1 Thursday, 27 November 2003

2 [Appeal Proceedings]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 9.33 a.m.

6 JUDGE MERON: Please be seated.

7 We will now start the second day of our hearings of the merits of

8 the appeal of Mr. Krstic, and we will start from a -- from the Defence,

9 who will continue with their submissions.

10 The counsel for the Defence.

11 MR. SEPENUK: [Microphone not activated] Thank you, Mr.

12 President. Good morning, Your Honours.

13 Just very briefly, after I finish my argument, Your Honours, my

14 colleague, Mr. Petrusic, is --

15 THE INTERPRETER: Microphone, please.

16 MR. SEPENUK: -- on and how General Krstic never ordered troops

17 from the Bratunac Brigade to assist in those executions or the later

18 executions at Pilica Dom. Mr. Petrusic will also speak briefly to the

19 issue of sentencing. I hope I learned my lesson yesterday about the

20 rapidity of my speech, and I will really make quite an effort this

21 morning not to overburden the interpreters.

22 Just very briefly by way of recapitulation, we were talking about

23 the Commission of Experts' report, the report that said that destroying

24 the social fabric of the community by killing the elite, the leaders, and

25 the military personnel, coupled with other heinous crimes such as

1 deportation, can constitute genocide. That was in the report of the

2 Commission of Experts. That was adopted precisely by the Trial Chamber

3 in this case. Our claim is that the report of the Commission of Experts,

4 both in terms of providing for qualitative genocide and also in terms of

5 providing genocide for deportation, is an error, and we tried to show

6 that by, we hope, a close analysis of the genocide statute and its

7 drafting history.

8 I now want to talk about the Commission of Experts, this

9 organisation that had so much impact on the opinion, because we want to

10 show in essence that it was a fact-gathering body, that it was not a body

11 meant to enunciate lasting principles of law for a court to follow. And

12 yesterday I was speaking about the -- the formation of the group, the

13 chairmanship of Professor Fritz Kalshoven, and then following his

14 resignation the chairmanship of Sherif Bassiouni. And the commission

15 commenced its activities in November 1992 and concluded its work in April

16 1994. The commission furnished two interim reports to the

17 Secretary-General, providing a record of grave breaches of the Geneva

18 Convention and other violations of international humanitarian law. It was

19 on the basis of one of these interim reports of the Commission of Experts

20 that the Secretary-General noted that violations of international law had

21 been committed in the territory of the former Yugoslavia, and that view

22 of this, the establishment of an international tribunal was suggested to

23 bring justice to those persons responsible.

24 The final report of the commission included a survey of the

25 Commission's work since its inception, its substantive findings of

1 alleged crimes of ethnic cleansing, genocide, and other violations, and

2 its views on selected legal issues of particular significance in this

3 factual context. In short, the Commission of Experts did indeed render

4 valuable service to the Secretary-General and the Security Council in its

5 mission of gathering evidence to bring perpetrators of crimes to justice.

6 Our criticism of the Commission of Experts has to do only with its

7 various legal findings and comments which -- which form a very small part

8 of this 82-page report, which we have reprinted in full in our Annex 3.

9 However, I think it's fair to say that the Commission of Experts

10 never intended that its comments on legal issues, including its comments

11 on genocide, should be taken as the last word on the subject. Indeed,

12 it's specifically stated in Section 2 of the report entitled "Applicable

13 Law," and that's in I11, part I11 of Annex 3, and I quote paragraph 41.

14 And here's where I've been told, Your Honours, that I must slow down,

15 when I'm on these quotes. So I intend to, with your permission.

16 "The commission that has chosen to comment on selected legal

17 issues because of their particular significance for understanding the

18 legal context relating to violations of international humanitarian law

19 committed in the territory of the former Yugoslavia. The Commission's

20 mandate is to provide the Secretary-General with its conclusions on the

21 evidence of such violations and not provide an analysis of the legal

22 issues. It will be for the International Tribunal to make legal findings

23 in connection with particular cases."

