Tribunal Criminal Tribunal for the Former Yugoslavia

Page 47693

 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]

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 47694

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 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

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


Page 47695

 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.

Page 47696

 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

Page 47697

 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

11     Chamber.

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 ... ?

Page 47698

 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,

Page 47699

 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.

Page 47700

 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 ..."

Page 47701

 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

 7     cousin.

 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,

Page 47702

 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

11     population.

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

Page 47703

 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

 3     incidents.

 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."

Page 47704

 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

Page 47705

 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 --

Page 47706

 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?

Page 47707

 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?

Page 47708

 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

Page 47709

 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

Page 47710

 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

 4     stated:

 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

Page 47711

 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

18     reported:

19             "Sarajevo is calm.  The present cease-fire is by far the most

20     effective ever made."

21             And:

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

Page 47712

 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

Page 47713

 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

Page 47714

 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.

Page 47715

 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

Page 47716

 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.

Page 47717

 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

Page 47718

 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

Page 47719

 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

Page 47720

 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

Page 47721

 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

Page 47722

 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

Page 47723

 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.

Page 47724

 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

18     founder.

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

Page 47725

 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,

Page 47726

 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

Page 47727

 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

Page 47728

 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

25     Serbs."

Page 47729

 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

Page 47730

 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

Page 47731

 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

Page 47732

 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

 9     well.

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

Page 47733

 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

Page 47734

 1     argument.

 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

11     positions.

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

Page 47735

 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

Page 47736

 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

Page 47737

 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

24     39233.

25             Nevertheless, in his report Poparic drew the potential field of

Page 47738

 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

Page 47739

 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.

Page 47740

 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

Page 47741

 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

 8     11.38.

 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

Page 47742

 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

Page 47743

 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

Page 47744

 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

Page 47745

 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

Page 47746

 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

Page 47747

 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

Page 47748

 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

Page 47749

 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

18     it?

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


Page 47750

 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

14     briefly?

15                           [Private session]

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 47751

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

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


Page 47752

 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

 6     challenges.

 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

12     session.

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.

Page 47753

 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.

Page 47754

 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.

Page 47755

 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,

Page 47756

 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

Page 47757

 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

Page 47758

 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

Page 47759

 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

12     territory.

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

Page 47760

 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

Page 47761

 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.

Page 47762

 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

Page 47763

 1     deliberately screwed and unscrewed the ring."  That's page 38592 to

 2     38593.

 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.

Page 47764

 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

Page 47765

 1     explain how two imprecise weapons, unguided rockets and air bombs, were

 2     allegedly made far more precise when fused together in an improvised

 3     manner.

 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

Page 47766

 1     32773.

 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

25     submissions.

Page 47767

 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,

Page 47768

 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

Page 47769

 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.

Page 47770

 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.

 9     First:

10             "Everything is going according to plan and do not worry."  That's

11     P4629.

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

Page 47771

 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

Page 47772

 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

Page 47773

 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

13     slide.

14             "All the goods must be placed inside the warehouses before 12.00

15     tomorrow.

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

Page 47774

 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.

Page 47775

 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.

Page 47776

 1             That day the organised murders in Zvornik began.  Approximately

 2     1.000 men at Orahovac murdered, approximately 1.000 men at Petkovci

 3     murdered.

 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.

Page 47777

 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

Page 47778

 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

17     read.

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.

Page 47779

 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

Page 47780

 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

15     intent.

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.

Page 47781

 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

Page 47782

 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

Page 47783

 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.

Page 47784

 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

23     obligations."

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

Page 47785

 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

Page 47786

 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.

Page 47787

 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

Page 47788

 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

14     findings?"

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

Page 47789

 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

Page 47790

 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

Page 47791

 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

Page 47792

 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

Page 47793

 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

15     76.

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."

Page 47794

 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

Page 47795

 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

Page 47796

 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,

Page 47797

 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

Page 47798

 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

19     list.

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.

Page 47799

 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

23     8.

24             Documentary and intercept evidence also supports the

25     Prosecution's case.  One of the most compelling pieces of evidence about

Page 47800

 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.

Page 47801

 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

Page 47802

 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

17     narrative.

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

Page 47803

 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

Page 47804

 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

Page 47805

 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

Page 47806

 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

 7     Srebrenica.

 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 ..."

Page 47807

 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

25     indictment.

Page 47808

 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

14     eliminate.

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

Page 47809

 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.

Page 47810

 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

17     arguments.

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

Page 47811

 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

Page 47812

 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."

Page 47813

 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

Page 47814

 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

Page 47815

 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

Page 47816

 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

Page 47817

 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

Page 47818

 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.