforts to do so also
19 For instance, at paragraph 1962 the Defence incredibly asserts
20 that "UN observers never asked the Bosnian Serbs to cease fire, nor did
21 they report illegal use of artillery fire." This cites to the evidence
22 of Dusan Skrba. The Defence has taken the evidence of one witness whose
23 experience was temporally, geographically, and institutionally limited
24 and turned it into a sweeping proposition while ignoring the tremendous
25 volume of protest evidence in this case, evidence that includes
1 admissions from both Galic and Milosevic that they received such
2 protests; for example, page 37642 and 32705 to 32706. The only direct
3 effort by the Defence to address the consistent observations of UN
4 personnel that the shelling and sniping was directed at civilians is at
5 paragraph 1960, where the Defence claims:
6 "When the SRK fired a small number of shells only to stop the
7 enemy fire, thus showing restraint, this was sometimes characterised by
8 UN observers as a harassing or terrorising fire against civilians, only
9 because it was not concentrated."
10 Now, this entirely mis-characterises the evidence of UN military
11 professionals who agree that the SRK practice of firing one or two shells
12 at a time into civilian areas was random, served no military purpose, and
13 could only have been intended to terrorise civilians.
14 Konings, for example, contrasted the concentrated fire that would
15 be necessary to destroy a military target versus what he observed over
16 and over, rounds landing far from any military targets, shelling which
17 had "no military pattern," "just firing single rounds into the city,
18 knowing you were always hitting something." That's P1953, paragraphs 30,
19 35, 38, and 96.
20 Or as Brennskag explained:
21 "In my experience, single rounds do not form part of a normal
22 military offensive. They provide little or no military advantage. This
23 indicates to me that the aim of such fire was not to hit military
24 targets, but instead to terrorise the civilian population."
25 And he added that this occurred several times a day in June 1995,
1 resulting in purely civilian casualties. That's P1851, paragraph 31.
2 Other similar examples are in our brief at paragraphs 731 to 732.
3 The scheduled shelling incidents exemplify this pattern of firing single
4 or small numbers of rounds into civilian areas. For example, G5, a
5 single mortar round explodes amongst a group of civilians lined up to
6 collect water killing more than ten of them. Or G6, three mortar rounds
7 fired into Alipasino Polje, killing six children who had been playing in
8 the snow. Or G8, a single mortar round explodes in Markale market,
9 killing more than 60 people and injuring 140 more.
10 No restraint is exercised when deadly shells are launched into
11 civilian-populated areas for no military purpose. This was clearly aimed
12 at spreading terror among the civilian population. And in making these
13 claims about supposed SRK restraint, the Defence simply ignores the
14 evidence of the SRK's indiscriminate bombardments of the city,
15 bombardments that occurred throughout the campaign, bombardments in which
16 "fire rained down all over Sarajevo." That's van Lynden describing G2 at
17 P926 at paragraph 55. Or the precisely co-ordinated bombardments on both
18 24 December 1992 and 7 January 1993, bombardments whereby at exactly
19 midnight every Bosnian Serb gun, mortar, and tank was deployed in a
20 massive barrage firing "across the length and breadth of the city," in
21 spite of the fact that there were "very few military targets in Sarajevo
22 which could be engaged by heavy weapons in darkness." That's Tucker at
23 P4203, paragraphs 109 to 114. Other examples are in our brief at
24 paragraphs 727 and 736.
25 The Defence claims of a precise, cautious, lawful campaign cannot
1 even begin to account for these massive indiscriminate SRK bombardments.
2 So the Defence tells its story of the campaign as if such events simply
3 did not happen.
4 The Defence version of the campaign also can't account for the
5 scheduled shelling and sniping incidents, incidents which illustrate the
6 pattern of targeting civilians engaged in obviously civilian activities:
7 Children playing, women collecting water, civilians shopping or obtaining
8 humanitarian assistance far from any military objects or military
9 activity. Faced with this evidence, the Defence brought two expert
10 witnesses: Mile Poparic and Zorica Subotic, who constructed elaborate
11 theories aimed at establishing that the SRK is not responsible for any of
12 the sniping, mortar, or artillery incidents, and with respect to modified
13 air bombs that these were precise, accurate weapons launched only at
14 military targets. In appendix C of our brief, we have explained how
15 these theories are speculative, unsound, and in many instances outright
16 absurd. I refer in particular to paragraphs 7 to 12 and 43 to 47. And
17 we have specifically addressed their theories for a sample of the
18 scheduled incidents, see paragraphs 9 to 11 and paragraph 45 of
19 appendix C.
20 Today I will expand on how these experts' flawed methodologies
21 permeate their analysis of the scheduled sniping and shelling incidents
22 with a few additional examples and address some additional arguments on
23 the scheduled incidents raised in the Defence brief.
24 One general argument the Defence raises at various points in its
25 brief, including in connection with many of the scheduled incidents is
1 the claim that the Bosnian authorities were responsible for attacking
2 their own civilian population in an effort to provoke a military
3 intervention. For example, at paragraphs 1968 to 1979, 2181 and 2311.
4 While the Defence asserts that "several such incidents took
5 place," that's paragraph 1976, rarely does this argument venture into the
6 territory of genuine analysis of real events. Most of the Defence
7 evidence is based on rumours or vague allegations outside the scope of a
8 witness's personal knowledge and coming in large measure from witnesses
9 with little or no credibility. This includes the vague claims of
10 Milosevic, Galic, and Sarenac cited at paragraph 1976 or, for example,
11 Milorad Sehovac's statement that he heard "rumours" to this effect but
12 had "no direct information." That's D2633, paragraph 38, cited at
13 paragraph 2181.
14 The Defence also distorts and mis-characterises the evidence.
15 For instance, in support of the claim at paragraph 1976 that the ABiH
16 shelled civilian facilities in an effort to falsely blame the SRK, the
17 Defence cites three SRK combat reports, none of which say anything at all
18 about the ABiH firing on its own population, and those are D3411, D3424,
19 and D3442.
20 The Defence also mis-characterises a raft of Prosecution
21 evidence, including that of Harland, Thomas, Mole, and Fraser. In one
22 typical example, the Defence claims at paragraph 1972 that Fraser "even
23 remembered that some French soldiers came across a Muslim TV crew filming
24 a staged attack of children, preparing to use it on TV against the
1 In reality, Fraser did not "remember" this. He testified that he
2 had heard stories, but stressed that he had seen no such film. That's
3 page 8051.
4 The Defence goes on to claim that Fraser's "assessment was that
5 the Muslim authorities were guilty of targeting civilians," clearly
6 suggesting by the context that Fraser was referring to the Bosnian
7 authorities' own civilian population. However, Fraser made clear in the
8 very passage cited that this was not the case. He said that he did not
9 recall ever saying that there was an ABiH policy to target their own
10 civilians. That's page 8054.
11 And as Jeremy Bowen explained and as logic dictates, it would be
12 impossible to keep a conspiracy like this secret and certainly if any
13 substantial portion of the campaign had been executed by the ABiH, the
14 world would know about it by now. And I refer to Bowen's evidence,
15 P2068, paragraph 39. And while the Defence made its claims about the
16 ABiH targeting its own civilians in Sarajevo, a centrepiece of its case,
17 the handful of weak, vague claims that ultimately emerged only
18 underscores the Prosecution's evidence that the SRK was responsible for
19 the overwhelming majority of attacks on Sarajevo civilians and any
20 possible exceptions were at most de minimus, and I refer in this regard
21 to our brief at paragraph 795.
22 And in the face of overwhelming evidence of an SRK campaign of
23 sniping and shelling civilians, the Defence argument also defies logic.
24 In the midst of this existing SRK campaign, any effort by the Bosnian
25 authorities to target their own people in order to falsely blame the SRK
1 for a few additional attacks would have been an extremely high-risk
2 strategy with little or no political benefit. The only conceivable way
3 the Bosnian authorities could have imagined provoking Western military
4 intervention in this regard would be to stage a large-scale massacre.
5 But when such conspiracy theories are taken out of the realm of
6 conjecture and applied to real facts, as Subotic attempted to do so for
7 G8, G9 and G19, the resulting explanations are completely unhinged from
8 reality. And I will be getting to those unhinged theories shortly.
9 For a number of scheduled incidents, the Defence makes a related
10 argument that the Prosecution has failed to prove that the bullet or
11 shell originated from SRK territory. However, these arguments focus
12 improperly only on the ballistics analysis of the incident. Even if the
13 Chamber were to find that ballistics evidence alone for one or more of
14 the scheduled incidents does not conclusively establish the source of
15 fire as SRK territory, this does not translate into a failure of proof.
16 Although in each of the scheduled shelling and sniping incidents, the
17 ballistics evidence alone points strongly, if not conclusively, to an
18 origin of fire in SRK-held territory, this evidence fits within a much
19 larger body of corroborating evidence, evidence we have highlighted in
20 appendix C of our brief. For instance, for many incidents, the
21 ballistics analysis points to notorious sources of SRK fire targeting
22 civilians and the locations of the shelling and sniping attacks
23 themselves also fit within a broader pattern of areas in which the SRK
24 regularly targeted civilians. A number of shelling attacks involved
25 multiple mortar or artillery rounds. Similarly, many of the sniping
1 incidents involved repeated fire at the same location, either before or
2 immediately after the victim was hit. Such conduct simply does not fit
3 with a theory that the perpetrators were attempting to falsely blame the
4 SRK, and this is because the firing of multiple rounds or multiple
5 bullets would greatly increase the risk of detection with little or no
6 added benefit. And of course each of the scheduled incidents by their
7 nature and effect fits squarely within the overwhelming evidence of the
8 three-and-a-half year campaign by the SRK of shelling and sniping the
9 civilian population.
10 Further, the scheduled incidents were professionally and
11 proficiently investigated by experienced local professionals, which
12 results were in many cases corroborated by independent UN investigations
13 and independent experts. For none of the scheduled incidents is there
14 any credible evidence pointing to ABiH responsibility or any credible
15 evidence to suggest that the investigations were in any way manipulated.
16 And as I just pointed out, the evidence shows that the Bosnian
17 authorities could not possibly have been targeting its own civilian
18 population with any kind of regularity and for the vast majority of
19 scheduled incidents they could have no conceivable motive to do so. In
20 summary, the contention that the Bosnian authorities were responsible for
21 any of the scheduled incidents based on an isolated analysis of allegedly
22 inconclusive ballistic assessments is at most a speculative notion that
23 does not give rise to a reasonable doubt.
24 JUDGE KWON: What is your position, Ms. Gustafson, as to some
25 evidence that alludes to the possibility of firing to the internationals
1 on the part of the ABiH, UNPROFOR, in order to provoke the retaliation
2 and to invite the international intervention?
3 MS. GUSTAFSON: Yes, Your Honours. There is some evidence of
4 that as well. Again, it is largely based on rumours and vague
5 allegations or, for example, the evidence of Edin Garaplija who had
6 tortured such a confession out of an alleged perpetrator of such an
7 incident. But in any event, those --
8 JUDGE KWON: We have some evidence from the internationals as
10 MS. GUSTAFSON: That's right. There is some evidence of this.
11 But the difference, Your Honour, would be that firing on the UN could
12 have a conceivable benefit of provoking international intervention, as
13 opposed to firing on just another civilian within a pattern of hundreds
14 of such events which would not have the same potential benefit of
15 possibly provoking an international intervention. So I think the motive
16 behind the two types of attacks would be very different.
17 JUDGE KWON: We may have passed this issue, but in addressing the
18 difficulty of waging war in an urban setting, the accused referred to an
19 example of mobile mortar. Do you consider there existed the mobile
20 mortar on the part of the ABiH? And if yes, what kind of reaction would
21 you expect on the part of the BSA side to respond to such attacks?
22 MS. GUSTAFSON: Yes, Your Honour. The -- there is evidence --
23 clear evidence, I believe, that the ABiH had a handful of mobile mortars,
24 and I refer, for example, to the evidence of Wilson and Dzambasovic, who
25 both acknowledged a handful of such weapons. And in terms of the SRK
1 response, in fact that evidence -- the example I referred to earlier,
2 where Wilson observed a few outgoing rounds of ABiH fire and a response
3 of 200 rounds scattered across a large urban area, a response he
4 described as entirely disproportionate, that was an example of a mobile
5 mortar. And the response, of course, reflects an intent not to target
6 that mobile mortar but to target civilian areas. And in that same
7 example I refer -- or that same passage, I referred to Richard Mole's
8 evidence and one of the observations he had was that the delay in the
9 response to outgoing fire indicated that there was limited possibility of
10 actually -- of the -- the unit still being in the same location, and that
11 would apply of course very strongly to mobile mortar rounds where the
12 mortar can be fired and then quickly moved out of position. So any
13 response with any kind of delay by the SRK would again reflect an intent
14 simply to target civilian areas.
15 And of course there are other methods of taking out a mobile
16 mortar crew, for example, sniping at them if they get into a line of
17 sight of SRK snipers, which of course would be a far more precise and
18 indeed effective means of responding to a mobile mortar attack.
19 JUDGE KWON: Thank you. Please continue.
20 MS. GUSTAFSON: I'd like to turn now to the Defence argument at
21 paragraphs 2163 to 2167 that Prosecution sniping expert van der Weijden
22 could not conclude for the scheduled incidents the exact location the
23 bullet was fired from and, therefore, according to the Defence, the
24 Prosecution's sniping case should be dismissed in its entirety. And the
25 Chamber has specifically asked the Prosecution to respond to this
2 Now, first, let me make clear the Defence has mis-characterised
3 van der Weijden's conclusions because for a number of incidents, for
4 example, F1, F3, F6, and F12, van der Weijden either concluded there was
5 only one possible origin of fire or drew conclusions that excluded any
6 reasonable possibility that the fire originated from ABiH-held territory
7 and I will be referring to a couple of examples, but I would also refer
8 to paragraphs 19, 27 to 29, 36, and 38 of appendix C of our brief where
9 that evidence is discussed. And of course in every case his conclusions
10 are consistent with fire originating from well-known SRK sniper
12 But more importantly, the Defence argument here is an example of
13 just the kind of mistaken analysis I just alluded to. The Defence is
14 improperly attempting to draw conclusions based on just one aspect of the
15 evidence. The Defence ignores the fact that van der Weijden's
16 conclusions form just part of the totality of evidence for each scheduled
17 incident, evidence we've summarised in appendix C of our brief, and
18 further ignores the many other factors pointing to SRK responsibility
19 that I have just outlined.
20 Now, if that satisfies the Chamber's question, I'd like to turn
21 now to discuss Defence arguments on the scheduled incidents themselves.
22 And in light of the limited time, I will address just a sample of these
23 arguments that I'd like to make clear that these samples exemplify the
24 unfounded claims and unreliable conclusions that permeate the Defence
25 arguments on the scheduled incidents. And I'll start with F1. This is
1 the 13 December 1992 attack on 3-year-old Anisa Pita while she was taking
2 off her shoes in front of her house. And as I indicated a moment ago,
3 van der Weijden concluded that Baba Stijene was the only possible origin
4 of the shot; that's P1521, page 16, and page 6995 to 6996 of the
5 transcript. The Defence challenges to this incident are centred on the
6 claim that there was no line of sight to Baba Stijena and they rely on
7 Poparic's line-of-sight analysis. That's paragraphs 2184 to 2185,
8 relying on D4884, paragraph 26 to 28. However, Poparic based his
9 line-of-sight analysis on a visit to the location in 2010, and he
10 conceded that by this time the house had been renovated and it was no
11 longer possible to stand or crouch in the precise location of the victim;
12 that's transcript page 39267.
13 His line-of-sight analysis is therefore fundamentally flawed.
14 The Defence claim at paragraph 2186 that "the most reasonable
15 inference" is that Anisa Pita was wounded in an exchange of fire is based
16 on Poparic's total speculation that because at one point the parents
17 reported hearing several shots, Anisa Pita was most probably struck by a
18 ricochetting bullet during an exchange of fire; that's D4884,
19 paragraph 31.
20 In paragraph 2187 the Defence also relies on the evidence of
21 Milos Skrba in asserting that the relevant brigade, the 1st Sarajevo
22 Mechanised Brigade had no sharpshooters throughout the war; that's D2344,
23 paragraph 11. Skrba's assertion is not only implausible, it is directly
24 contradicted by another Defence witness from Skrba's own battalion,
25 Maletic, who explained that the battalion had a sniper squad subordinated
1 to the commander; that's D2519, paragraph 31. In any event, Skrba
2 conceded all the underlying facts that allowed the SRK to shoot this
3 child. Namely, Baba Stijena was a fortified SRK position held by SRK
4 forces in possession of rifles, automatic, and semi-automatic weapons;
5 and that's 29189 to 29194.
6 So in summary this obviously civilian 3-year-old child was
7 targeted from a position with a clear line of sight which Defence
8 witnesses conceded was held by SRK forces with the necessary weapons to
9 shoot her.
10 I'd like to move now to F4. This is the 3rd of September, 1993,
11 shooting of Nafa Taric and her 8-year-old daughter.