24 I should add that two cases decided by this Tribunal have already

25 called into question one of the findings of the Commission of Experts. A

1 considerable part of the Commission of Experts' report had to do with the

2 events in the Prijedor region of Bosnia. The commission had concluded -

3 and this is in section I41, paragraph 182; it concluded as follows -

4 "It is unquestionable that the events in Opstina Prijedor since

5 30 April 1992 qualify as crimes against humanity. Furthermore, it is

6 likely to be confirmed under due process of law that these events

7 constitute genocide."

8 The events in Prijedor, particularly in the Keraterm and Omarska

9 concentration camps have been the subject of litigation before this

10 Tribunal, notably in the Sikirica case and the Stakic case. In both

11 cases, the Trial Chamber, after carefully considering the evidence, ruled

12 that they were indeed crimes against humanity committed but that the

13 events involved did not constitute genocide, contrary to the suggestion

14 contained in the report of the Commission of Experts. The Commission's

15 report was based on events which occurred during the period of its

16 existence, from 1992 through 1994. The Commission conducted a number of

17 on-site investigations, including mass grave exhumations in Vukovar and

18 in other areas, rape and sexual assault investigations, the Battle of

19 Dubrovnik investigation, investigation of ethnic cleansing in Prijedor,

20 as I said before, and others. It was in this context of murders,

21 destruction of property, and ethnic cleansing that the Commission

22 compiled its report.

23 Not long after its report was submitted, the former chairman of

24 the Commission, Professor Bassiouni, wrote an article in the Criminal Law

25 Forum -- it's Volume V, starting at page 279. And by the way, we didn't

1 reproduce that. Looking back now, I wish we had. But I think it's okay

2 because the Prosecutor has in its many attachments includes a book by

3 Professor Bassiouni "The Law of the Criminal Tribunal for the Former

4 Yugoslavia" and it's in the Prosecutor's attachments. And that part from

5 the International Law Journal is quoted right there. And here's what

6 Professor Bassiouni had to say.

7 He said, "With respect to the crime of genocide, the Commission

8 took the position that the definition of this crime in the Genocide

9 Convention of 1948 is not static. Rather, the definition is sufficiently

10 pliable to encompass not only the targeting of an entire group as stated

11 in the Convention, but also the targeting of certain segments of a given

12 group, such as the Muslim elite or Muslim women."

13 Our argument here is that, with all respect to Professor

14 Bassiouni, it is evident that by claiming that the definition of genocide

15 was not static and was sufficiently pliable to include the targeting of

16 certain sections of a given group, Professor Bassiouni and also the

17 Commission of Experts has given an overly broad definition to the crime

18 of genocide and, in our submission, has paid insufficient respect to the

19 dictates of the 1948 Genocide Convention and its commentaries. Nowhere

20 in the lengthy Commission of Experts report is there any analysis of the

21 provisions of the 1948 Genocide Convention, as I have previously related

22 to this Appeals Chamber.

23 I suggest that the Commission of Experts had a thesis to expound,

24 and that is this: That the definition of the crime, that the definition

25 of genocide, should be liberally interpreted to cover as both genocide

1 and crimes against humanity the incidents of murder, violation, and

2 ethnic cleansing which took place in the former Yugoslavia during the

3 period 1992 through 1994 and presumably thereafter.

4 Our submission is that, to the contrary, the definition of

5 genocide and the evolution of the different drafts of the Genocide

6 Convention unmistakably show that the drafters of the Genocide Convention

7 made genocidal acts solely -- acts aimed slowly at the physical or

8 biological destruction of the group. The convention specifically

9 eliminated the proposal of Professor Lempkin, that the forced and

10 systematic exile of individuals representing the leadership of the group

11 should constitute genocide. They specifically rejected that. The

12 killing of the leaders of the group, the elite of the group, as

13 characterised by Professor Bassiouni in his article that I quoted,

14 relate, if at all, to that portion of the genocide statute, which as

15 originally written at the draft convention would have prohibited acts

16 aimed at "preventing the preservation or development" of the group.

17 There's no question that killing the leaders of a group or its

18 military personnel, which is further suggested in the Trial Chamber's

19 opinion, could certainly in the short run affect the "preservation or

20 development" of the group. But this language was eliminated by the ad

21 hoc committee and the final draft covered acts aimed solely at physical

22 or biological destruction. Moreover, we note that some respected

23 commentators have criticised the rationale of the Commission of Experts

24 that one can legitimately base a finding of genocide on destruction of

25 the group's leadership. Mr. Payam Akhavan, formerly the Chief Legal

1 Advisor for the Office of the Prosecutor at the ICTY, wrote in 1998 in an

2 article submitted to the American Society of International Law to note

3 the 50th-year anniversary of the passage of the 1948 Genocide Convention,

4 as follows, and this is in Part K, page 11 of Annex 3:

5 It has also been suggested," said Mr. Akhavan, "that the

6 destruction of a relatively small number or proportion of a group should

7 qualify as genocide when those destroyed constitute the intellectual,

8 political, religious, or other leadership element of a group. The

9 destruction of a group's leadership, it is argued, represents a loss to

10 the group that is disproportionate to the actual numbers killed. The

11 problem with this functional approach is the implicit, arguably elitist,

12 assumption that the lives of individuals with a particular status are

13 more important than the lives of others to the survival of a group."

14 By the same token, Professor William Schabas, in his November

15 2000 article in the Fordham International Law Journal, cited and attached

16 to our appeal brief, which we've mentioned before, stated as follows:

17 "The significant-part approach inevitably leads to speculation about what

18 the killing of one or the other strata in a community will do to its

19 survival. Perhaps killing the leaders will do the trick. But somebody

20 bent on destroying a group might more logically focus on the children or

21 the women, as they ensure the group's survival. And this results in

22 value judgements about how important one or another group may be to the

23 survival of the community."

24 In Jelisic, the Trial Chamber held that Jelisic killed at random

25 and without a particular intent to destroy the Bosnian Muslims as a

1 group. According to the Trial Chamber in Jelisic, it might be possible

2 to infer the requisite genocidal intent from the "desired destruction of

3 a more limited number of persons selected for the impact that their

4 disappearance would have on the survival of the group as such," citing as

5 authority for this proposition, of course, the report of the Commission

6 of Experts.

7 Ultimately, the Trial Chamber found that it was not possible "to

8 conclude beyond all reasonable doubt that the choice of victims arose

9 from a precise logic to destroy the most representative figures of the

10 Muslim community in Brcko to the point of threatening the survival of

11 that community."

12 The Appeals Chamber held that the evidence was sufficient to

13 warrant a finding of genocide but really didn't expound significantly on

14 the substantive law relating to genocide. In Sikirica, the Court

15 concluded that the intent to destroy a substantial number of Bosnian

16 Muslims or Bosnian Croats could not properly be inferred and that the

17 case was really one of ethnic cleansing which did not cross the line from

18 persecution to genocide. On the qualitative aspect of the case, the

19 Sikirica Chamber held that the killing of a limited number of Bosnian

20 Muslims who had acted in defence of their villages would not

21 significantly impact the survival of the Bosnian Muslim population as a

22 whole in Prijedor.

23 So in neither Jelisic or Sikirica did the decision on the

24 so-called qualitative aspect of genocide constitute the ratio de

25 decidendi of the case. It was not, if I understand that Latin term

1 correctly, the "reason why the case was decided as it was," citing from

2 Judge Shahabuddeen's recent separate opinion in the Ojdanic case. Nor

3 has there been an Appellate Chamber decision on whether the qualitative

4 test, as proposed by the Commission of Experts and adopted by the Trial

5 Chamber, should be used in determining whether genocide has been

6 committed. In short, I believe that the significant part qualitative

7 approach recommended by the Commission of Experts is not embedded in the

8 law of the Tribunal to this point, and I respectfully suggest that it

9 should not be.