12 The Defence claim at paragraph 2200 that there was no line of
13 sight from Ozrenska Street to the incident location is again based on
14 Poparic's report. However, Poparic relied on photos that he himself
15 admitted he had taken from the opposite side of the street from where the
16 victim was located at the time of the attack. That's D4884,
17 paragraph 56, and images 44 and 45. So Poparic's elaborate line-of-sight
18 analysis in paragraphs 56 to 59 based on these photos is fundamentally
19 flawed. In any event, the Defence acknowledges at paragraph 2204 that
20 Ivana Krndlja Street where the victims were shot is clearly visible -
21 those are the Defence's words - from the alleged firing positions citing
22 evidence including this photograph, D2431. The Defence claim at
23 paragraph 2204 that this location was not visible from 4th Company
24 positions is irrelevant, and that's because Defence witness and
25 4th Company member Slobodan Tuseveljak testified that this photo was
1 taken from positions held by the 2nd Company of the 2nd Battalion of the
2 1st Sarajevo Mechanised Brigade, a company positioned further down the
3 street from his 4th Company position; that's 29956 to 29957. And he was
4 describing this photograph, D2431 or 65 ter 23967.
5 And this comparison of D2431 with D666, a photograph on which
6 van der Weijden marked the location of the attack demonstrates that the
7 precise location of the attack was in fact plainly visible from that
8 2nd Company position.
9 And finally, the Defence assertion at paragraph 2202 that
10 van der Weijden concluded that Ozrenska Street was 1104 metres from the
11 incident site simply misrepresents van der Weijden's testimony which was
12 in fact that the distance from Ozrenska Street to the incident site was
13 825 metres. That's at page 7130 to 7131.
14 Moving on to F5, this is the 2nd of November, 1993, shooting of
15 Ramiza Kundo while carrying water. The Defence assertion that the
16 incident site was visible from the ABiH positions at paragraph 2210 again
17 is based on Poparic's assertion in his report. However, in
18 cross-examination, Poparic agreed that there were obstacles to both the
19 left and right of the victim's location as depicted in image 50 of his
20 own report, which we can see here. As you can see, there is a concrete
21 wall on the left side and a wall of earth plus a radio tower on the right
22 and thus a natural tunnel. And Poparic agreed that "any potential field
23 of fire is bounded by this tunnel, this natural tunnel." That's page
25 Nevertheless, in his report Poparic drew the potential field of
1 fire over these obstacles, and that is apparent from image 53 of his
2 report which we can see here. Now, as you can see, Poparic has depicted
3 a wide field of fire, roughly 60 degrees, a field which clearly ignores
4 the existence of the narrow natural tunnel which he himself conceded
5 limited the line of sight. And this omission allowed Poparic to stretch
6 that field of fire sufficiently far south, as you can see, to encompass
7 ABiH-held territory. When Poparic was confronted with this discrepancy
8 between the existence of the natural tunnel and the broad field of fire
9 he depicted here, Poparic said:
10 "Of course all of this should be taken as not being exactly
11 accurate, but there cannot be much deviation, if you will." That's
12 page 39233 to 39234.
13 The Defence argument is thus based on an admittedly unreliable
14 analysis and there is certainly no reason to doubt van der Weijden's
15 assessed field of fire and this exhibit, P6364, shows van der Weijden's
16 assessed field of fire for this incident, and that is the green triangle
17 in the upper image which is transposed over a field of fire identified by
18 Poparic. And the relevant page of van der Weijden's report is the image
19 below. So as you can see, there was, in fact, no line of sight from
20 ABiH-held territory to the south as contended by the Defence.
21 And van der Weijden also excluded the nearby territory to the
22 south-west of the incident site because the dip in the road limited the
23 view to positions further away; that's P1621, page 37.
24 And, finally, the Defence claim in paragraph 2210 that there was
25 no line of sight from SRK positions, which is based on paragraph 72 of
1 Poparic's report is contradicted by Poparic himself, who concede a line
2 of sight from SRK territory. And that is --
3 THE INTERPRETER: Could you please slow down. Thank you.
4 MS. GUSTAFSON: That's transcript page 38955 to 38956.
5 Moving on to F6, the shooting of Sanija Dzevlan as she cycled
6 home in Dobrinja just after emerging from behind a barrier protecting a
7 bridge. And this is another example where van der Weijden's conclusions
8 were such that the only reasonable possibility for the origin of sight --
9 or, sorry, the origin of fire was an SRK position. He concluded that
10 there was only one other building with a line of sight apart from the
11 Orthodox church, an ABiH-held apartment building 355 metres from the
12 attack location. However, he excluded this as a source of fire because
13 of the unlikelihood that ABiH troops there --
14 JUDGE KWON: Just a second.
15 There seems to be a problem with the French channel. We are
16 getting English. Thank you.
17 My apology to Judge Lattanzi. Shall we continue.
18 MS. GUSTAFSON: Thank you.
19 van der Weijden, as I was saying, excluded the ABiH-held
20 apartment building 355 metres away as a source of fire because of the
21 unlikelihood that the ABiH troops there would have focused on the bridge
22 with SRK troops stationed in the buildings directly across the street to
23 the east; that's P1621, page 50. He also eliminated the surrounding open
24 areas because of course the shooter would have been exposed to fire from
25 either side. That's page 7133.
1 The Defence assertion at paragraph 2217 that the bullet in this
2 case would have to have been fired 0.99 seconds before the victim
3 appeared from behind the barrier is based entirely on Poparic's
4 demonstrably unreliable guess-work. For instance, from this photo here
5 which is image 59 of his report, Poparic took the approximate length of
6 what he believed to be the car model visible here that he obtained from a
7 Wikipedia article in order to determine the approximate distance
8 Ms. Dzevlan travelled after emerging from behind the barrier and before
9 being shot. He then estimated the time it took Ms. Dzevlan to bike
10 across this alleged distance by relying on the purported average cycling
11 speed of a 35-year-old female according to an inaccessible forensic
12 examination of traffic accidents; that's D4884, paragraphs 79 and 88.
13 The Defence further claims at paragraph 2218 that van der Weijden
14 agreed to possibilities other than intentional targeting of civilians in
15 this case. This ignores van der Weijden's explanation that this is not
16 what he would conclude because Ms. Dzevlan would have been visible just
17 before getting on to the bridge which would have allowed her shooter to
18 anticipate her reappearance. That's page 7137 to 7138. And this fact
19 also renders Poparic's already-unreliable calculations on the timing of
20 the shot as compared to the victim's exit from behind the barrier
21 irrelevant, a point the Defence has entirely ignored.
22 And my last point on this incident, the Defence claim at
23 paragraph 2218 that van der Weijden agreed that the lack of evidence
24 regarding the bullet or calibre resulted in speculation about the origin
25 of fire is a complete mis-characterisation. van der Weijden only agreed
1 that he had to estimate the bullet calibre. He did not agree that this
2 resulted in any speculation about the origin of fire. That's page 7138
3 to 7139.
4 Should I continue, Your Honours, or do you wish to take a break?
5 JUDGE KWON: If it is convenient, we will take a break.
6 MS. GUSTAFSON: It is. Thank you.
7 JUDGE KWON: We will take a break for 20 minutes and resume at
9 --- Recess taken at 11.18 a.m.
10 --- On resuming at 11.40 a.m.
11 JUDGE KWON: Thank you.
12 Before you continue, I note you have another member from your
13 team. Mr. Tieger.
14 MR. TIEGER: Yes, Mr. President, and again as I indicated
15 earlier, Ms. Pack is now with us. She will be addressing the Court in
16 regard to Srebrenica relatively soon.
17 JUDGE KWON: Thank you.
18 Please continue, Ms. Gustafson.
19 MS. GUSTAFSON: Thank you, Your Honours.
20 I'd like to turn now to the sniping incidents that took place in
21 the Marin Dvor area. These are F8, F11, F12, F14, F15, and F16, and all
22 these attacks took place along the main thoroughfare of Zmaj od Bosne at
23 or near the S curve in the tram tracks and along the stretch of road
24 known at the time as sniper ally. And as we set out in our brief at
25 paragraphs 13 to 22, the evidence for these incidents overwhelmingly
1 demonstrates deliberate SRK attacks on civilians. SRK sniping from
2 Grbavica into Zmaj od Bosne was common knowledge at the time. And
3 on-site forensic investigations confirmed this. The Defence attempts to
4 undermine this evidence rest again on Poparic's efforts to second-guess
5 the contemporaneous findings through speculative and unsupported claims
6 and unscientific methodologies.
7 I'd like to focus on F11 which relates to one of the
8 Trial Chamber's questions. And the F11 attack was the second of three
9 similar machine-gun attacks that took place in the space of just a few
10 minutes in the same area on the 8th of October, 1994. Another tram was
11 hit by machine-gun fire immediately before the F11 attack, and a few
12 minutes after the attack a machine-gun opened fire on a group of
13 pedestrians in the same area.
14 Now, the Chamber has asked the Prosecution about a discrepancy
15 between adjudicated fact 2932 which states that "the shots came from the
16 direction of the Metaljka building" and P2421, a UN report indicating
17 that the shots originated from a group of houses near the Jewish
18 cemetery. I would like to address the theoretical question first which
19 is what should the Chamber do when the Prosecution's evidence contradicts
20 an adjudicated fact. And in that respect, the jurisprudence is clear
21 that judicially noticed facts are presumptions and it is ultimately up to
22 the Trial Chamber to assess their relevance and weight in light of the
23 evidence as a whole and I refer to the Karamera Appeals Chamber decision
24 of 16 June 2006, paragraph 42; the Popovic Trial Chamber decision of the
25 26th of September, 2006, at paragraph 21; and the Krajisnik Trial Chamber
1 decision of 24 March 2005 at paragraph 17.
2 In this instance, however, the Prosecution's position as we set
3 out in appendix C paragraph 18 of our brief is that the tram in F11 was
4 targeted from SRK-held positions to the south of the Miljacka river and
5 this is consistent with all the credible evidence in this case including
6 adjudicated fact 2932 and the UN report P2421.
7 And I'd like to refer in this respect to this visual aid which is
8 P6018. This is a photo taken from the south looking north at the
9 incident site. And here we have the same photo on which we have
10 indicated some locations to assist the Trial Chamber. Now, this incident
11 took place on Zmaj od Bosne at either the intersection with Franje Rackog
12 Street which is spot 2 in this visual aid or the intersection with
13 Djure Danicic Street, which is spot 1. Now, the spot numbers are for
14 convenience and they coincide with the UNPROFOR maps in the UNPROFOR
15 report of this very incident and indicate some of the positions of UN
16 observers at the time of the attack, and that's P2421 and the map is at
17 pages 4 to 5 of the French version.
18 The evidence of KDZ090, for example, P481, pages 6 to 9; P436;
19 and P437, and the local investigators' report, P1907, page 2, as well as
20 adjudicated fact 2924 and 2932 identify the location of the F11 attack as
21 spot 2 with the Metaljka building, which is also indicated here, as the
22 source of fire. And this conclusion was endorsed by van der Weijden;
23 that's P1629, pages 89 to 91.
24 P2421, the contemporaneous UNPROFOR report as well as the
25 identification of the location to Barry Hogan as indicated in P1028 for
1 the purpose of plotting the location of the attack on a map which is
2 P2191 identify the location of the attack as spot 1. So there is some
3 uncertainty as to the precise location of the attack in this instance, an
4 uncertainty that is understandable in light of the fact that the tram was
5 moving from east to west at the time of the attack, and I refer to
6 van der Weijden's evidence in this respect at 7175 to 7176.
7 The UNPROFOR conclusion that spot 1 was the location of the
8 attack is supported by the observations of UNPROFOR personnel at the
9 scene, that's P2421, pages 2 and 6, and its ballistics analysis. In
10 particular, UNPROFOR analysed fresh furrows located in the ground at spot
11 1 and that's reflected in P2421, pages 3 and 7. And these furrows all
12 pointed directly at house 14 near the Jewish cemetery, that's P2421,
13 pages 3 to 8 and we've indicated the rough location of that house on this
14 visual aid as well. The angle of entry of the bullets into the tram also
15 analysed by UNPROFOR when transposed to spot 1 also pointed to this
16 origin of fire, P2421, page 3.
17 van der Weijden did not exclude this scenario, namely, that the
18 tram was attacked at spot 1, in which case fire would have come from SRK
19 positions to the west of the Jewish cemetery, but he decided in favour of
20 spot 2 based on the time of exposure to fire of the tram and the possible
21 delay of witnesses to realising they were under fire, and of course the
22 tram in this case was moving from left to right, as you can -- in
23 relation to this visual aid.
24 So while there is some uncertainty in the evidence as to the
25 precise location of the origin of fire which corresponds to uncertainty
1 as to the precise location of the attack, the Trial Chamber need not make
2 a specific finding on this issue. And this is because regardless of
3 whether the attack took place at spot 1 or spot 2, the fire undoubtedly
4 originated from SRK positions to the south of the Miljacka and this is
5 because, first, both positions were exposed to notorious SRK sniping
6 positions, from spot 2, the Metaljka building; and from spot 1, houses
7 near the Jewish cemetery. And the alternative contention, that the fire
8 came instead from this small strip of ABiH-held territory between the
9 tram tracks and the river, is not a reasonable alternative. This would
10 require the gunner to have sprayed this tram with a machine-gun from a
11 position immediately across the street from the tram, in plain sight of
12 the passengers, as well as multiple UN personnel who were present and
13 monitoring sniping activity at the time. This highly implausible and
14 illogical notion is not supported by any credible evidence, and it was
15 explicitly rejected by van der Weijden. He explained that if the tram
16 had been fired at from ABiH territory to the south, the shooter would be
17 just 25 metres away, a "completely illogical" scenario, given the
18 well-known presence of the international press at the Holiday Inn, which
19 of course is the yellow building depicted here. That's page 7175.
20 Nevertheless, this is exactly the theory posited by Defence
21 expert Poparic, who claimed that the fire in all three attacks on this
22 day came from the Executive Council building shown here, and that's at
23 transcript page 39252.
24 Now, Poparic's theory is fatally flawed for a number of reasons.
25 First, according to Poparic, two trams and then a group of pedestrians
1 were successively fired on by a machine-gun repeatedly from a positions
2 immediately across the street from the trams, in plain sight of everyone
3 around, without anyone noticing. This repeated machine-gun fire would
4 also have to have been missed by multiple UN anti-sniping personnel who
5 were positioned right in front of the Executive Council building, among
6 other nearby locations, and monitoring sniping activity in the area.
7 That's P2421.
8 Further increasing the practically certain risk of detection, the
9 shooter would have to have been at ground level or a very low floor of
10 the building due to the very low, in fact 9-degree from horizontal
11 trajectory angle of the bullet into the tram. And this was UNPROFOR's
12 determination based on its physical examination of the bullet-hole
13 entries in the tram. That's P2421, page 4.
14 UNPROFOR's trajectory determination directly contradicts
15 Poparic's theory that the angle of descent of the bullets in this case
16 was very high, between 45 and 60 degrees, an analysis he based on the
17 shape of a dust cloud he saw in a video; that's 39252 to 39253. When
18 this contradiction was put to him, Poparic simply changed his theory on
19 the spot, asserting that "the angle could be anywhere from 2 to 80
20 degrees." That's page 39261 to 39263. And Poparic's theory has no
21 explanation for the flesh bullet furrows the UN found in its
22 investigation at spot 1 after the shooting of the pedestrians, which
23 pointed back to the SRK position in house 14. Poparic took none of this
24 into account in his report, instead drawing unfounded conclusions from
25 dust cloud shapes and alleged gestures by UN personnel that he saw in a
1 video without having listened to the audio. And I refer to our final
2 brief, appendix C, paragraph 11, where we have discussed his theory.
3 The Defence theory here is just a slightly refined version of the
4 original conspiracy theory advanced by Mladic to UN officials in response
5 to their protest immediately after this event. Mladic's claim that the
6 fire came from the Holiday Inn, pictured here, which was on the opposite
7 side of the tram and therefore completely impossible as a source of fire
8 was debunked on the spot by the UN, and that's reflected in P867, page 2.
9 Having now had 20-odd years to think about it, the Defence's
10 Executive Council building theory is no better. The only reasonable
11 conclusion is that the tram in this incident was fired on from SRK-held
12 territory to the south of the Miljacka. And it's worth noting here that
13 for other tram attacks in this area, the Defence has put forward
14 similarly implausible theories involving fire originating from
15 immediately adjacent buildings.
16 For example, in F8 the Defence contends the tram again was fired
17 on from the Executive Council building; that's D4884, paragraphs 123 to
18 124. For F15, the Defence claims the tram was sprayed with machine-gun
19 fire from the roof of the Museum of Revolution which is across the street
20 and to the left of the Holiday Inn or some other unspecified "nearby
21 building." That's page 39281 to 39282. Or F16, where the Defence
22 contends that multiple bullets were fired on the tram from the
23 Executive Council building or the museum; that's page 38931.
24 So according to the Defence, ABiH members were repeatedly gunning
25 down members of their own population right in front of their eyes as well
1 as the world press and the UN. And as we've pointed out in the
2 discussion of these incidents in our brief, these theories are wholly
3 contradicted by the actual evidence, including, for example, on-site
4 investigation results, forensic analyses, and eye-witness accounts.