10 I should add that even if the Appeals Chamber were to deem it

11 appropriate to consider the qualitative approach set forth in the

12 Commission of Experts' report, we submit that the result would still not

13 warrant a finding of genocidal intent in this case. There was no

14 evidence introduced at the Krstic trial that Bosnian Serb forces sought

15 to eliminate the leadership of the group. As Mr. Schabas stated in his

16 law review article - and I quote - "But in Krstic, where the victims were

17 men and boys of military age, there was no real suggestion that they were

18 community leaders or representative figures. Indeed, it would seem

19 likely that the leaders of the community would be men above" - and that's

20 italicised - "above military age. There was unchallenged evidence that

21 General Krstic had organised the transfer of women, children, and the

22 elderly from the Srebrenica area so that they would not be affected by

23 the coming holocaust. Did General Krstic also transfer the wise old

24 leaders of the community? The judgement doesn't say." And nor was there

25 ever any evidence introduced by the Prosecution at the trial on that

1 issue.

2 In its opinion, the Trial Chamber does state that "extermination

3 specifically directed against law enforcement and military personnel" may

4 affect a significant section of the group in that its renders the group

5 at large defenceless against other abuses of a similar or other nature -

6 again, quoting verbatim from the Commission of Experts' report. We note

7 first that the elderly men, women, and children were safely transported

8 out of Srebrenica during the period 11 and 12 July 1995 before the mass

9 killings of the Bosnian Muslim military-aged men began.

10 Second, there is no reason why law enforcement and military

11 personnel should be treated any differently from other so-called

12 significant sections or leaders of the community. Indeed, since it is

13 the business of law enforcement and military personnel to be involved in

14 battles and war, there is less reason, we suggest, to single them out

15 from the significant section of the civilian population.

16 In Sikirica, the Trial Chamber rejected the submission of the

17 Prosecution that all those Bosnian Muslims who were active in the

18 resistance of the takeover of their villages should be treated a leaders.

19 Said the Court in Sikirica, "acceptance of that submission would

20 necessarily involve a definition of leadership so elastic as to be

21 meaningless." Further, according to the Trial Chamber, the death of the

22 Bosnian Muslim men "precluded any attempt by the Bosnian Muslims to

23 recapture the territory." Paragraph 595.

24 As shown in earlier submissions, the crime of genocide, the crime

25 of crimes, is not about making an impact on part of a group or

1 eliminating part of a group's ability to live in a specific area or,

2 indeed, to recapture the area. The offence requires an intent to destroy

3 the group in whole or in part as such, and that conclusion was one that

4 could not be justified by the evidence presented to the Trial Chamber.

5 Finally, Your Honours, I'd like to turn to the question of

6 General Krstic individually. The Trial Chamber held that there was a

7 joint criminal enterprise to commit genocide. The Trial Chamber also

8 held that General Krstic shared that genocidal intent. We believe

9 strongly that that was error.

10 As a backdrop in determining General Krstic's intent, I should

11 like to begin our discussion by reviewing when and under what

12 circumstances the plan to kill all of the Bosnian Muslim men was

13 conceived.

14 As the Trial Chamber noted - paragraph 360 - "The Prosecution

15 built its case on the theory that the plan to execute the Bosnian Muslim

16 men of Srebrenica was devised in the evening hours of 11 July and the

17 early morning hours of 12 July 1995, once the VRS became aware of the

18 presence of men amongst the crowd at Potocari." At that time, it is

19 undisputed that General Krstic was not the corps commander but the chief

20 of staff to the corps commander, General Zivanovic.

21 The Prosecution contended that the execution plan, given its

22 scale and level of detailed organisation involved, must have been

23 conducted as a "military operation" and that General Krstic was involved

24 in the development of the plan from the outset. That's paragraph 361.

25 This argument was specifically rejected by the Trial Chamber as follows -

1 again, paragraph 361:

2 "The Trial Chamber does not accept this argument. Whereas there

3 is ample direct evidence showing that General Krstic was involved in

4 organising matters relating to the transportation of the Bosnian Muslim

5 women, children, and elderly out of Potocari, there is no corresponding

6 evidence showing him involved in making arrangements for the executions.

7 He was not seen or heard giving any orders that could be construed as

8 arranging the detention sites, guards, blindfolds, ligatures, or other

9 matters relating specifically to the executions. To the contrary, during

10 this period General Krstic was engaged as the commander for the operation

11 at Zepa, which was marshal and a new forward command post to establish.

12 The fact that General Krstic, along with several units of the Drina

13 Corps, was concentrating on Zepa just as the plan for the Srebrenica

14 executions went into operation, suggest that the plan to kill the Bosnian

15 Muslim men was not conceived as a military operation to be primarily

16 implemented by the Drina Corps."

17 Rather, the Trial Chamber concluded that on the basis of the

18 evidence, the "Trial Chamber cannot discount the possibility that the

19 execution plan was initially devised by members of the VRS Main Staff

20 without consultation with the Drina Corps command generally and

21 General Krstic in particular. That's paragraph 362 of the judgement.

22 The recently admitted additional evidence submitted by the

23 Defence - and that's tabs 1, 2, and 3, attached to the Rule 115 motion -

24 corroborates the Trial Chamber's finding that the Drina Corps and

25 General Krstic in particular had little to do with the capture of the

1 thousands of Bosnian Muslim men which took place on 13 July 1995. The

2 Zvornik police reports, received by the Defence well after the judgement

3 in the case, show that the capture and attempted liquidation of about

4 8.000 Muslim soldiers, as stated in the police report, was being done

5 solely by MUP units "without the cooperation or assistance from VRS in

6 blocking and annihilation of the huge number of enemy soldiers."

7 So having stated that the capture and annihilation of the Bosnian

8 Muslim men were primarily a Main Staff operation, without the assistance

9 of the Drina Corps as of 13 July 1995, how did the Trial Chamber conclude

10 that "by the evening of 13 July at the latest, General Krstic knew that

11 the Muslim men were being executed at a number of separate sites"? This

12 was the basis for the Trial Chamber's conclusion - and I quote - "On 13

13 July, when he was preparing the military operation at Zepa which

14 commenced the next day, General Krstic found out that thousands of men

15 were fleeing in the column toward the woods towards Tuzla, thousands of

16 Srebrenica men were fleeing in the column toward the woods towards Tuzla

17 and had been captured on the territory of the Drina Corps. As the

18 then-corps chief of staff, "the primary coordinator of the corps

19 activity," General Krstic must have been aware that no adequate measures

20 were being taken to provide for shelter, food, water, and medical care

21 for several thousand captured men and that no arrangements or

22 negotiations were ongoing for their prisoner-of-war camp --

23 prisoner-of-war exchange."

24 The Trial Chamber concluded - and I quote, paragraph 622 - "On

25 that basis alone, the Trial Chamber must conclude that by the evening of

1 13 July at the latest, General Krstic knew that the Muslim men were being

2 executed at a number of separate sites and that none had been allowed to

3 enter government-held territory along with the women, children, and

4 elderly. General Krstic could only surmise that the original objective

5 of ethnic cleansing by forcible transfer had turned into a lethal plan to

6 destroy the male population of Srebrenica once and for all."

7 As we've stated in our brief, the Trial Chamber could just as

8 easily have reached what we regard as the more logical conclusion and one

9 consistent with the presumption of innocence, and that is that

10 General Krstic would have known that the prisoners were not given proper

11 care and treatment, given the lack of facilities and manpower to do so.

12 The evidence showed that the capture and detention of the men was

13 primarily an MUP staff operation by the Main Staff. Why should the Trial

14 Chamber, as Mr. Schabas put it in his Law Review article at page 50, have

15 "presumed" that General Krstic knew of the summary executions solely

16 because there were inadequate facilities to house and care for the number

17 of Bosnian Muslim men who had been captured by MUP forces? This is just

18 one of the many presumptions that the Trial Chamber engaged in as to

19 General Krstic's individual liability; as I mentioned the other day,

20 we've set them forth in detail on pages 31 and 32 of our appellant brief,

21 and I will visit one of them a little bit later on.

22 Here again, the Trial Chamber did not, as required by the Delalic

23 appeal decision, adopt the conclusion from the evidence that was

24 consistent with innocence. The conclusion reached by the Trial Chamber,

25 we respectfully suggest, certainly was not the "only reasonable

1 conclusion available" under the Delalic rationale.