5 These repeated untenable Defence theories simply underscore the strength
6 of the evidence pointing to SRK responsibility for these attacks.
7 I'd like to move on now to the scheduled shelling incidents.
8 Earlier I discussed the fact that the Defence version of the campaign
9 cannot account for the SRK's massive indiscriminate bombardments of the
10 city. For the two such bombardments that are scheduled incidents G1 and
11 G2, this is played out in the form of unfounded procedural arguments.
12 For G1, the Defence unbelievably continues to insist that this incident
13 is not the heavy shelling of Sarajevo from on or about the 28th of May,
14 but a single mortar incident of Vase Miskin Street on the
15 27th of May, 1992. This claim is directly contradicted by the wording of
16 the indictment and made in the face of repeated notifications by the
17 Prosecution and the Trial Chamber that the Vase Miskin incident is not
18 G1, not to mention the accused's own express acknowledgement that the
19 Vase Miskin Street incident is not in the indictment. I refer to
20 page 6394 and 28867 of the transcript. The real G1 which
21 Slobodan Milosevic termed a bloody criminal bombardment consisted of
22 heavy indiscriminate shelling throughout the city, personally commanded
23 by General Mladic with Karadzic's support. That's -- in our final brief
24 we've discussed that at paragraph 727.
25 The Defence also relies on Mladic's contemporaneous denial of the
1 authenticity of intercepts capturing him ordering subordinates to open
2 fire on civilian areas of Sarajevo on the 28th and 29th of May; that's
3 D207 relied on at paragraphs 1995 and 1996.
4 Mladic's self-serving claim that these intercepts were fabricated
5 by "pantomime performers" who could imitate "your voice, my voice, and
6 anyone's voice," made in a conversation which Mladic must have known was
7 being intercepted is obviously disingenuous. All three intercepts have
8 been reliably authenticated. That's confidential Exhibit P1154, pages 69
9 to 73.
10 For G2 --
11 JUDGE KWON: Before moving further, I have a question about this
12 G1, but before getting to that, could we upload that visual aid again.
13 A brief question for the Defence. The Defence final brief refers
14 to an MIS building. Does it mean the red facade building we referred to?
15 I'm asking because we never heard about MIS building.
16 THE ACCUSED: [Interpretation] Your Excellencies, is it F or G?
17 I'm a bit confused. I need to consult. This is the F incident, isn't
19 JUDGE KWON: Yes, sniping incident, MIS building. You can come
20 back later on.
21 Going back to F11 incident, Ms. Gustafson. So is your case that
22 on the part of the Prosecution it cannot identify the source of fire in
23 this case?
24 MS. GUSTAFSON: That's correct, Your Honour. We cannot identify
25 the precise source of fire because of the conflicting evidence about
1 where the precise location of the attack was, but as I've explained this
2 doesn't translate into any failure of proof.
3 JUDGE KWON: And the UN report which is P2421, I remember that
4 somewhere in the report said that UN thought at the time the fire -- not
5 thought. They stated the fire was loud and came from very close, whether
6 you could address that issue as well.
7 MS. GUSTAFSON: Yes, Your Honour. The -- I mean, it's unclear
8 exactly what UNPROFOR meant by "very close," but my recollection is that
9 the position they ultimately concluded was the source of fire was
10 somewhere in the order of 600 metres away so that could easily be
11 considered in the context of this case to be "very close."
12 JUDGE KWON: Thank you.
13 For my question related to G1, shall we move into private session
15 [Private session]
21 [Open session]
22 JUDGE KWON: Yes, please continue.
23 MS. GUSTAFSON: This brings me to G2. Now, at the very last
24 stage of this five-year trial, the accused is for the first time arguing
25 in his brief that incident G2 is also insufficiently precise for him to
1 effectively respond. His challenge to indictment is years out of time
2 with no explanation for the failure to raise it previously. And the
3 burden is therefore on the accused to show actual prejudice. And I refer
4 in this regard to the authorities we've cited in our
5 September 11th, 2014, response to a similar series of late indictment
7 The accused's argument at paragraph 1998 that the indictment
8 fails to make specific reference, both temporally and geographically --
9 JUDGE KWON: Just a second. Sorry to intervene. Has our
10 decision not been filed yet on this defect of indictment?
11 MR. ROBINSON: We received it just maybe at the beginning of this
13 JUDGE KWON: Very well. Thank you.
14 Please continue.
15 MS. GUSTAFSON: The accused's argument at paragraph 1998 that the
16 indictment fails to make specific reference, both temporally and
17 geographically is specious because both date from on or about 6 June 1992
18 and location, a massive bombardment of the city, are specified.
19 In none of the accused's many motions challenging the indictment,
20 including the one just a few weeks ago, has the accused raised this
21 issue, indicating that he never considered it to be unclear. In fact,
22 his own brief indicates that he does in fact understand this charge
23 because he has offered a defence. In particular, he claims that combat
24 operations on the 6th of June were directed at repelling ABiH attacks;
25 that's at paragraph 2001.
1 However, even accepting the existence of some combat in the
2 Sarajevo area on 6 June, this cannot account for the wild, scattered,
3 artillery attacks across the city, massive night-time shelling of the
4 city when few, if any, military targets would be visible, and the fact
5 that the shelling mainly hit parts of the city with no apparent military
6 targets and resulted in many civilian casualties. And I refer to the
7 evidence described in our brief at paragraphs 728 and 729.
8 Which brings me to G4, this is the 1st of June, 1993, mortar
9 attack on a crowd of 200 people watching a football match in Dobrinja.
10 The Defence in paragraphs 2002 to 2008 relies entirely on Subotic's
11 evidence in claiming that only one shell, not two, was fired in this
12 incident and it was fired from the ABiH side of the confrontation line.
13 Now, Subotic conceded that if a shell had been fired by the ABiH in this
14 instance, it would have been fired from a maximum distance of 200 metres,
15 in front of an apartment block in a residential area. This is not even a
16 remotely reasonable alternative.
17 First, it is inconceivable that the ABiH managed to fire two
18 mortar shells on its own people from a distance of no more than 200
19 metres in a densely populated area on a bright, sunny day when a large
20 group of civilians had gathered to watch a football match without
21 detection. Moreover, firing at such a close range and consequently with
22 a very steep firing angle results in the risk as Defence witness Allsop
23 put it that the shell could fall back down on top of you; that's page
24 29434. And Hammill explained that the danger radius of an 81-millimetre
25 mortar is 250 metres.
1 Further, the Defence claim at paragraph 2007 that the shell could
2 not have been fired from VRS positions. Now, this rests on Subotic's
3 demonstrably unreliable analysis. For instance, she claimed based on her
4 personal examination of a 17-year-old crater with no embedded stabiliser
5 of course that "there is no room for doubt that the angle of descent was
6 greater than 65 degrees." That's D3542, paragraph 44.
7 Now, this assertion is contradicted by Subotic's own testimony
8 because in another context, she explained that only if the "crater is a
9 good one" can one "very approximately" determine angle of descent.
10 That's page 38360. And although a contemporaneous UN report clearly
11 recorded two craters at the scene, that's P1053, page 9, the Defence
12 insists this is not the case and relies on Subotic's bizarre claim that
13 two and a half years after this attack someone inexplicably carved a
14 second crater into the asphalt by hand; that's paragraph 2005 relying on
15 D3542, paragraph 38.
16 In summary, the Defence theory rests on an obviously unreliable
17 analysis and entails the highly unlikely prospect that an ABiH mortar
18 crew engaged in a potential suicide mission in order to fire on its own
19 population from an immediately adjacent position without detection.
20 And moving on now to G7, this is the 4th of February, 1994,
21 attack where three mortar shells landed amongst a group of civilians
22 queuing for humanitarian aid in Dobrinja.
23 In this case, ballistics experts contemporaneously analysed the
24 craters, utilising established methodologies and determined that the
25 shells originated from SRK territory to the east.
1 The Defence argues, again based on Subotic's analysis, that this
2 assessment was hugely erroneous, off by roughly 90 degrees, and the
3 shells were instead fired from ABiH territory to the north. And that's
4 at D3542, paragraphs 86 to 87.
5 When Subotic conducted her analysis in 2010, there were no longer
6 remains of any of the craters and only poor-quality photos and videos
7 available. Faced with this, she simply discarded all accepted
8 methodologies and engaged in a fantastical tour through the evidence.
9 For example, she assumed from this photo which is P1710, page 23,
10 reproduced in figure 65 of her report that the darkened patch of the
11 playground seen in the lower left part of the screen in the corner of the
12 playground was, in fact, a patch of soil. She then further assumed based
13 on this and similar photos that this soil must have been thrown on to the
14 playground by a shell impact. To this she added a string of assumptions,
15 including that the soil had been previously hard packed and therefore
16 that an earlier shell must have impacted nearby in order to loosen this
17 soil to enable it to have been thrown on to the playground by the
18 subsequent shell. She then claimed that she could determine the
19 direction of fire of the shell that supposedly caused these alleged soil
20 traces by examining the orientation of the soil on this photograph.
21 Based on this soil analysis, she concluded that the shell had flown in
22 from ABiH territory and therefore the investigators must have covered up
23 the existence of one of these two shells. That's at D3542, paragraphs 80
24 to 81.
25 For the shell that landed on the other side of the playground,
1 the investigators at the scene observed that the stabiliser was embedded
2 in an east-west direction, corroborating the direction of fire they
3 determined through their crater analysis, that's P1710, page 9. That
4 stabiliser which is depicted here and we've circled it for ease of
5 reference which is figure 78 of D3542, according to the Defence at
6 paragraph 2044, based on Subotic's theory, even though this stabiliser
7 was embedded in an east-west direction, that the shell nevertheless flew
8 in from the north. In Subotic's opinion "the stabiliser had already hit
9 the surface, ricochetted, and found itself in this place." That's
10 page 38276 of the transcript.
11 In other words, she made the completely impossible claim that
12 this shell flew in from the east, ricochetted, and then when it was
13 travelling at a reduced speed as a result of the ricochet, managed to
14 somehow orient itself back towards the ground and firmly embed itself
15 into the asphalt facing east-west -- sorry, she made the completely
16 impossible claim that the shell flew in from the north and then
17 ultimately after a ricochet embedded itself in the asphalt facing west.
18 And to top it all off, she claimed that this video still image of
19 another of the stabilisers, this is the one back the other side of the
20 playground, reveals the Latin letter N in aerial font on the back of the
21 stabiliser. That's D3542, paragraph 89. When Subotic was shown a
22 comparison of this video still with a far better quality photograph the
23 investigators took of the stabiliser depicted here in P6324, she agreed
24 that there was no letter N visible in the photograph but she refused to
25 admit that the photograph on the right here was clearer and she refused
1 to retract her letter N theory, a theory the Defence persists in positing
2 in paragraph 2045 of its brief.
3 For this incident the Defence has replaced established scientific
4 methodologies with a cover-up theory, a magically propelled stabiliser
5 and an image conjured out of thin air.
6 Moving on to G8, this is the 5th of February, 1994, Markale
7 massacre. Local and UN investigators determined that the shell was fired
8 on a bearing of about 18 plus or minus 5 degrees. And Zecevic's team of
9 ballistics experts measured a 60 plus or minus 5 degree angle of descent.
10 Based on the depth of the embedded stabiliser, Zecevic excluded
11 the possibility of one to three charges and therefore concluded that the
12 firing range was between 4.500 to 6.500 metres well beyond the
13 confrontation line 2600 metres away. And this conclusion is corroborated
14 by other evidence set out at paragraph 59 of appendix C of our brief.
15 The Defence makes two main challenges to these findings. First,
16 according to the Defence, the distance to the firing location could not
17 be established because the disturbed crater did not allow for a precise
18 angle of descent measurement. And second, the Defence contends that one
19 cannot determine where the mortar was fired from by the fact of the
20 embedded stabiliser; that's paragraph 2096 of its brief. In an effort to
21 undermine Zecevic's angle of descent calculation, the Defence relies on
22 Allsop's evidence that the angle of imbedded stabiliser was not
23 necessarily the angle of the trajectory at the time of impact. The
24 Defence ignores, however, that Allsop ultimately confirmed the
25 reliability of Zecevic's angle of descent calculation. At page 29508 of
1 the transcript, after Allsop agreed that the angle of descent must have
2 fallen with a 35-degree range between 50 and 85 degrees he was asked:
3 "Now, Dr. Zecevic, in the evidence which he provided to the
4 Chamber has included a margin of error of 10 degrees out of a possible
5 range that you've identified of 35 degrees. So he's approaching a margin
6 of error of around -- I'm trying to do the calculation. It's certainly
7 around 35 per cent. Do you accept that?
8 "A. Yes.
9 "Q. Now, that is a fairly generous margin of error. Can we
10 agree on that?
11 "A. Yes.
12 "Q. Now, even if one were to accept any of the issues which
13 you've raised in your report, I put it to you that the possible impact on
14 the trajectory of the projectile caused by any of those issues during
15 those 50 centimetres that it travelled at high speed before being
16 launched into the ground was more than adequately taken into account by a
17 margin of error of over 33 per cent?
18 "A. Yes."
19 The Defence's own expert, having confirmed the reliability of
20 Zecevic's 55 to 65 degree angle of descent calculation, the Defence is
21 left to contest Zecevic's velocity calculation based on the depth of the
22 embedded stabiliser. And again the Defence relies on Allsop's report
23 while ignoring that Allsop agreed that several of his theoretical
24 objections may not apply in this case. And we've set those out at
25 appendix C, paragraph 60. But in any event, Defence expert Subotic
1 opined that the fact of an embedded stabiliser means the shell must have
2 been fired with at least three charges; that's transcript page 38456.
3 And Zecevic also explained that with charge three a stabiliser may or may
4 not become embedded, but if the stabiliser is embedded, this implies a
5 minimum of three charges; that's transcript page 12174 to 12175.
6 So if we take the evidence at its most favourable for the Defence
7 based on the admissions of its own expert witnesses, therefore assuming a
8 possible launch with three rather than four charges, and the maximum
9 angle of descent of 65 degrees, which of course translates into the
10 closest possible firing distance, the corresponding distance would be
11 approximately 3600 metres, that's P2317, page 6, still well within SRK
13 In its brief at paragraphs 2091 to 2092, the Defence basks in the
14 Prosecution's failure to point to any lack of neutrality or impartiality
15 on Allsop's part. The Defence has entirely missed the point. Allsop
16 confirmed Zecevic's key conclusion on angle of descent.
17 The only other Defence option here is a conspiracy theory
18 involving a mortar shell placed at a predetermined angle on a stand in a
19 busy market-place, a static explosion, a staged incident scene with
20 planted corpses, and a stabiliser manually embedded in the Tarmac with a
21 spade. We've addressed this theory at paragraph 45 of appendix C of our
22 brief. Moving on now to G9, the 22nd of December, 1994, attack where two
23 76-millmetre artillery shells hit a flee market in Bascarsija.
24 And again the Defence's primary theory set out at paragraphs 2119
25 to 2121 is that this attack was entirely staged. This theory would
1 require the Court to accept that Bosnian authorities managed to place an
2 artillery shell and a pile of TNT in a busy market-place and detonate
3 them both remotely without detection. Then during the two hours and
4 40 minutes when the investigators were on scene, and that's D554, page 2,
5 they managed to stage an elaborate cover-up which included manually
6 excavating a crater in the asphalt; that's paragraph 2120.
7 And this was supposedly all done in front of seven UN officials
8 who were present during the investigation, that's D554, page 2; and
9 P1276, paragraph 47, who apparently did not notice.
10 The Defence has also made a contradictory claim for this incident
11 that it has not been established that the source of fire was the Bosnian
12 Serb side rather than the Bosnian Muslim side of the confrontation line,
13 that's paragraph 2122, and they rely here on conclusions in other cases.
14 The evidence in this case shows that these shells were fired from
15 a B-1, 76-millimetre gun from the Trebevic/Vidikovac area in SRK
16 territory. This was the conclusion reached by investigators at the time,
17 based not only on their ballistics analysis but on the fact that several
18 people heard the shells being fired from the Vidikovac/Trebevic area, and
19 that's in D554.
20 Moreover, the VRS held firing positions in Vidikovac throughout
21 the war. That evidence is in appendix C, paragraph 61 of our brief. The
22 SRK was in possession of at least 14, 76-millimetre B-1 guns in the
23 Sarajevo ara, that's in P5056, including one in the Hresa/Vidikovac area
24 and several at nearby Lukavica; that's P1021. Meanwhile, D779, a March
25 1995 SRK order indicates that the ABiH 1st Corps, the entire corps has
1 only one B-1, 76-millimetre gun located in the area of Bijela Ljeska.
2 And this SRK map P1021 identified that gun's location. On the left is
3 the zoomed-in portion of the map, on the right of the map entirely. And
4 you see the letter T-76. "T" of course stands for "top" or "gun" in
5 B/C/S, so this is clearly a reference to a 76-millimetre gun. And on the
6 right-hand side image, it's clear this gun was far to the south-west of
7 Sarajevo and outside the encircled city, inaccessible to ABiH forces
8 inside Sarajevo.
9 This is further corroborated by P5968, a January 1994 SRK attack
10 order identifying known ABiH artillery pieces in Sarajevo, that does not
11 list a single B-1, 76-millimetre gun.
12 There isn't a shred of credible evidence pointing to ABiH
13 responsibility in this case. All the evidence relevant to the attack in
14 addition to the evidence of a consistent pattern of similar SRK attacks
15 points to SRK responsibility.
16 Which brings me to G19, the 28th of August, 1995, Markale
17 massacre. Now, for this attack, contrary to Defence contentions, the
18 evidence clearly excludes the possibility that the shell was fired from
19 the ABiH side of the confrontation line. UNMOs at a nearby observation
20 point, OP1, neither saw nor heard any firing activity within ABiH
21 territory. And if it had been fired from Bosnian lines, it certainly
22 would have been heard by OP1; that's Konings P1953, paragraphs 23, 90,
23 and 91. For Konings, Smith, Turkusic and Higgs, OP1's observations
24 implied that the origin of fire was SRK territory. I refer to
25 paragraph 65 of appendix C of our brief.
1 The Defence's own expert Subotic agreed that the fact that the
2 UNMOs did not hear or record the outgoing mortar shell "ruled out" the
3 possibility that the shell was fired from ABiH territory; that's D3551,
4 paragraphs 111, and 114(e).
5 Moreover, while the Defence at paragraph 2148 relies on
6 Demurenko's claim to have personally explored "thousands of square metres
7 across the entire slope" of Mount Trebevic and found no possible SRK
8 mortar position, even Demurenko did not think this was a plausible claim.
9 And I refer to his evidence at page 28928.
10 The alternative Defence theory is another staged static explosion
11 based on another set of Subotic's typically unfounded conclusions. For
12 example, the Defence claim at paragraphs 2140 to 2141 that in fact
13 multiple stabilisers were recovered from the scene rests largely on
14 Subotic's comparison of image -- images showing different orientations of
15 the stabiliser's primer from which she concluded that these were
16 extremely similar but in fact different stabilisers; that's D3551,
17 paragraph 103. And this visual, figure 108 of her report, shows her
18 comparison of these primer orientations.
19 However, when Subotic was actually handed the stabiliser in
20 court, she agreed that she could actually freely move the primer with her
21 own fingers; that's transcript page 38574 and 38579. Did she then
22 concede that her theory of multiple, nearly identity stabilisers were
23 recovered from the scene was unfounded? No. On the spot she created yet
24 another conspiracy theory to cover up her first conspiracy theory
25 insisting that it was "certain" that after the fact "somebody
1 deliberately screwed and unscrewed the ring." That's page 38592 to
3 And at paragraph 2127 the Defence also adopts Subotic's
4 conclusion, falling far outside even her alleged expertise that there is
5 insufficient blood beneath the body of the victim depicted here to match
6 the size of his wound; that's D3551, figure 89. Another neither the
7 Defence in its brief nor Subotic in her report explained the theory
8 behind such claims, Karadzic himself in his cross-examination of
9 Mr. Turkusic on these images explained his position. Karadzic contended
10 that most of these bodies were old corpses dumped at the scene "just set
11 there to frame this explosion." That's page 9093 to 9096.
12 So the Defence is clearly contending that in the aftermath of
13 this explosion Bosnian authorities managed to transplant dozens of
14 previously collected and stored dead bodies with wounds roughly
15 consistent with mortar explosion injuries to the scene of this explosion
16 and plant them in the midst of the existing carnage in front of dozens of
17 witnesses without detection. As Mr. Turkusic said when this theory was
18 put to him by Karadzic, this kind of "speculation" is "the only thing
19 that could possibly be more monstrous than this scene itself." That's
20 page 9096.
21 Moving on now to the modified air bombs incidents. As we
22 described in our brief during the latter stages of the campaign, the SRK
23 began launching modified air bombs into the city. These highly
24 inaccurate, highly destructive weapons were employed to terrorise the
25 civilian population. I refer to paragraphs 772 to 776 of our brief.
1 The Defence claim at paragraph 2389 that the Prosecution failed
2 to cross-examine Subotic on the scheduled air bomb incidents and instead
3 engaged in "futile theoretical discussions" misses the point entirely.
4 The Prosecution put to Subotic that for each of the scheduled incidents
5 her "most probably target" analysis consisted of seeing where the target
6 landed -- sorry, seeing where the projectile landed and then identifying
7 a nearby supposed military object. Subotic confirmed this. She
8 explained that she had not been provided with any VRS documents
9 supporting her most probable target analysis, an analysis which "had
10 nothing to do with the military doctrine or anything like that." She had
11 identified these alleged targets because "all of them were either on the
12 incoming trajectory or close to the incoming trajectory of the
13 projectile. That's page 38533 to 38535.
14 This questioning revealed that there was no independent factual
15 basis for Subotic's most probably targets. It also exposed her analysis
16 of the accuracy of air bombs as circular because she based that analysis
17 largely on the distance between the impact point and her alleged most
18 probably target; that's D3540, paragraph 151. In other words, Subotic
19 identified the closest possible object to the air bomb impact that she
20 could reasonably contend had any kind of military use, then she asserted
21 that this was in fact the intended target of the air bomb. Then she
22 concluded that air bombs were precise because they landed so close to
23 these objects, objects she had identified in the first place because they
24 were so close to the impact. In its brief, the Defence clings to this
25 circular methodology, for example, at paragraph 2382, while failing to
1 explain how two imprecise weapons, unguided rockets and air bombs, were
2 allegedly made far more precise when fused together in an improvised
4 And the Defence has not engaged at all with the multiple reasons
5 modified air bombs were even less accurate than the underlying weapons,
6 reasons we have set out in our brief at paragraph 708. And the Defence
7 ignores admissions to that effect from its own witnesses, such as
8 Veljovic, who admitted that modified air bombs could be off target by
9 huge margins and were therefore impermissible for use in urban areas
10 "because there was a risk that we might actually hit our own men or
11 civilians." That's page 29269 to 29270. Or Demurenko who said in an
12 interview that modified air bombs were a weapon strapped together and
13 launched "wherever God may send it." P5925, page 3.
14 And the Defence ignores contemporaneous confirmation of their
15 inaccuracy by the SRK reflected by P1310, an SRK report explaining that a
16 modified air bomb launch had been aborted due to the risk of hitting SRK
17 troops who were half a kilometre away from the target.
18 Defence arguments about testing or checking the underlying
19 components of modified air bombs, for example, at paragraphs 2349, 2354,
20 and 2385, are irrelevant. The issue is that modified air bombs were an
21 improvised and untested combination of already imprecise components.
22 And the Defence assertion that modified air bombs themselves were
23 actually tested, paragraph 2350, is based largely on the vague,
24 self-serving testimony of Dragomir Milosevic, who, in any event, offered
25 no indication as to the nature of any alleged testing. That's 32771 to
2 And even if such evidence is taken at face value, it does not
3 even approach the seven to eight years of testing the Defence witness
4 Andjelkovic-Lukic confirmed would be required for a new weapons system.
5 That's 31494.
6 The Defence claim at paragraph 2357 to 2358 that the ABiH used
7 modified air bombs is based on vague, unsubstantiated claims by
8 self-interested SRK officers, which is not even remotely linked to any
9 scheduled or unscheduled modified air bomb incidents.
10 The Defence has ignored the extensive Prosecution evidence that
11 the ABiH did not have or use modified air bombs in Sarajevo, at
12 paragraph 705 of our brief. And the Defence has explicitly acknowledged
13 that the SRK fired the air bombs for G10, G11, and G12 in its brief.
14 The Defence claims that in using modified air bombs "it was not
15 the intention of the SRK units nor the corps command to terrorise
16 civilians," at paragraph 2356, is a deflection. The indictment
17 principally alleges that Karadzic and other pleaded JCE members had the
18 specific intent to spread terror, not the entire SRK.
19 But regardless, the only possible purpose of deploying modified
20 air bombs in Sarajevo was to terrorise the civilian population, as
21 reflected by UNPROFOR's contemporaneous assessment that these were
22 "highly inaccurate, indiscriminate, highly destructive weapons of
23 terror." That's P896.
24 Absent any questions, Your Honours, that concludes my
1 JUDGE KWON: Thank you. We'll have a break for an hour and
2 resume at 1.40.
3 --- Luncheon recess taken at 12.41 p.m.
4 --- On resuming at 1.45 p.m.
5 JUDGE KWON: Mr. Tieger, I was informed that Prosecution has
6 spent seven hours and 35 minutes so far, thus remaining time would be
7 about two hours and 25 minutes. Do you think you can finish the closing
8 argument within that time-period if we extend a bit more for the day --
9 MR. TIEGER: Yes, Mr. President, I do. Within that 2.25, we do
10 think so.
11 JUDGE KWON: So I propose to sit one hour, 15 minutes each for
12 the remaining sessions, thereby extending the sitting in total about half
13 an hour.
14 Yes, Ms. Pack, you have the floor.
15 MS. PACK: Good afternoon, Mr. President, Your Honours. I'm
16 going to address you on the joint criminal enterprise to eliminate the
17 Bosnian Muslim population in Srebrenica.
18 Your Honours, Karadzic bears criminal responsibility for the
19 murders of over 7.000 Bosnian Muslim men and boys and the serious harm
20 suffered by thousands of Bosnian Muslim men, women, and children.
21 Karadzic bears criminal responsibility for genocide.
22 By the night of 11 July 1995, he and Mladic were setting up the
23 structures and means to implement their aim, to eliminate and destroy the
24 Bosnian Muslim population in Srebrenica. Over 7.000 Muslim men and boys
25 were summarily executed in four days and the rest of the population,
1 women, young children, and elderly men, forcibly removed from the
2 Srebrenica enclave in two days. These operations were deliberate. They
3 were calculated, well organised.
4 Your Honours, in his brief and during this trial, Karadzic has
5 attempted to belittle the power and influence he exercised in July 1995.
6 But the truth is he was president and supreme commander of the armed
7 forces. He oversaw the Srebrenica operations. He directed the
8 Srebrenica operations. And he authorised and approved every significant
9 step along the way. He had authority and control over every institution
10 of state involved in the murders and the forcible removal of everyone
11 else. He had authority and control over the army, the police, and the
12 local civilian authorities. They reported to him throughout the
13 Srebrenica operations. He was kept informed throughout the Srebrenica
14 operations. His authority ensured they co-operated and co-ordinated
15 their actions. His authority ensured that no one ever investigated the
16 murders during his reign in power, that the crimes were covered up, the
17 bodies reburied, and the international community kept out until it was
18 too late.
19 Karadzic's defence is that he didn't know anything and therefore
20 he didn't intend anything. He says the plan to kill only emerged on
21 13 July after the murders at Kravica warehouse. Then he blames Beara,
22 Mladic, and the VRS Main Staff. Your Honours, Beara and Mladic's
23 guilt - and they are guilty - does not exculpate Karadzic.
24 Your Honours, first I'm going to address Karadzic's claims that
25 he didn't know or intend anything. In so doing, I will discuss some of
1 his significant contributions to the joint criminal enterprise to
2 eliminate. This is also evidence from which you can infer his criminal
3 intent. And, Your Honours, I refer you to the Prosecution brief,
4 paragraphs 876 to 1069 in which we set out all of Karadzic's significant
5 contributions to the joint criminal enterprise to eliminate the
6 Bosnian Muslims in Srebrenica and paragraphs 1096 to 1100 where we
7 addressed his genocidal intent. Second, I'll deal with three incredible
8 claims made by the Defence, that Karadzic's conduct was exemplary, that
9 he didn't know about the mass executions until years after the war, that
10 there was no plan to kill the Muslim men and boys until after the murders
11 at Kravica warehouse. Third, I'll address the arguments about the
12 numbers of Muslim men who were murdered. Fourth, as requested by the
13 Chamber, I will deal with the interplay between the overarching JCE and
14 the JCE to eliminate. Fifth, some of Karadzic's arguments on the count
15 of forcible transfer in relation to Srebrenica. And, finally, I will
16 come back to the count of genocide related to Srebrenica.
17 Your Honours, first let me go back to before 1995. Karadzic had
18 long sought the removal of the Bosnian Muslim population from the
19 Srebrenica area. We see that in directive 4 which Karadzic approved. I
20 refer you to the Prosecution brief at paragraphs 414 to 419 and the
21 appendix A, the Podrinje summary, paragraphs 2 to 3.
22 By directive 7 Karadzic ordered a sustained attack upon the
23 civilian population of the Srebrenica enclave through deprivation and
24 fear and the disablement of their UN protectors; that's the Podrinje
25 summary, paragraphs 21 to 29.
1 On the 28th of May, 1995, Karadzic ordered Mladic to prepare to
2 seize the Srebrenica enclave, then he approved a full-scale military
3 attack. On 8th July he ordered Krstic to go "full steam ahead." That's
4 P4484. And on 9 July he ordered the attack and take-over of Srebrenica
5 town itself. That's P2276.
6 Karadzic intended to force the Bosnian Muslim population out of
7 the Srebrenica enclave. On the afternoon of 11 July, as the army entered
8 Srebrenica, Gvero, a Main Staff officer, called Karadzic twice to report.
10 "Everything is going according to plan and do not worry." That's
12 Then 20 minutes later:
13 "Mr. President, Serbian silver, Serbian church, and Serbian
14 flag." That's P4630.
15 Gvero was reporting there was a Serbian flag flying in
16 Srebrenica. Karadzic knew the moment Srebrenica fell. That's the
17 Prosecution brief paragraphs 887 to 891. That night he and Mladic were
18 setting up the structures and means to implement a new common plan in
19 relation to Srebrenica, the joint criminal enterprise to eliminate the
20 Bosnian Muslims in Srebrenica by killing all the men and boys and
21 forcibly removing the remaining population.
22 With this aim, Karadzic's long-standing intent to remove the
23 Bosnian Muslim population evolved. The Muslim men were to be marked out,
24 separated from their families, and executed. Karadzic intended to kill
25 them. Karadzic intended to destroy the Bosnian Muslim population in
1 Srebrenica. That intent, his genocidal intent, may be inferred from his
2 actions and his words, his authority and control over everyone involved
3 in the Srebrenica operations, his approval and authorisation of his
4 subordinates' actions at every significant turn, his significant
5 contributions to the joint criminal enterprise to eliminate the
6 Bosnian Muslim population in Srebrenica.
7 Karadzic directed the Srebrenica operations, and on 13 July he
8 ordered that Bosnian Muslim men be moved from Bratunac to Zvornik, where
9 they were murdered out of sight. That's the Prosecution brief paragraphs
10 959 to 966.
11 Your Honours, on 12 July in Potocari, the harrowing separation of
12 Muslim men and boys from their family members began. These separations
13 were an intrinsic part of the murder and forcible transfer operations,
14 but I'll come back to this.
15 On 13 July, Karadzic spoke to Mladic by telephone sometime
16 between 5.00 and 6.40 p.m. The call was witnessed and photographed.
17 Mladic was in the field. He reported that Srebrenica was done. He was
18 reporting to Karadzic that the forcible removal operation was done. It
19 was. The report was accurate. They talked about promoting Krstic and
20 Krstic was promoted just before 8.00 that night to commander of the
21 Drina Corps. Karadzic issued a decree on the following day. That's the
22 Prosecution brief paragraphs 949 to 954.
23 Earlier in the afternoon, 3.50, Karadzic had met with
24 Tomislav Kovac, his acting or deputy minister of the interior and
25 commander of the police forces command staff. I refer to the Prosecution
1 brief paragraphs 941 to 8. It was a 20-minute meeting. Kovac left at
2 ten past 4.00, then he went straight to the field. He met Mladic in
3 Vlasenica, this is less than 100 kilometres from Pale. You can see on
4 the map P4941, page 5.
5 So Karadzic's subordinates, the head of the police and the head
6 of the army, met on the 13th July in Vlasenica after Kovac had met with
7 Karadzic in Pale. Your Honours, this meeting cannot have been
8 coincidental. And around the time Kovac and Mladic met on the late
9 afternoon of 13 July, there were over 7.000 Muslim men in Bosnian Serb
10 custody, including 6.000 men from the column of men who had set out from
11 Srebrenica on the night of 11 July. The cite for that is P4945, page 1.
12 Over 1.200 men were moved to Kravica warehouse where they were
13 murdered. And, Your Honours, Karadzic must have been informed about the
14 murders at Kravica warehouse almost immediately, just as he was about
15 every other significant event during the Srebrenica operations. I refer
16 to the Defence argument at paragraphs 3031 to -38.
17 On the night of 13 July, Kovac stayed at the Hotel Vidikovac in
18 Zvornik. This was where the convoy of Muslim men stopped the following
19 morning, 14 July, en route to detention and execution sites in Zvornik.
20 This convoy was secured by the civilian police, Kovac's subordinates,
21 that's paragraph 982 of the Prosecution brief.