2 The question to be determined is whether the Prosecution proved

3 beyond a reasonable doubt that General Krstic intended to destroy in part

4 the Bosnian Muslim group as such. Our submission is that there was

5 neither direct nor circumstantial evidence which showed that

6 General Krstic intended to destroy what the Trial Chamber held to be a

7 distinct part of the Bosnian Muslim group; that is to say, the Bosnian

8 Muslims at Srebrenica. The majority of the Bosnian Muslims at

9 Srebrenica -- some 15.000 to 25.000 women, children, and elderly men --

10 were transported by bus from Srebrenica to Bosnian Muslim territory under

11 strict orders by General Krstic that "not a hair on their head should be

12 harmed." This was consistent with General Krstic's reputation for humane

13 treatment which characterised his entire military career, as we have set

14 forth in detail in our brief, and was noted to be true by the Trial

15 Chamber.

16 The Trial Chamber specifically found, at paragraph 420, that

17 "General Krstic appears as a reserved and serious career officer who is

18 unlikely to have ever instigated a plan such as the one devised for the

19 mass execution of Bosnian Muslim men following the takeover of Srebrenica

20 in July 1995. Left to his own devices, it seems doubtful that

21 General Krstic would have been associated with such a plan at all."

22 General Krstic testified for a number of days at the trial.

23 After hearing and observing General Krstic, the Trial Chamber made the

24 following conclusions, at paragraph 724 - and I quote - "The Trial

25 Chamber's overall assessment is that General Krstic is a professional

1 soldier who willingly participated in the forcible transfer of all women,

2 children, and elderly from Srebrenica but would not likely, on his own,

3 have embarked on a genocidal venture. His own commander, General Mladic,

4 was calling the shots and personally supervising the killings. General

5 Krstic's participation in the genocide consisted primarily of allowing

6 Drina Corps assets to be used in connection with the executions from 14

7 July onwards and assisting with the provision of men to be deployed to

8 participate in executions that occurred on 16 July 1995. General Krstic

9 remained largely passive in the face of knowledge of what was going on.

10 When pressured, he assisted the effort to deploying some men for the

11 task, but on his own, he would not likely have initiated such a plan."

12 We suggest that the language of the Trial Chamber almost standing

13 alone refutes the idea that General Krstic intended to commit genocide.

14 "One who remains largely passive," in the words of the Trial Chamber, can

15 hardly be equated to one who has the genocidal intent to destroy a group

16 of human beings. The Nazis were not largely passive. The extermination

17 of the Jews and the Gypsies and others was their passion. The same is

18 true with the Hutu extermination of the Tutsis in Rwanda, where those

19 ordering and taking part in the killings did so with fervour and

20 vengeance, specifically to eliminate every man, woman, and child they

21 could find with the Tutsi population.

22 In addition, the Trial Chamber said that "when pressured"

23 General Krstic assisted in the effort of deploying some men to the task,

24 clearly referring to the allegation that General Krstic assisted in the

25 executions at Branjevo Farm -- and then by implication, the later

1 executions at Pilica Dom, allegedly by the same people -- by making

2 arrangements for members of the Bratunac Brigade to assist in those

3 executions. As Mr. Petrusic will shortly argue, the Prosecution never

4 proved beyond a reasonable doubt -- in our submission, they never proved

5 at all -- that General Krstic ever dispatched any member from the

6 Bratunac Brigade to aid in these executions. We think the evidence is

7 overwhelming on that in our favour.

8 But the point here is that even if the Appeals Chamber should

9 adopt that finding - we certainly hope you don't, but even if you do

10 adopt it - it shows at most General Krstic's knowledge that Bosnian

11 Muslim men were being executed. It does not show a genocidal intent to

12 destroy a part of the Bosnian Muslim group as such. The Trial Chamber

13 found that the conversation between General Krstic and Colonel Beara, the

14 Main Staff officer, to be the "aggressive apex" of General Krstic's

15 participation in the killing plan. The conversation clearly supports the

16 Defence argument that General Krstic did not agree with the actions of

17 the Main Staff.

18 The Trial Chamber found that General Krstic's statement to

19 Colonel Beara, "You guys fucked me up so much," was evidence that the

20 Main Staff was "primarily directing the executions, albeit calling upon

21 the resources of the Drina Corps command." When coupled with his next

22 comment to Colonel Beara that "Fuck it, now I'll be the one to blame," it

23 is evident that General Krstic did not have a desire to execute

24 prisoners, let alone an intent to commit genocide, but the quite

25 prescient belief that he would be blamed for it even though it was an

1 Main Staff action that he wanted no part of.

2 The Appeals Chamber will recall that in that conversation,

3 General Krstic referred Colonel Beara to other sources for supplying the

4 men needed, including the MUP, and finally stated without any commitment,

5 "I'll see what I can do." Again, our submission is that General Krstic

6 did nothing after this conversation to furnish any men from the Bratunac

7 Brigade to assist in the executions. But again, if the Appeals Chamber

8 finds that he did, the assistance was reluctant in the extreme. The

9 Trial Chamber correctly characterised General Krstic's conduct as

10 "largely passive" and correctly stated that if he did take part in

11 supplying men for the executions, he did so "when pressured."

12 How does reluctant and passive participation amount to genocidal

13 intent, an intent to destroy a part of the Bosnian Muslim group as such?

14 Our respectful submission is that it does not, and we ask the Appeals

15 Chamber to reverse the Trial Chamber's finding that General Krstic

16 intended to commit genocide.

17 Our submission is that the Trial Chamber's interpretation of the

18 genocide statute violates two fundamental legal principles: First, the

19 Trial Chamber's interpretation is inconsistent with the principle of in

20 dubio pro re which provides that as to the case of doubt as to the

21 content or meaning of a statute or rule, the interpretation most

22 favourable to the accused should be adopted. And I refer to the more

23 recent decision in the Ojdanic opinion, paragraph 27. Nowhere is this

24 better illustrated than in the Trial Chamber's conclusion, based on the

25 Commission of Experts' report, that deportation of the men, women, and

1 children was considered an act of genocide because it results in the

2 disappearance of the Bosnian Muslim community in Srebrenica. We suggest

3 that, to the contrary, the principle in dubio pro re, if not actual

4 logic, leads to an opposite conclusion, that the transfer of the women,

5 children, and elderly from Srebrenica proves not the commission of

6 genocide but an intention to avoid committing genocide.

7 Second, we suggest that the Trial Chamber's interpretation of the

8 genocide statute is contrary to the principle of nullum crimen sine lege.

9 Most importantly, the application of this principle requires that the

10 Tribunal should apply rules of international humanitarian law which are

11 beyond any doubt part of customary law. Certainly, as of July 1995, when

12 the events at Srebrenica took place, the principles espoused by the Trial

13 Chamber were not beyond any doubt part of international customary law,

14 particularly as it relates to equating displacement of a population with

15 genocide.

16 In the recent Ojdanic decision of 21 May 2003, the Appeals

17 Chamber, explaining the principle nullum crimen sine lege, stated as

18 follows: "The Tribunal must further be satisfied that the criminal

19 liability in question was sufficiently foreseeable and that the law

20 providing for such liability must be sufficiently accessible at the

21 relevant time for it to warrant a criminal conviction and sentencing

22 under the head of responsibility selected by the Prosecution." We

23 suggest that the Trial Chamber's interpretation of the genocide statute

24 does not comport with this principle.

25 Our point is this: Genocide is specifically made criminal in

1 Article -- by Article 4 and condemns the destruction of a group by the

2 various means listed. Deportation or forcible transfer is not listed as

3 one of those means of perpetration. Deportation is specifically set out

4 as a crime against humanity under Article 5. Since there was nothing in

5 the genocide statute to indicate that deportation or forcible transfer --

6 other than the forcible transfer of children -- again, since there was

7 nothing in the genocide statute to indicate that deportation or forcible

8 transfer could also be considered an act of genocide, we suggest that the

9 principle of nullum crimen sine lege prevented the Trial Chamber from, in

10 the words of the Ojdanic case, "creating new law or from interpreting

11 existing law beyond the reasonable limits of acceptable clarification."