22 Your Honours, what could Mladic and Kovac possibly have discussed
23 when they met on the late afternoon of 13 July in Vlasenica? The murder
24 operation. This is the only reasonable inference on the evidence because
25 within one or two hours of their meeting, within one or two hours of the
1 Karadzic-Mladic phone call, both Karadzic and Mladic had given orders to
2 move the Muslim men and boys from Bratunac to Zvornik, where they would
3 be killed from 14 to 16 July. The only reasonable inference you can draw
4 is that Karadzic sent Kovac to the field to meet with Mladic, to
5 collaborate about the murder operation and then report back, which he did
6 on the 14th July.
7 You have direct evidence of Karadzic's order to Deronjic to
8 ensure the movement of prisoners to Zvornik, a phone call intercepted at
9 8.10 on the 13th July.
10 First, Deronjic told Karadzic that there were 2.000 men being
11 held in Bratunac, and there will be more during the night. Then Karadzic
12 issued instructions via an intermediary in code. You can see it on the
14 "All the goods must be placed inside the warehouses before 12.00
16 "Not in the warehouses over there but somewhere else."
17 That's P6692, page 1, and in the Prosecution brief at paragraph
18 959 to 966.
19 Now, Karadzic has conceded that this call took place and in his
20 final brief that this call was about prisoners. I refer to the Defence
21 brief at paragraph 3025 and 3280.
22 Why did he have to use a euphemism to describe them? Why speak
23 to Deronjic in code?
24 Your Honours, this intercept is not evidence that Karadzic gave
25 orders for Muslim prisoners to be taken to Batkovic camp. I refer you
1 for this claim to paragraph 3280 of the Defence final brief.
2 The only inference available to you is that Karadzic was ordering
3 Deronjic to ensure that prisoners were concealed inside detention
4 facilities in Zvornik. This is consistent with Mladic's prior order to
5 this effect, that's the Prosecution brief paragraph 955, and with what
6 then happened? The first convoy of prisoners set off for Zvornik that
7 night and the rest the following morning. That night Deronjic met with
8 Karadzic's subordinates in the army and police, Beara, who was Mladic's
9 direct subordinate; and Vasic who was Kovac's direct subordinate.
10 Deronjic told Beara about Karadzic's instructions, that the prisoners had
11 to be taken to Zvornik. Your Honours, the Defence mis-characterises
12 Nikolic's evidence about this meeting at paragraph 3039 of the Defence
13 brief. It is not the case that Beara "informed Deronjic of his plan to
14 murder the prisoners." That's footnote 6398 of the Defence brief.
15 The fate of the prisoners was at this time certain. Beara and
16 Deronjic's discussion concerned where, not if, they would be killed. I
17 refer to M. Nikolic at transcript reference 24678 and 24878.
18 Your Honours, the ICRC did gain access to prisoners at Batkovic
19 camp on the 26th of July. They registered only 164 Bosnian Muslim men
20 from Srebrenica. That's the Prosecution brief at paragraph 1046.
21 On the 14 July in the morning, the convoy of prisoners stopped at
22 the Hotel Vidikovac in Zvornik, where Kovac had stayed the night before.
23 Then the convoy moved onwards, escorted and secured by the police and VRS
24 to detention and execution sites in Zvornik. That's the Prosecution
25 brief paragraph 980to 83.
1 Kovac travelled to Bratunac and Srebrenica. He met Borovcanin
2 whose subordinates had murdered the prisoners at Kravica warehouse the
3 day before and Dragomir Vasic, chief of the Zvornik police, the CJB.
4 That's the brief paragraph 942.
5 In Pale, Karadzic issued a decision declaring a state of war in
6 Srebrenica, Skelani municipality. That's P4553 at paragraphs 988 to 91
7 of the Prosecution brief. The purpose was to facilitate the use of
8 civilian personnel and equipment by the army in the Bratunac and Zvornik
9 areas for the murder and burial operations. At 12.40 Karadzic met
10 Deronjic, whom he had appointed as civilian commissioner of Srebrenica on
11 11 July. I refer to Karadzic's agenda P2242 at page 91.
12 Karadzic must have reported -- Deronjic must have reported to him
13 on the implementation of Karadzic's order conveyed to him that Muslim
14 prisoners were to be transported to Zvornik by midday that day. And in
15 the late afternoon/early evening, Karadzic received a telephone call from
16 a field commander. He was briefed about the column of Muslim men. The
17 call was witnessed by Prosecution Witness Robert Djurdjevic. That's
18 paragraph 1000 of the Prosecution brief.
19 Then Kovac returned to Pale. He met Karadzic at 10.45 that
20 night. Your Honours, the only reasonable inference is that Kovac briefed
21 Karadzic about the significant events then ongoing in the Bratunac and
22 Zvornik areas, about the murder operation, about the burials, and about
23 the implementation of Karadzic's order to move the Muslim men and boys
24 from Bratunac to Zvornik so that they could be killed there. That's the
25 Prosecution brief paragraphs 943 to 948.
1 That day the organised murders in Zvornik began. Approximately
2 1.000 men at Orahovac murdered, approximately 1.000 men at Petkovci
4 Your Honours, Karadzic's subordinates, including Mladic and the
5 police, the MUP, and Deronjic, kept Karadzic informed of every
6 significant step in the progress of the Srebrenica operations during the
7 attack, upon the day of Srebrenica's fall, upon the removal of the
8 population, upon the detention of thousands of Muslim prisoners, upon the
9 movement of prisoners to Zvornik to be murdered, and it didn't stop
10 there. On the following day, 15 July, at 10.00 a.m., Beara was
11 intercepted talking to Krstic. He said -- that's P5074, page 1:
12 "I don't know what to do. I mean it ... there are still 3.500
13 'parcels' that I have to distribute ..."
14 Your Honour, "parcels" was another euphemism for prisoners.
15 Beara was explaining that he still had 3.500 prisoners to kill.
16 On 16 July, when the murders of over 1.000 men at Branjevo Farm
17 were underway, Milenko Karisik, chief of the public security department
18 of the police, travelled to Zvornik. He reported from there to Karadzic,
19 that the Zvornik Brigade commander, that's Pandurevic, had negotiated a
20 cease-fire with the Muslim army and a temporary corridor to allow the
21 column of Muslim men safe passage to Muslim-held territory. Karadzic
22 called the Main Staff. He was concerned because this appeared to be a
23 deviation from the plan, the plan to kill the men. The Main Staff had to
24 get his permission, his approval. That's D2002 and P5076. Prosecution
25 brief paragraph 1002 to 1011.
1 JUDGE KWON: What permission do you mean there? Permission from
2 the president to do what?
3 MS. PACK: To approve a change in course. There was a murder
4 operation underway, but opening the corridor meant that some men, some
5 Muslim men and boys would be allowed to escape.
6 JUDGE KWON: Yes.
7 MS. PACK: That was --
8 JUDGE KWON: I may come back to that.
9 MS. PACK: Yeah.
10 JUDGE KWON: But please continue.
11 MS. PACK: Karadzic had the power of life or death over the
12 Bosnian Muslim men of Srebrenica. He did not exercise it on the
13 16th July to stop the murders. He called his subordinates to find out
14 why some Muslim men were allowed to escape.
15 You'll recall later on the 6th of August, when the whole world
16 knew about the mass executions, Karadzic expressed his only regret in
17 relation to Srebrenica, that 9.000 men were allowed to escape. He said:
18 "9.000 armed Turks in the mountains, in the woods ... that was an
19 airborne division, 9.000 people, that's an air-borne assault ... and in
20 the end several thousand fighters did manage to get through ... we were
21 not able to encircle the enemy and destroy them because we rushed into
22 Zepa." That's P1412, page 17.
23 This statement is evidence of his genocidal intent.
24 Your Honours, Karadzic controlled access to the Zvornik and
25 Bratunac crime scenes, but he kept the international community out so
1 that the murders could proceed to their full conclusion unchecked.
2 That's the Prosecution brief, paragraphs 1022 to 26 and 1034 to 1039.
3 On 17 July, he pardoned a small group of Bosnian Muslim men
4 remaining in Potocari. After the last of the women and children were
5 removed from the enclave, after the men and boys were murdered between 13
6 and 16 July, not for any reasons of humanity but to deflect international
7 attention from the enclave. Your Honours, this is one of the "exemplary"
8 orders to which Karadzic refers at paragraph 3127 of his final brief, he
9 refers to P4390.
10 On 17 July when over 7.000 Muslim men were dead and buried,
11 Karadzic went on CNN. The interviewer, David Frost, asked Karadzic about
12 the Muslim men. We can see a clip.
13 [Video-clip played]
14 "And what about the figures we've read in the media, your
15 favourite area, in the media about 15.000 men missing, unaccounted for
16 from Srebrenica and that you have got them somewhere? That's what we
18 "Well, even yesterday and today we have opened our lines and many
19 of them have entered Muslim territory, many of them have been combatants,
20 and our local commander has allowed them to pass through our territory
21 and they're passing even tonight. Many of them are in the forests and
22 they are trying to get to Muslim-controlled territory and we are not
23 interfering. We don't want to fight with them because they do not intend
24 to take our territory. They want to leave our territory."
25 That's P5235, pages 2 to 3 of the transcript.
1 You heard Karadzic said of the missing Muslim men: Many of them
2 are in the forests and they are trying to get to Muslim-controlled
3 territory. He lied of course. But he didn't say to David Frost: The
4 Muslim men are in Batkovic camp, like I ordered on the 13th July, when I
5 spoke to my subordinate Deronjic in code.
6 Why not, Your Honours? Because that is his case. I refer to the
7 Defence brief paragraph 3280. Well, the answer is plain: Because he
8 knew they were dead - he had approved and authorised their murders.
9 Now he says he didn't know about the concerns expressed by the
10 international community or he says he didn't believe the allegations. I
11 refer to the Defence brief paragraphs 3129 to 3142.
12 Your Honours, the Prosecution has addressed the extent to which
13 Karadzic engaged with the international press in the Prosecution brief
14 paragraphs 1026, 1037 to 39, and 1081 to 83.
15 Karadzic was aware of the allegations and concerns of the
16 international community. We saw that in the interview with David Frost
17 on the 17th July. I refer you also to the Prosecution brief paragraphs
18 1025, 1043 to 46, 1071 to 74, and 1080 to 83.
19 JUDGE KWON: Pausing there because I find this part somewhat very
20 important. I'd like to make sure. With respect to that Assembly
21 transcript, P1412, page 17, during the opening statement Mr. Tieger said
22 that Mr. Karadzic was angry about this column's escape and now you said
23 he was regretful, that he expressed regret, but which was not present in
24 your final brief, that expression. So could you expand. Where did you
25 get that opinion that Mr. Karadzic was angry or regretful about that
1 column's escape? What is your basis?
2 MS. PACK: From the language that is used. To say the only
3 statement that is made concerning the thousands of Muslim men of
4 Srebrenica is -- that's an air-borne division. Nine thousand of them got
5 through and then they came back in a division to -- we were not able to
6 encircle the enemy and destroy them. It's clearly a regret, same meaning
7 as anger. When I say "regret," I mean this was his only expression after
8 the Srebrenica events, any expression of emotion. It was the anger, the
9 regret that some Muslim men were allowed to escape in the corridor that
10 Pandurevic opened and that would be just on the basis of the language
11 that is used in this Assembly session.
12 JUDGE KWON: In his speech at that Assembly he said: "We were
13 not able to surround and destroy that enemy."
14 So "destroying enemy" per se would not amount to genocidal
16 MS. PACK: Well, he's not going to say in the Assembly, We were
17 not able, as we did with the other 7.000, to summarily execute them and
18 bury them in mass graves. So this is evidence of his genocidal intent
19 because it demonstrates that this was -- he was angry that some got away.
20 So he knew that everyone else had been murdered and this is evidence that
21 his statement of regret, of anger, that not every single one of these
22 Muslim men and boys were murdered. His intent was to eliminate the
23 Bosnian Muslim population by killing all the men and boys. These men
24 were allowed to escape and that angered him.
25 JUDGE KWON: Thank you.
1 Could we upload Exhibit P5076, intercept between the Main Staff
2 and Palma you referred to.
3 While we are waiting for that, you also referred to Exhibit D202
4 where it was noted Mr. Karadzic called Main Staff and then where it says
5 like that:
6 "The President called a short while ago and said that he had been
7 informed by Karisik that Pandurevic had arranged the passage for the
8 Muslims over to that territory."
9 MS. PACK: Yes.
10 JUDGE KWON: In light of that, I have some trouble interpreting a
11 couple of lines at the beginning of this intercept. Here the Main Staff
12 people saying -- says: I have to get permission from the main boss, from
13 the main head of state. You referred to this and then I said I would
14 come back to this. Knowing that the column already passed to the
15 territory, what kind of permission do they need further on the part of
16 the Main Staff?
17 MS. PACK: Well, we see in the sequence of events at that time
18 and the intercepts that there is -- the Main Staff is sending Popovic
19 down to talk to Pandurevic, that Karisik is in the area. He finds out
20 what happens before it seems the Main Staff is aware. The information
21 gets to Karadzic. He responds. He gets in touch with the Main Staff.
22 Clearly there is a need to find out what is going on in the Zvornik area
23 and to get -- to ensure that there is approval because this is a
24 change -- like 9 July Tolimir had proposed -- the Main Staff proposed to
25 Karadzic attack on the town because the conditions were right; Karadzic
1 gave his approval. That was a change in the military operation under the
2 Krivaja 95 attack order, took it further: Take over the town. His
3 approval was required just as it was on the 9th of July, just as it was
4 when there was any significant decision during the course of the
5 Srebrenica operations.
6 JUDGE KWON: So was this permission not related to the column?
7 MS. PACK: Yes, this was. This specifically -- this related to
8 allowing the column through. Clearly the head of state calls and wants
9 to know what's going on because he's been informed almost in real time
10 but relatively soon by Karisik because Karisik has been with Pandurevic.
11 He has been with Pandurevic in Zvornik; we heard that evidence. So he
12 had firsthand information which he communicates to Karadzic. We know it
13 was accurate because we saw Vasic's reports around the same time. We
14 know that Karisik had the ability to call Karadzic, that the call was in
15 fact made, that Karadzic received this information. He was getting
16 information via his various information streams, his reporting chains.
17 And on -- upon receiving this information and it seems before the
18 Main Staff were fully aware of what was going on, he then responded to
19 that information, getting straight in touch with the Main Staff.
20 JUDGE KWON: Okay.
21 MS. PACK: Which is what we -- how we describe it in the
22 Prosecution brief at paragraph 1002 to 1011. These actions were
23 superficially seen to deviate -- superficially to deviate from the plan
24 to murder. Pandurevic didn't have the approval of Karadzic and/or the
25 VRS Main Staff, so efforts were made to contact Pandurevic by everyone
1 because Karadzic's approval was needed.
2 JUDGE KWON: Yes. I will leave it at that. Thank you, Ms. Pack.
3 MS. PACK: Thank you.
4 JUDGE KWON: Please continue.
5 MS. PACK: Your Honours, I'm just going to have a look on the
6 transcript to see where I was. And now I've lost myself.
7 Yes, I was going to move on to the exemplary orders.
8 Your Honour, I'm going to address the three specific claims I mentioned
9 at the outset: Karadzic's orders were exemplary. This is the claim at
10 paragraph 3127 of the Defence brief. He lists seven decisions or orders
11 at paragraph 3127. Your Honours, there is nothing exemplary about these
12 orders. The first five addressed -- are addressed in the Prosecution
13 brief. The 9 July order, P2276, is dealt with at paragraphs 876 to 79.
14 It's the order to attack Srebrenica town. The 11 July decisions, D2055
15 and P2994 are at paragraphs 900 to 908. These are the decisions setting
16 up Serb civilian structures in Srebrenica.
17 Karadzic appointed a veteran ethnic cleanser, his subordinate
18 Deronjic, to deal with the Muslim civilians. He didn't intend when he
19 accompanied these orders with instructions to adhere to international
20 humanitarian law that international law be actually observed by his
21 subordinates, and it wasn't. This was simulated adherence to
22 international law. I refer to the Prosecution brief at paragraphs 879 to
23 902. The same applies to Karadzic's 14 July decision, P4553. This is
24 the declaration of a state of war. I've discussed it. It's dealt with
25 at paragraphs 988 to 991 of the Prosecution brief.
1 The pardoning of Muslim local staff in Potocari, the Defence
2 refers to P4390, is dealt with at paragraphs 1030 to 1033 of the
3 Prosecution brief.
4 Karadzic relies upon two further orders. The first P4967 is
5 dated 22nd July. It's at footnote 6510 of the Defence brief. 22nd July
6 after the Bosnian Muslim population were forcibly removed. It should be
7 read in context with Prosecution exhibit P4966. Then you will see that
8 it is about the theft of food and equipment from the UN base at Potocari
9 after the UN had left. Deronjic said he would get an order from Karadzic
10 to deal with the problem, and he did so almost immediately. That's what
11 P4967 and P4966 shows.
12 The second order is P4968. It's footnote 6511 of the Defence
13 brief. It's dated 24th July, 1995. Again, after the Muslim population
14 was forcibly removed from Srebrenica. It relates to the passage of
15 humanitarian convoys to Muslims in Gorazde, not Srebrenica, and not for
16 any reasons of humanity but to ensure the passage of humanitarian aid to
17 Serbs in other areas and to stop NATO forces bombing VRS positions. This
18 document shows that Karadzic was in direct telephone contact with Krstic
19 and that when an order came from Karadzic, the army was expected to obey.
20 Under threat of prosecution, that's what this document says:
21 "We will take disciplinary measures against ...," it goes on,
22 "and prosecute all those who disrupt the fulfilment of Drina Corps
24 The second specific claim, Your Honours, I was going to deal
25 with, Karadzic says he didn't know anything because the written reports
1 that reached him made no reference to the execution of prisoners from
2 Srebrenica. That's the Defence brief at paragraphs 3083 to 85 and 3091
3 to 3107. He brought witnesses to confirm his innocence of all knowledge,
4 witnesses like Kovac, Tolimir, and Gordan Milinic, liars, genocidaires
5 and noxious devotees. Your Honours, we have described the official and
6 unofficial reporting chains to Karadzic in the Prosecution brief,
7 paragraphs 843 to 854. Let me repeat the Prosecution's point: Karadzic
8 was kept informed during the Srebrenica operations by telephone and
9 in-person contacts with his subordinates in the army, police, and local
10 civilian authorities, and these telephone and in-person contacts were
11 supplemented by written reports. The Main Staff reported to Karadzic in
12 writing about prisoners. I refer to the Prosecution brief at
13 paragraph 852.
14 On 12 July, Karadzic was informed that the VRS and MUP units had
15 "organised ambushes in order to destroy Muslim extremists who have not
16 surrendered." That's P3054 pages 3 to 4.
17 On the 13th July, Karadzic was informed that Muslim men had
18 surrendered "in large numbers." That's P4464, page 3. On 14 July
19 Karadzic was informed that Drina Corps units were "scouring the terrain"
20 and taking a "large number of Muslim fugitives" prisoner. That's P4457,
21 page 3.
22 On the basis only of these written reports, Karadzic knew about
23 prisoners in large numbers. Where did he think they all went? Batkovic
24 camp? Karadzic says he had no reason to know in mid-August that a
25 significant number of Muslim men and boys had been executed. I refer to
1 the Defence final brief at paragraph 3111. But he received a report from
2 the state commission for exchange of POWs dated the 12th of August, 1995,
3 which said that there were no more than a few hundred Muslim men from
4 Srebrenica at Batkovic camp. That's P4975, pages 2 to 3, and I refer to
5 the Prosecution final brief paragraph 1047, and that's footnote 3782.
6 And indeed, between August and the end of December 1995, only 170
7 Muslim men from Batkovic camp were exchanged. That's P5440.
8 If truly innocent of the Srebrenica crimes, why did Karadzic not
9 raise the alarm in August 1995? Where were the men and boys of
10 Srebrenica? Why didn't Karadzic then order an investigation?
11 Your Honours, next I'll deal with what the Defence says about
12 when the plan to kill emerged. I refer to the Defence final brief,
13 paragraphs 2449 to 2518. Karadzic seeks to shift responsibility for the
14 murders at Kravica warehouse and even the killings in Zvornik upon Muslim
15 prisoners who he says attempted a "mutiny" at Kravica warehouse and
16 triggered the massacre of over 1.000 men. I refer to the Defence brief
17 at 2450 and 51 and 2518.
18 Your Honours, there were organised killings on 13 July at Jadar
19 River, Kravica warehouse, Sandici meadow and Luke school near Tisca.
20 These organised killings are described in the Srebrenica narrative.
21 That's appendix D at paragraphs 49 to 79. We've explained why they were
22 carried out in furtherance of the joint criminal enterprise to eliminate.
23 We've explained why the murders at Kravica warehouse were premeditated,
24 organised, and committed in furtherance of that plan. I'm not going to
25 repeat the arguments; they're in the brief.
1 All of the evidence points to the existence of a plan to murder
2 the Muslim men and boys of Srebrenica which was being implemented in
3 Potocari from the moment the men and boys were separated from their
4 family members on the 12th July. We deal with this in the Srebrenica
5 narrative at paragraphs 14, 19 to 23, and 25 to 27. This is what
6 Momir Nikolic was told would happen in his conversations with Popovic,
7 Kosoric, and Jankovic on the morning of 12 July. These conversations are
8 described in the Prosecution brief at paragraphs 916 to 919. I won't
9 repeat the detail. And, Your Honours, this is what did happen. The
10 Defence brief does not raise any reasonable doubt on this issue.
11 I'll address four topics. The first relates to the organised
12 killings at Jadar River; the second relates to an intercept upon which
13 the Defence relies; the last two relate to the separations of Muslim men
14 and boys.
15 First, Your Honours, the Jadar River killings. The Defence
16 argues that you cannot convict or make a factual finding on the basis of
17 KDZ065's evidence about the executions at Jadar River on the 13th July.
18 That's the Defence final brief at paragraphs 2494 to 2495. We have
19 addressed the Jadar River killings and the respects in which KDZ065's
20 evidence is corroborated in the Srebrenica narrative, paragraphs 49 to
21 53. I also refer you to paragraphs 39 to 40 of the Srebrenica narrative.
22 We in any event say that the Defence evidence does not displace
23 the adjudicated facts related to this incident because not credible or
24 reliable. And, Your Honours, the Defence only puts an adjudicated fact
25 into question when it introduces "reliable and credible evidence to the
1 contrary." I refer you to paragraph 42 of the Appeals Chamber's 16 June
2 2006 decision on the Prosecutor's interlocutory appeal of decision on
3 judicial notice in the Karemera case.
4 And, Your Honours, we have discussed the Defence evidence in the
5 Srebrenica narrative and in the Defence witness credibility charts,
6 that's appendix F at pages 184 and 194 to 195.
7 Your Honours if you find, however, that the adjudicated facts for
8 the Jadar River killings have been displaced and you find that KDZ065's
9 evidence is not corroborated, as we say it is, then we move to your
10 question, 8, as forecast by Mr. Tieger and raised by the Defence brief.
11 And I'll read the question for the record:
12 "What is the Prosecution's position with regard to the use of
13 uncorroborated Rule 92 bis evidence for the purposes of making factual
15 Now, in answering the question I refer to the Defence brief
16 paragraph 2494 on the topic of Jadar River. It is right to say that the
17 Trial Chamber in the Blagojevic case declined to make a factual finding
18 on the basis of uncorroborated 92 bis evidence. This was in relation to
19 the scheduled killings at Jadar River. However, there is ICTY authority
20 for the proposition that the Chamber may rely on a pattern of similar
21 events or linked events, as corroboration sufficient to sustain a
22 conviction. And I refer specifically in making this -- advancing this
23 argument to the Jadar River killings. In particular, I refer you as
24 authority to the Kupreskic appeals judgement at paragraphs 321 to 322.
25 The Appeals Chamber held that pattern evidence can provide corroboration
1 for other forms of evidence led at trial.
2 This approach accords with the Stakic Appeals Chamber's approval
3 of a conviction on the charge of killing 77 Croats in Brisevo, in
4 circumstances where the only evidence supporting the finding was admitted
5 under Rule 92 bis. As here, the incident in Stakic was one of many
6 killings underlying the convictions for the counts of extermination,
7 murder, and persecution. I refer you to paragraph 201 of that judgement.
8 Your Honours, you can and you should make a similar factual
9 finding in relation to the scheduled incident at Jadar River. The
10 executions at Jadar River on 13 July were analogous to the other
11 organised killings that occurred that same day at the Kravica warehouse,
12 Sandici meadow, and Luke school. The organised killings all contained
13 the same shared elements: The perpetrators were Bosnian Serb forces, the
14 victims were Bosnian Muslims, the killings involved co-ordination by VRS
15 and MUP forces, buses were used to transport victims to execution sites,
16 and the killings occurred within the context of a murder operation. The
17 similarities in the sequence of these killings and evidence that they are
18 all linked serve to corroborate KDZ065's account. That was the
19 submission on that question as it relates to Jadar River.
20 Second, on the topic of the plan to kill, which I'm now on, the
21 Defence refers to an intercept; that's D2197. That's at paragraph 2468
22 of the Defence final brief. This intercept notes that Beara said at
23 11.25 on the 13th July that the prisoners will be sent to Batkovic. It's
24 not consistent with Beara's true intentions. The prisoners were not sent
25 to Batkovic. Beara was by then a willing participant in the joint
1 criminal enterprise to eliminate. In a conversation intercepted over an
2 hour earlier at 10.09, he issued instructions about the detention of
3 Muslim men at Konjevic Polje and told that Muslim men were killing
4 themselves, said:
5 "Excellent. Just let them continue, fuck it." That's D2204,
6 page 2, and P5354 at page 3.
7 Your Honours, I'll deal with the last two issues together. The
8 Defence brief says first that there were efforts to screen and register
9 prisoners, which shows that the existence of a plan to kill from 12 July
10 is not the only reasonable inference to be drawn on the evidence.
11 Second, that there was no evidence of systematic confiscation of
12 identification documents. I refer to paragraphs 2470 to 2479 and 2511 of
13 the Defence final brief.
14 Your Honours, there was no genuine screening process. I refer to
15 the Srebrenica narrative, paragraph 22. Young boys, children, were
16 separated from their family members in Potocari. This is Rutten's
17 testimony. He said boys as young as 12 were separated. That's at P3948,
18 paragraph 49; and transcript reference 22040 and 22046. And it is
19 Kingori's testimony, that's at P4140, paragraphs 170 to 171.
20 Your Honours, I also refer you to the evidence of Sera Ibisevic, P401,
21 page 8; Samina Salcinovic [phoen], P404, page 13. There was no effort,
22 apart from at Nova Kasaba which I will come to, to record the identities
23 of the Muslim prisoners who were taken into custody. There is evidence
24 of the systematic confiscation of identification documents and
25 identification documents were destroyed. On 12 July, Boering saw ID's
1 and passports scattered in the corner at the white house in Potocari,
2 that's at P3969, pages 122 to 123 and 183. On 13 July, Rutten saw piles
3 of ID cards and passports lying on the floor outside the white house;
4 that's at P3948, paragraphs 55, 63, and 89. He said children as young as
5 12 were forced at gunpoint to abandon their IDs. That's transcript
6 22040. He watched as the belongings and identification documents of
7 Muslim men and boys were burned on the evening of 13 July. That's at
8 P3948, paragraph 66 and transcript 22041 to 42 and P3961. On 12 July,
9 Kingori saw that the men were forced to leave their identification cards.
10 That's at P4140, paragraphs 173 to 174 and transcript 22813. He said it
11 meant a lot:
12 "This was an indicator that something bad was going to
13 happen ..." That's at P4140, paragraph 175.
14 There is evidence of the systematic removal of ID cards outside
15 of Potocari in Bratunac town. I refer to the evidence of KDZ039; that's
16 P3940, page 28. Konjevic Polje on the 13th of July, I refer to the
17 evidence of KDZ065, that's P336, pages 12 to 13; and KDZ045, that's
18 transcript 22639, 22679 to 80 and 22685.
19 Karadzic relies upon the evidence of two survivors. This is at
20 paragraph 2511 of the Defence brief. One, KDZ039, had his identification
21 documents removed in Bratunac. I've already referred to his evidence.
22 The other, KDZ167, didn't have his identification documents removed in
23 Potocari or in Bratunac. That's true. He had also left his
24 identification at home. The reference is P354, pages 73 to 74.
25 Your Honours, I mentioned Nova Kasaba earlier. Mladic told
1 prisoners at Nova Kasaba on the 13th July they would be exchanged, they
2 were not criminals, they would go to Bratunac for lunch. He would
3 organise groups to collect the wounded in the woods, for the dead to be
4 buried where their families wanted them to be buried, and in that context
5 he ordered his soldiers to make a list of prisoners. A camera was
6 filming him as he said this. Then his soldiers kicked and hit a prisoner
7 with rifle-butts. One shot him dead with a pistol. Mladic didn't react.
8 Karadzic relies upon this evidence. Mladic's merciless lies to show that
9 there was no plan to kill the men. It does not. I refer to the Defence
10 final brief at paragraph 2474 and the Srebrenica narrative at
11 paragraph 43, adjudicated fact 1623 and the evidence of KDZ333 at P4342,
12 pages 10 to 11.
13 Two final points on the topic of the separations. First,
14 Karadzic relies on a list of 387 suspected war criminals dated the 12th
15 July as evidence that there was a genuine screening process, and
16 therefore no plan to kill the men. I refer to the Defence final brief
17 paragraph 2473 and D1957. This is not an inference you can make on the
18 basis of this list. If there was a genuine screening process, why were
19 all of the men and boys who were separated in Potocari taken to Bratunac;
20 the reference is E. Rave at 22181. Second, Karadzic relies upon the
21 evidence that Resid Sinanovic was questioned as a war crimes suspect - I
22 refer to Defence brief paragraph 2476 - and that Beara told
23 Zlatan Celanovic on 12 July to find out if there were any suspected war
24 criminals in custody. I refer to the Defence brief paragraph 2477.
25 Your Honours, Sinanovic was on the list to which the Defence
1 refers. That's D1957. He appears at line 121. On 13 July he was
2 questioned by Zlatan Celanovic, the Bratunac Brigade Legal Officer.
3 Celanovic found that there were no grounds for detaining him or bringing
4 criminal charges against him, the reference is P377, pages 10 to 12 for
5 Celanovic and M. Nikolic at transcript 24658 to 59.
6 But Sinanovic wasn't released from custody. As you would expect,
7 if this was a genuine screening process. He was detained in Bratunac,
8 then he was sent to Zvornik. He escaped the executions at Kozluk. He
9 fled over the river Drina. He was re-arrested and taken back to Zvornik.
10 And then he was murdered at Branjevo Farm or the Pilica cultural centre
11 on the 16th July. We give this account in the Srebrenica narrative at
12 paragraphs 85 to 88. Apart from a group of five to seven prisoners who
13 were brought in at the same time as Sinanovic, Celanovic interrogated no
14 one else in Bratunac; that's P377, pages 8 to 9, page 13, 20 to 21, page
16 If there is any doubt in your mind about the purpose of the
17 separations of Muslim men and boys in Potocari, let me remind you of the
18 evidence of a mother from Srebrenica known in this courtroom as KDZ265.
19 KDZ265 lost her husband and two of her sons. She described when her
20 14-year-old son was taken from her in Potocari. She said they had to
21 walk through a kind of gauntlet. Then when they were halfway through,
22 someone said:
23 "Popovic, look out for this one." He was referring to her son.
24 She whispered to her son:
25 "Don't worry, sonny. Just go. Keep going."
1 Then one of the soldiers jumped out and told her son to go to the
2 left side. Her son said:
3 "Why me? I was born in 1981."
4 Then she testified of her son:
5 "He had some kind of bags in his hand and the soldier told him to
6 throw the bag to the right side and to go to the left but I grabbed him
7 by his hand and I -- he kept repeating, 'I was born in 1981. What will
8 you do with me? What do you want me to do?' And then I begged them, I
9 pleaded with them. 'Why are you taking him? He was born in 1981.' But
10 he repeated his order. And I held him so hard but he grabbed him.
11 "And then my son threw out that bag and the soldier picked up the
12 bag and threw it on a pile on the right-hand side and he took my son's
13 hand and he dragged him to the left side. And he turned around and then
14 he told me, 'Mommy, please, can you get that bag for me? Could you
15 please get it for me?'"
16 She said, "That was the last time I heard his voice." That's
17 P367, pages 13 to 15. Your Honours, the evidence of the separation of
18 children is sufficient to determine that there was no genuine screening
19 process in Potocari.
20 Now, Your Honours, I was going to move on to the response on the
21 numbers. I'll turn to Karadzic's argument on the numbers of
22 Bosnian Muslim men who were executed. It's paragraphs 2519 to 2702 of
23 the Defence brief.
24 Your Honours, the Defence fails to consider the totality of the
25 evidence. The Prosecution case on the numbers of men who were murdered
1 is based on the evidence of witnesses, intercepts, and documents
2 corroborated by the forensic and demographic evidence. I refer you to
3 the Prosecution brief at paragraphs 916 to 1066 and the Srebrenica
4 narrative at paragraphs 14 to 173. This evidence must be considered in
5 its totality, not piecemeal.
6 The Defence argument is confused and speculative. It is not
7 supported by the evidence in this case. It examines the forensic and
8 demographic evidence in isolation. Karadzic argues uncertainty around
9 the total number of Srebrenica victims when there is none. Karadzic's
10 principal arguments are that the bodies of execution and combat victims
11 are "co-mingled" in the Srebrenica-related graves and that the number of
12 Srebrenica victims isn't capable of determination, he says nowhere close
13 to 7.000. The cite is 2700.
14 I refer to the Defence brief at paragraph 2698 to 2702.
15 I'll deal with the first claim, co-mingling of bodies. The
16 witness testimony, contemporaneous documents, intercepts, and forensic
17 evidence taken together demonstrate beyond any reasonable doubt that all
18 of the Srebrenica-related primary and secondary graves contain
19 exclusively the bodies of Srebrenica-related execution victims, apart
20 from three sites at Glogova, Bljeceva, and Liplje 8. Now, the mixed
21 contents of Glogova and Bljeceva were explained by Dusan Janc. And the
22 reference for that is -- Janc's testimony is at 27016 to 27017 and 27040
23 to 46 and 27060. And Janc didn't include the bodies in Liplje 8 within
24 the numbers in his report and that's -- the reference for that is his
25 report which is P4772, the public version. We have explained why no
1 combat casualties were buried in the graves and that's in the Srebrenica
2 narrative at paragraphs 164 to 168. As we have explained, the conclusion
3 that the graves contain execution victims exclusively is consistent with
4 and overwhelmingly supported by the forensic evidence. First, the
5 forensics -- the Prosecution's forensic experts did not see any evidence
6 that the bodies exhumed from the Srebrenica graves -- related graves died
7 in combat. Second, the Prosecution's archaeologists saw no evidence that
8 the Srebrenica-related graves had either been created on the sites of
9 existing sites or subsequently re-opened. Third, the cause and manner of
10 death of bodies from each of the primary and secondary grave-sites
11 supports the witness evidence of the executions at each of these sites.
12 I refer to the Srebrenica narrative. Fourth, there were blindfolds and
13 ligatures in the graves associated with Orahovac, Petkovci, Kozluk and
14 Branjevo. I refer to the Srebrenica narrative, footnote 699 and the
15 Defence brief paragraphs 2585, 2639, 2685, and 2687. Fifth, some graves
16 contain artefacts linking their contents to the specific site where the
17 prisoners were killed. I refer, for example, to the Srebrenica
18 narrative, paragraphs 63 and 104 about Kravica warehouse and Orahovac.
19 Sixth, there is no credible evidence that the secondary graves contain
20 any bodies other than those of victims from the primary graves. I refer
21 to the claims at paragraphs 2605 to 8 of the Defence brief. Karadzic
22 ignores all of the linkage between the primary and the secondary graves
23 apart from the DNA linkage. That evidence includes soil, pollen, other
24 artefacts, as well as the evidence from witnesses and documents about the
25 reburial operation itself. I refer to the Srebrenica narrative,
1 paragraphs 63, 103 to 104, 112, 123, and 142 and the Prosecution brief
2 paragraphs 1057 to 1066.
3 Your Honours, I was going to move on to another point, so perhaps
4 now is a good time.
5 JUDGE KWON: Yes. When we come back, can I hear your response to
6 the Defence assertion in their final brief paragraphs 259 -- I'm sorry,
7 2549 to 56, pages 674 and 675.
8 Yes, Mr. Tieger.
9 MR. TIEGER: Mr. President, may I use this opportunity to make
10 two brief corrections now that we've received yesterday's transcript. So
11 at T47670, I referred to page 87 of the Defence brief. I should have
12 cited paragraph 787. And at page 47687, I cited to D105 and I should
13 have cited to D1055. Thank you.
14 JUDGE KWON: We'll resume at 20 past 3.00.
15 --- Recess taken at 2.59 p.m.
16 --- On resuming at 3.22 p.m.
17 JUDGE KWON: Yes, please continue, Ms. Pack.
18 MS. PACK: Mr. President, if I can just answer your question
19 first. I will try to do so without us having to go into private session.
20 I can just refer to paragraph numbers. So if I can refer to
21 paragraph 2549 and your question relates to the individuals who are
22 identified there.
23 So what I can tell you is that bar one, and I'll come to him,
24 none of these individuals identified are computed within the figure that
25 Dusan Janc reaches in his report, which is the figure of 5977, of which
1 he takes from the DNA profiling in combination with ICMP's list. None of
2 them appear -- are within that computation save one, which -- he is the
3 one at C. And if you look at the reference there to the evidence, what
4 is revealed by that is that KDZ045 only says that he heard this
5 individual was killed in the woods but did not witness this. So that's
6 in relation to that individual.
7 Just going down the list, just from the top to the bottom. A,
8 he's identified on the ICMP's list, that's P5913, as surface remains so
9 he wouldn't be included in Janc's figure.
10 And B is not in -- not identified, and you can see from the code
11 in the ICMP list, by the code in the list you can see that he's not in
12 one of the graves that has been included within Dusan Janc's computation.
13 That's B. So far as -- there's a second B.
14 Second B, his name doesn't match clearly a name on the ICMP list,
15 and the reason for that is there is no father's name provided, so I can't
16 assist, but he's not been clearly identified as on the ICMP list.
17 The next one, C, I believe I have already covered.
18 D, this one too there is no exact match for the name on the ICMP
20 And E and also F, both of those individuals are not -- when you
21 look at the code on the ICMP list, they're not in one of the graves that
22 are included within Dusan Janc's computation.
23 So I hope that answers the question.
24 JUDGE KWON: Yes. Thank you.
25 MS. PACK: Thank you very much.
1 And going back to Mr. Karadzic's arguments, the second main
2 argument. The Prosecution case is that over 7.000 Muslim men and boys
3 were executed. This case is proven on the totality of the evidence. We
4 rely upon four broad categories of evidence: DNA, direct evidence of the
5 number of prisoners killed, evidence of the number of prisoners captured,
6 and the demographic evidence of the number of people missing following
7 the fall of Srebrenica.
8 Turning to the DNA evidence first, we've discussed this in the
9 Srebrenica narrative at paragraphs 169 to 171. For the reasons
10 explained, the number of execution victims identified by DNA profiles in
11 the Srebrenica-related grave is at least 5.850. This figure doesn't
12 include any surface remains or any of the non-execution victims in the
13 three mixed graves. It refers exclusively to numbers of known execution
14 victims within the graves. But this is not the final number of
15 Srebrenica execution victims. As more graves and bodies are identified
16 in the coming years, this number will continue to increase.
17 Then turning to the direct evidence, the evidence of individuals
18 who were present, survivors, executioners, people involved in the
19 burials. Their evidence present at the detention, execution, and burial
20 sites, directly supports the Prosecution's case that over 7.000 prisoners
21 were executed. And I refer you to the relevant paragraphs in the
22 Srebrenica narrative, paragraphs 54, 64, 97, 107, 114, 125 to 6, 135 to
24 Documentary and intercept evidence also supports the
25 Prosecution's case. One of the most compelling pieces of evidence about
1 the number of prisoners killed is the intercept between Beara and Krstic
2 to which I have referred. Beara explained on the 15th July that he still
3 had 3.500 prisoners, parcels, to kill. That's cite P5074. This was
4 after the murders of over 3.000 Muslim men and boys in executions in
5 Bratunac, Potocari, at Kravica warehouse, Orahovac, and Petkovci Dam; but
6 crucially before the executions at Kozluk, Branjevo Farm, Pilica cultural
7 centre. I refer to the Srebrenica narrative at paragraphs 34 to 35, 49
8 to 79, and 89 to 144. This was 15 July, the halfway point.
9 Turning to the numbers of Muslim men who were captured,
10 documentary evidence, witness evidence, and intercept evidence shows that
11 over 7.000 prisoners were captured after the fall of Srebrenica. All of
12 them were murdered. First, over 1.000 men and boys were detained in
13 Potocari on 12th and 13th July. I refer to the Prosecution brief
14 paragraph 895 and Janjic's evidence at P1194 and pages -- at pages 31 to
15 32 and P372 at pages 20 to 23. Second, about 6.000 Muslim men
16 surrendered or were captured from the column on 13 July. The cite is an
17 intercept dated 13 July at 5.30 p.m., as you will recall; it's P4945. It
18 reads there are two conversants, X and Y.
19 "Y: There are -- there're about 6.000 of them now.
20 "Of military age?
21 "Shut up, don't repeat."
22 Third, I refer you to a Telex sent on 16 July by
23 Christine Schmitz, the MSF nurse, Medecins Sans Frontieres nurse, in
24 Potocari. She said, according to Franken, the VRS "seemed to have
25 already more than 7.000 POWs in Bratunac." That's P4757 at page 2.
1 I also refer you to the evidence of Franken. The reference is
2 paragraph 1024 of the Prosecution brief.
3 Your Honours, in addition, I refer you to all of the cites listed
4 already in the Prosecution brief at footnote 3099.
5 Finally, in addition to those captured on the 13th July, hundreds
6 more were captured and executed in the sweep operation in the subsequent
7 days, including at Cerska. I refer you to the Srebrenica narrative,
8 paragraphs 145 to 163.
9 Finally, demographic evidence. The Prosecution's demographic
10 evidence shows that as of April 2012, 7.905 people were reported missing
11 from Srebrenica; that's 7905. Of those 7.905 individuals - and I refer
12 to the Srebrenica narrative at paragraph 172 - at least 5.850 are known
13 to be execution victims through DNA profiling, as I've explained. Of the
14 remaining individuals, many more must have been execution victims. This
15 includes men whose remains were found on the surface and men whose
16 remains have yet to be found. This is because of the tenacity with which
17 Karadzic's subordinates sought to kill every last Bosnian Muslim from
18 Srebrenica whom they could capture, including after the mass executions
19 had ended. I refer to the Srebrenica narrative, paragraphs 85 to 88, 139
20 to 140, 151 to 163, and P4965, and the Prosecution brief, paragraphs 1040
21 to 1042.
22 Your Honours, Karadzic's demographic arguments at 2522 to 2530 of
23 his brief are vague and speculative. They are based on broad, imprecise
24 estimates of numbers who were in the enclave, how many left for Potocari,
25 and how many were bussed to Kladanj. Karadzic then massages these
1 figures misleadingly to support his argument.
2 My last points on the numbers: Karadzic provides no basis in
3 paragraph 2568 of his brief for excluding opportunistic killings in the
4 scope of the JCE to eliminate. These prisoners were all marked for
5 death. The fact that a few VRS or MUP soldiers took advantage of this
6 climate of impunity and killed several tens of victims at an earlier time
7 than they would otherwise have been killed does not put these crimes
8 outside the scope of the joint criminal enterprise to eliminate.
9 Karadzic's suggestion in paragraph 2567 that the Kravica
10 warehouse victims should be excluded from the total number of execution
11 victims has no basis. Even if the burned hands incident, as he claims,
12 triggered the start of the Kravica killings, it could not justify the
13 cold-blooded, efficient and methodical massacre of over 1.000 people.
14 Your Honours, on the totality of the evidence, it can be
15 conservatively concluded that over 7.000 Muslim men and boys from
16 Srebrenica were executed. And I refer to paragraph 173 of the Srebrenica
18 Your Honours, I'm going to deal with one of the questions you
19 raised on Friday. It's question 1, part 2. I'll read it:
20 "Can the Prosecution outline its position, in simple terms, as to
21 the interplay between the overarching JCE and the Srebrenica JCE as well
22 as the scope of each in terms of the underlying charges?"
23 Your Honours, the passage of events that I outlined at the outset
24 describes the interplay between the overarching joint criminal enterprise
25 and the joint criminal enterprise to eliminate. Directive 7 is evidence
1 of the plan from March 1995 under the overarching joint criminal
2 enterprise specifically in relation to the Srebrenica enclave. It is
3 also evidence of Karadzic's intent to forcibly remove the Bosnian Muslim
4 civilian population from the Srebrenica enclave. The interplay between
5 the JCEs, the two JCEs, is plain when examined in reference to Counts 7
6 and 8; that's deportation and forcible transfer.
7 I refer Your Honours to paragraph 75 of the indictment. As a
8 result of Karadzic's participation in the joint criminal enterprise to
9 eliminate, he is responsible for the forcible transfer and deportation of
10 the Bosnian Muslim women, children, and elderly from the Srebrenica
11 enclave. Under the JCE to eliminate, we do not seek a finding that
12 Karadzic is responsible for the forcible transfer of the civilian
13 component of the column of Muslim boys -- men and boys who fled
14 Srebrenica on the night of 11 July. This is because from the moment he
15 shared the criminal purpose to eliminate the Bosnian Muslims of
16 Srebrenica, his intent, in relation to the men, was not to remove but to
17 kill them. His criminal responsibility should be classified accordingly.
18 If you find there was no JCE to eliminate or that Karadzic was
19 not a member, then he is, nevertheless, responsible for the forcible
20 transfer of the Bosnian Muslim population. That would include the women
21 and children, and the men, under the overarching JCE.
22 JUDGE KWON: I'm not sure I understand you, Ms. Pack. In the
23 previous paragraph, you said: "Under the JCE to eliminate" --
24 MS. PACK: Yes.
25 JUDGE KWON: -- we do not seek a finding that Karadzic is
1 responsible for the forcible transfer of the civilian component of the
2 column -- ah, yes, you referred to the column.
3 MS. PACK: Yes.
4 JUDGE KWON: Yes.
5 MS. PACK: Yes, yes.
6 JUDGE KWON: I was mistaken.
7 MS. PACK: Different, yes. Just because of the -- by then, the
8 intent is to kill the men and boys.
9 JUDGE KWON: Thank you.
10 MS. PACK: Once we get into the JCE to eliminate.
11 JUDGE KWON: Yes, I was mistaken. You were referring to the
12 column at that time.
13 Please continue.
14 MS. PACK: So, Your Honours, then I was going to deal with the
15 other underlying charges as per the question and just go through each of
16 them in relation to the Srebrenica crime base.
17 For Counts 4, 5, and 6 --
18 JUDGE KWON: Once again --
19 MS. PACK: Perhaps I misunderstood the question.
20 JUDGE KWON: With respect to the interplay between the two joint
21 criminal enterprises, what confuses me is that your, the Prosecution's,
22 inclusion of Podrinje section in the municipality narratives. In the
23 indictment, Srebrenica was not included in the municipalities.
24 MS. PACK: No. No, it -- I think that's more a structural thing
25 rather than an actual -- the way in which we are putting our case. And I
1 think Mr. Tieger addressed the topic of Directive 4 and Directive 7 and
2 how the Podrinje summary fitted in yesterday in his submission, so I
3 wasn't going to take it any further than that.
4 But just to say in relation to the JCE to eliminate, all of that
5 is evidence and relevant to his intent, clearly his long-standing intent
6 to forcibly remove, which evolved into an intent to eliminate, destroy,
7 the Bosnian Muslim population by killing the men and removing everyone
8 else. And --
9 JUDGE KWON: Then I will ask --
10 MS. PACK: Maybe --
11 JUDGE KWON: -- Mr. Tieger to expand on the connotation of the
12 inclusion of Podrinje in the municipalities narratives.
13 Do you follow, Mr. Tieger?
14 MR. TIEGER: I think so, Mr. President. I was just about to look
15 at the indictment myself, but let me just try to tackle this quickly and
16 see if I can.
17 The Court just mentioned that Srebrenica was not included in the
18 municipalities, but the structure of the indictment is that the
19 municipalities are defined in the paragraph addressing persecutions. And
20 then Srebrenica is also included. The same structure applies to forcible
21 transfer. Then in the paragraphs I cited to you yesterday, the
22 indictment makes crystal clear that Srebrenica is part of the overarching
23 JCE, along with the municipalities, and what is charged is persecutions
24 and forcible deportation, forcible transfer. Those are in the paragraphs
25 that alluded to what I think they were -- well, they alluded to the fact
1 that the municipalities were essentially cleansed by the end of 1992 but
2 not Srebrenica, that there was still an effort to conclude or complete
3 the cleansing of the Drina, as reflected in the attacks on Cerska and
4 Konjevic Polje, the specific paragraph dealing with that. It went on to
5 say that in March 1995, under the auspices or encompassed by the
6 overarching JCE, there was a plan - Directive 7 - to then take
8 So until the point at which the JCE to eliminate commences, the
9 indictment makes clear that Srebrenica, like the municipalities, is
10 encompassed by the overarching JCE, to the extent it is charged within
11 Count 3 and within forcible transfer and deportations.
12 I hope that makes it clear. If I open the indictment up, I can
13 refer you to particular -- yeah, and I can read that directly right now.
14 For example, in Count 3:
15 "Radovan Karadzic is specifically charged for persecutions in the
16 following municipalities ..." they are enumerated.
17 Then there's a parenthesis: "(Municipalities) that will be
18 referred to that in that manner, as well as persecutions of the Bosnian
19 Muslims of Srebrenica ..."
20 And you'll find the same for Counts 7 and 8 in the first
21 paragraph, which states:
22 "Radovan Karadzic committed in concert with others ..."
23 et cetera, et cetera, "the forcible transfer and deportation of Bosnian
24 Muslims and Bosnian Croats from the municipalities and from
25 Srebrenica ..."
1 JUDGE KWON: Thank you.
2 Yes, Ms. Pack, please continue.
3 MS. PACK: And, Your Honours, in the passage of events that I was
4 describing fit, as Mr. Tieger has indicated, when you look at the
5 relevant paragraphs under the counts for forcible transfer. That's 73,
6 74, and 75. He was referring, at paragraph 73, to the events which led
7 to the forcible displacement under the overarching JCE of Bosnian Muslims
8 into the Srebrenica enclave. Then, at paragraph 74, the March 95 plan,
9 that is evidenced by Directive 7 to take over the enclave and forcibly
10 transfer and deport its Bosnian Muslim population. That's all under the
11 overarching JCE. And then the following paragraph, 75, describes the
12 formation of the JCE to eliminate.
13 So that passage of events describes the interplay. And so far as
14 the counts are concerned, I've indicated in relation to the JC -- in
15 relation to the count of forcible transfer, what sort of findings the
16 Prosecution would seek. And in relation to the other charges, I can just
17 take you through them, Your Honours. There's Counts 4, 5, and 6. He --
18 Karadzic is responsible under those counts, extermination and murder. I
19 refer to paragraph 66 of the indictment. He's responsible through his
20 membership of the JCE to eliminate for the Schedule E killings. And then
21 for Count 3, persecution, for the killings at paragraph 60(a) and the
22 forcible transfer and deportation of the women, young children, and some
23 elderly men, that's at paragraph 58 of the indictment, he's responsible
24 under the JCE to eliminate. And I refer to paragraph 58 of the
1 Your Honours, to be clear, if you find that Karadzic was a
2 participant in the JCE to eliminate, then we would seek a finding that he
3 is responsible for the killings as persecution under the JCE to
4 eliminate, the more specific JCE in relation to Srebrenica.
5 If you find that he was not a participant in the JCE to
6 eliminate, then we say, in the alternative, that he is responsible under
7 the overarching JCE for the killings and for the forcible transfer of the
8 men and the women and children for the reasons indicated by Mr. Tieger.
9 And I refer to paragraphs 52 and 53 and 57 of the indictment.
10 Similarly, for the beatings of the men prior to their execution,
11 at paragraph 60(e) of the indictment, Karadzic is responsible via the JCE
12 to eliminate. For the terrorising and abuse in Potocari, again at
13 paragraph 60(e) of the indictment, Karadzic is responsible via the JCE to
15 Your Honours, I was going to move on to the next topic unless
16 there was anything else I could say to assist.
17 JUDGE KWON: Please continue.
18 MS. PACK: I'm grateful.
19 I'm going to deal with --
20 THE INTERPRETER: Kindly slow down, please. Thank you very much.
21 MS. PACK: I'm going to deal with Karadzic's remaining arguments
22 in relation to Counts 7 and 8, forcible transfer and deportation. I'll
23 deal with the first two arguments briefly and then spend a bit of time on
24 the last.
25 First, Karadzic says he didn't intend to forcibly remove the
1 Bosnian Muslim population from the enclave. There was no plan to remove
2 them. That's the Defence final brief at paragraphs 3308 and 3315.
3 Karadzic says he took significant steps to ensure that the civilians
4 should -- could remain in Srebrenica and be safe. That's the Defence
5 brief at paragraphs 3320 and 3321.
6 Your Honours, these claims are false. It was Karadzic's
7 long-standing aim and intention, as I've discussed, since 1992 to
8 forcibly remove the Bosnian Muslim population from the Srebrenica
9 enclave, as the evidence shows. His actions evidence his intent to
10 forcibly remove the population. He issued Directive 7, signed it. He
11 established a committee to control the convoy approval process, and the
12 cite for that is D3279 and its duplicate P4543. And I refer to the
13 Defence brief at paragraph 3343, footnote 6726, and the Podrinje summary
14 at paragraph 31.
15 And, Your Honours, from March to July 1995, Karadzic's plan to
16 forcibly remove the civilian population from Srebrenica was implemented
17 through a series of coercive acts. And these are described in the
18 Podrinje summary and in the Srebrenica narrative. These acts implemented
19 Directive 7. They were restricting UNPROFOR and humanitarian aid
20 convoys. That's in the Podrinje summary at paragraphs 33 to 37.
21 Shelling and sniping, Podrinje summary paragraphs 38 to 41. And the
22 military attack on the enclave, that's the Srebrenica narrative,
23 paragraphs 5 to 10.
24 These acts had the aim and effect of making life unbearable for
25 the Bosnian Muslim civilian population, just as Directive 7 provided.
1 Karadzic approved the attack on the enclave. He ordered the take-over of
2 the town. He set up civilian structures on the 11th of July, that's
3 D2055 and P2994. And, Your Honours, his orders on the 9th July about
4 protecting the civilian population and on the 11th July about ensuring
5 that the civilian population could freely choose where they wanted to go
6 were clearly not genuine. I refer to the argument in the Defence brief,
7 paragraphs 2403, 2405, and 3319.
8 Karadzic also relies upon the statement signed in Potocari on
9 17 July by Franken and the Bosnian Muslim civilian representative,
10 Mandzic. He says that this shows he didn't know that the removal of the
11 Muslim population from Potocari was forcible. I refer to the Defence
12 brief at paragraphs 3330, 3337, 3340, and footnote 6714.
13 Your Honours, the 17 July statement did not reflect the reality
14 of the situation. It was a sham produced days later, and we have
15 addressed the context in which it was made and used in the Prosecution
16 brief at paragraphs 1034 to 1037. I don't propose repeating the
18 Second, Karadzic says his order to attack and take over
19 Srebrenica town was lawful. That's the Defence final brief, paragraphs
20 2397 to 2399.
21 Your Honours, the Prosecution has always said that the Srebrenica
22 enclave was never properly demilitarised. The ABiH did carry out
23 military operations from the enclave. I refer to the Defence brief at
24 paragraph 2397 and to the adjudicated facts on this issue, numbers 1393
25 and 1394. But any arguably legitimate military aim in ordering an attack
1 on the enclave is immaterial. There was an overriding criminal objective
2 in ordering the attack on the enclave and the attack on the town. That
3 objective was to forcibly drive out the civilian population. I refer to
4 our final brief, Prosecution final brief, at paragraph 863.
5 The indiscriminate and disproportionate attack on the Srebrenica
6 enclave and town was designed to terrorise the civilian inhabitants of
7 Srebrenica and instill fear, causing them to flee, and it did. I refer
8 to the Srebrenica narrative at paragraphs 5 to 8.
9 Third, and finally, Karadzic argues that the removal of the
10 Bosnian Muslim population from Potocari was not coercive or that this was
11 not the intention. Karadzic claims that to this day he believes that
12 there was no forcible transfer of the Muslims from Srebrenica. I refer
13 to the Defence brief at paragraph 3349.
14 I'll address a few of Karadzic's specific arguments, that the
15 UN -- first he says that the UN and Bosnian Muslim civilian leadership
16 requested that the population be transported out and that this is
17 evidence both that the Bosnian Serbs never intended to force the Muslim
18 population to leave and that the Muslim population did not leave under
19 coercive circumstances.
20 Your Honours, first the Defence argument about the intent, to
21 forcibly remove, ignores the context. From March 1995, including as a
22 result of the attack on the enclave, the Bosnian Muslim population of
23 Srebrenica was subjected to a series of coercive acts. These acts
24 implemented, as I've said, Karadzic's order number 7, as he said, to
25 Djurdjevic, Directive 7. Karadzic knew this. Other members of the JCE
1 to eliminate, like Mladic, knew this.
2 Your Honours, the mass exodus of the Bosnian Muslim population in
3 Potocari was not the result of a voluntarily request from the population.
4 The women, children, and elderly men did not leave Potocari as a result
5 of the exercise of genuine choice. The Defence relies upon video
6 recordings of the three meetings at the Hotel Fontana in Bratunac and
7 what Mladic said at those meetings. That's the Defence final brief,
8 paragraphs 2409 to 14, 2420 to 22 and 2426.
9 Your Honours, all of Mladic's statements at these meetings were
10 made in the context of his menace and his threats. The removal of the
11 Bosnian Muslim women and children from Potocari was planned and
12 organised, as the Main Staff reported to Karadzic on the 13 July:
13 "There is an organised and planned transfer of the population
14 from Srebrenica to the territory under Muslim control."
15 That's P4464 at page 3.
16 Before the third meeting at the Hotel Fontana, the one at which
17 the Bosnian Muslim representatives supposedly made it clear that they
18 wanted to leave, that's the Defence final brief reference paragraph 2425,
19 the Drina Corps were arranging buses to remove the Bosnian Muslim
20 population from Potocari under Mladic's orders. I refer to the
21 Prosecution brief at paragraph 898 and cites P4680, P4533, and D1971.
22 I remind you of what Mladic said in an intercepted conversation
23 at 12.50 on 12 July. And you can see it.
24 "They've all capitulated and surrendered and we'll evacuate them
25 all, those who want to and those who don't want to."
1 That was the truth. There was no genuine choice. The cite is
2 P6694 for the public version, Your Honours, and P4254 for the
3 confidential version.
4 The Defence brief suggests now for the first time that this
5 intercept is not an accurate record. This is in the Defence brief at
6 paragraph 2431. Karadzic had the opportunity to put this claim to KDZ357
7 in cross-examination but he didn't. And, Your Honours, I refer you to
8 KDZ357's evidence about how this conversation was taped, played back, and
9 transcribed. That's P4628, pages 30 to 34. There's no doubt that this
10 is an accurate record of Mladic's conversation.
11 The Defence refers to another intercept between two unknown
12 conversants. D2023, that's at paragraph 2428 of the Defence brief.
13 Your Honours, neither conversant can possibly be Mladic. That's plain.
14 Mladic's intent is revealed by P6694, the intercept which identifies him
15 as a speaker.
16 Your Honours, I also refer you to the legal principle on this
17 topic with which, of course, you're familiar, that an agreement concluded
18 between military commanders or other representatives of the parties in a
19 conflict per se cannot make a displacement lawful. In addition, the
20 assistance of humanitarian agencies, like the UN, in facilitating
21 displacements does not of itself render an otherwise unlawful transfer
22 lawful. One cite for that is the Popovic Trial Judgement at
23 paragraph 897. I think the Defence would accept that, but it is not
24 absolutely clear from the brief.
25 Next, Karadzic says that had the civilian population sheltered in
1 their homes or had the UN or the population requested that they be
2 allowed to stay in Srebrenica, there is no evidence that the Bosnian
3 Serbs would have nevertheless transported them out. That's the Defence
4 brief at paragraph 2438. This claim is false and utterly baseless. I'll
5 give you an example. On 13 July, the elderly and infirm who had remained
6 at the hospital in Srebrenica were forced to leave, threatened with
7 death. I refer you to the Srebrenica narrative, paragraph 30, and the
8 evidence of Joseph Kingori at P4140, paragraphs 185 to 186.
9 On 17th July, as the Drina Corps command reported, two women who
10 returned from Kladanj were shot and killed because "they refused to
11 surrender and began to run away." That's P3994, page 2.
12 Next, Karadzic says, the Bosnian Serbs were not forcing the
13 people in Potocari onto buses. That's the Defence brief, paragraph 2432.
14 Your Honours, the entire bussing process was carried out in the
15 presence and under the supervision of Bosnian Serb forces who had taken
16 the enclave and surrounded Potocari. I refer to the Srebrenica
17 narrative, paragraphs 11 to 27.
18 The civilian population was under constant threat and
19 intimidation. The use of dogs enhanced the atmosphere of oppression. I
20 refer to the evidence of Momir Nikolic at D2081, page 2; Mirsada Malagic
21 at P356, page 25; P4934, which Kovac's order about the dogs; and Kingori
22 at P4140, paragraph 158. In addition, KDZ167 at P354, page 6, and
23 Sera Ibisevic, at P401, page 2.
24 The situation in Potocari was only worsened because the Bosnian
25 Muslim population were rendered utterly helpless, vulnerable, and
1 helpless as DutchBat, the UN force designated to protect them, was
2 disabled. That's the Srebrenica narrative, paragraph 33.
3 Bussing, the final act, confirmed that the Bosnian Muslims
4 population had no option but to leave. And women and children were also
5 forced on to buses. I refer to the Srebrenica narrative, paragraph 15,
6 and to the evidence described in that paragraph, I add the following
7 references: Patelski at P4173, paragraph 25; Kingori at P4140,
8 paragraph 172; and Malagic at transcript 23488-23489.
9 Your Honours, most significantly the women, children, and elderly
10 were forcibly separated from their men and boys. These separations were
11 part of the process. Let me remind you of the evidence of KDZ265, the
12 mother whose 14-year-old child was taken from her as she was moved on to
13 the buses. There was nothing about this process that involved an
14 exercise of genuine choice.
15 Your Honours, there is sufficient evidence upon which you must
16 find Karadzic is guilty of the crimes charged in Counts 7 and 8 in
17 relation to Srebrenica.
18 Finally, Your Honours, returning to Count 2, genocide. Karadzic
19 marked the Bosnian Muslim population of Srebrenica for extinction. His
20 subordinates stripped the men and boys of their personal belongings and
21 identification and deliberately and methodically killed them, solely on
22 the basis of their identity. His forces caused serious physical and
23 mental harm to the men who survived miraculously and to the women and
24 children of Srebrenica, women and children who were separated from their
25 sons, fathers, husbands, brothers, taken from their homes, their lives
1 shattered. In the Prosecution brief we have discussed the genocidal
2 acts, the murders, and the serious physical and mental harm suffered by
3 the men who survived and the women and children who endured the
4 separations, the murders of their men and boys and who were removed from
5 the Srebrenica enclave en masse. The men who survived suffered trauma
6 and injury; their fear and their anguish as they waited to die is
7 unimaginable. KDZ069 survived. Mr. Tieger's referred to him already.
8 He's said as others were being killed:
9 "I was praying that I be killed too because I was in terrible
10 pain. But I dare not call out to them. So I just thought my mother
11 would never know where I was as I was thinking that I would like to die."
12 That's P339, page 41.
13 The collective sudden suffering of the survivors who lost so many
14 of their men, their bodies missing for so many years, has been described
15 as Srebrenica syndrome. I refer to the evidence of Ibrahimefendic.
16 That's P4646. Prosecution witness Mirsada Malagic described how "with
17 the fall of Srebrenica -- rather, when it was taken by Serb soldiers and
18 when the Serb soldiers took that so-called protected area by the United
19 Nations; from the face of the earth were wiped off three generations
20 of men in the cruellest way possible." Cite is P356, page 44.
21 Remember KDZ265. Again, I've talked about her evidence. She was
22 asked when she testified in the Krstic case:
23 "What do you think has happened to your husband and your two
24 sons?" That's P367, page 20.
25 She imagined her son, her 14-year-old son, his little hands
1 picking strawberries, reading books, going to school, going on
2 excursions. She said, Every morning I wake up, I cover my eyes, not to
3 look at other children going to school and husbands going to work,
4 holding hands.
5 Your Honours, the evidence condemns Mr. Karadzic. He bears
6 responsibility for the pain and suffering of these women, for the murders
7 and the pain and the suffering of the men and the women and the children
8 of Srebrenica. He bears responsibility for their suffering which is
9 lasting and devastating. Your Honours, he bears responsibility; he is
10 guilty of genocide. And I refer back to Mr. Tieger. Thank you.
11 JUDGE KWON: Thank you, Ms. Pack.
12 Yes, Mr. Tieger.
13 MR. TIEGER: Thank you, Mr. President.
14 You have heard over the course of this case what the president of
15 the Red Cross rightfully called a sad picture. In the municipalities,
16 destroyed communities, thousands and thousands of civilians murdered,
17 many thousands more tormented and abused in the abominable camp network.
18 Hundreds of thousands forcibly expelled turned into homeless refugees.
19 Sarajevo, the terrorisation of an entire European capital city for years
20 through murderous bombardments, random shellings, or by picking men,
21 women, and children off one by one. Hostages, using the lives of human
22 beings as bargaining chips in front of the entire world. And Srebrenica,
23 as you've just heard, the mass executions of thousands of men and boys,
24 coupled with the by then practiced efficiency of mass expulsion of the
25 remainder of the population. Cruelties upon countless victims, one by
1 one by one by one. Individual tragedies collectively too vast to
2 comprehend. And what all these crimes have in common is
3 Radovan Karadzic, who once proudly took credit for what his army, his
4 police, his civilian authorities had done to implement his policy, but
5 who now tries to run from them. The time has come for Karadzic to face
6 responsibility for those acts. The insincerity of his expression of
7 regret and "moral responsibility" for the sufferings inflicted on his
8 victims is exposed by his revisionist defence orchestrated years ago,
9 mendacious claims that rub salt in the wounds of each and every living
10 victim, many of whom suffer to this day without their loved ones in
11 continuing physical and emotional pain, all trying with varying success
12 to face down the nightmare of the past on a daily basis.
13 Your Honours, justice for all these victims requires nothing
14 short of a life sentence. This concludes the Prosecution's submissions,
15 Mr. President.
16 JUDGE KWON: Thank you, Mr. Tieger.
17 We'll adjourn for today and tomorrow we'll continue at 9.00.
18 --- Whereupon the hearing adjourned at 4.09 p.m.,
19 to be reconvened on Wednesday, the 1st day of
20 October, 2014, at 9.00 a.m.