12 Our final submission that under the evidence presented to the

13 Trial Chamber, General Krstic is not guilty of genocide. By making this

14 argument, neither General Krstic nor his lawyers are attempting to

15 minimise the gravity of what happened at Srebrenica. Indeed, we agree

16 with the introductory comments of the Trial Chamber in the Krstic case,

17 when the Chamber stated - and I quote - "The events of the nine days from

18 10th to 19th July 1995 in Srebrenica defy description in their horror and

19 their implications for humankind's capacity to revert to acts of

20 brutality under the stresses of conflict."

21 Horrible and despicable as the acts of Srebrenica were, our

22 submission is that the evidence did not warrant a finding by the Trial

23 Chamber that there was a joint criminal enterprise which intended to

24 commit genocide at Srebrenica or that General Krstic ever had that

25 intent.

1 Thank you, Your Honours.

2 JUDGE MERON: Thank you, Mr. Sepenuk. I believe that your

3 colleague now would like to continue the argument. And I give him the

4 floor.

5 MR. PETRUSIC: [Interpretation] Good morning, first of all, Your

6 Honours. And before I begin my submission, with your permission,

7 Mr. President, I should like to move to this other rostrum so that you

8 wouldn't get the impression that I am hiding behind this pillar from the

9 members of the Chamber. Thank you.

10 JUDGE MERON: Please do.

11 MR. PETRUSIC: [Interpretation] My learned colleague, Mr. Sepenuk,

12 in the course of his submissions yesterday and today, mentioned on

13 several occasions that members of the Bratunac Brigade did not take part

14 in the executions at the Branjevo Farm, nor at the Pilica cultural

15 centre. What makes this important is that members of the Bratunac

16 Brigade -- or rather, the Bratunac Brigade is a subordinate unit to

17 General Krstic and its commander, Colonel Blagojevic, was directly

18 subordinated to General Krstic.

19 Regarding this submission of the Defence, that is, there is no

20 evidence that members of the Bratunac Brigade participated in the

21 executions at these two locations; however, the Trial Chamber came to the

22 opposite conclusion in interpreting the intercept, the exhibit of the

23 Prosecution, C22, and I would like to remind you that it is a

24 conversation between Colonel Rasic in the command of the Drina Corps and

25 Lieutenant Colonel Popovic, who is somewhere around Zvornik.

1 In a part of that intercept, Lieutenant Colonel Popovic says that

2 "This commander is up there; up there had some terrible problems and that

3 Vidoje Blagojevic's men did not arrive on time." The Judges of the Trial

4 Chamber adopted the position that these were members of the Bratunac

5 Brigade, on the basis of the interpretation given by Mr. Butler, that is,

6 an interpretation of the phrase "up there," saying that this referred

7 to -- that this referred to an area north of Zvornik, that is, Pilica.

8 This is transcript page 5144.

9 The Trial Chamber further found, in paragraph 401 and 402, that

10 the conversation and the interpretation of it given by Mr. Butler was

11 consistent with the testimony of Drazen Erdemovic, who testified on the

12 21st of May, 2000 in the Trial Chamber. On page 3132, Mr. Erdemovic

13 stated that "The executions at the Branjevo Farm started around 10.00 on

14 the 16th of July and that they were continued in the Pilica centre in the

15 afternoon of that same day." Mr. Erdemovic also testified that around

16 1.00 or 2.00 of the 16th of July certain men arrived from Bratunac to

17 assist in the executions. Mr. Erdemovic at the time, even in response to

18 a question of one of the members of the Trial Chamber who asked him to

19 identify those men, he didn't identify them as being members of the

20 Bratunac Brigade. He simply said, "Those were men from Bratunac. They

21 were wearing a military uniform."

22 Therefore, linking this phrase "up there" with Erdemovic's

23 testimony, Mr. Butler asserted that these were members of the Bratunac

24 Brigade and the Trial Chamber made its findings on that basis. Today,

25 with the evidence presented by the Defence in its brief on the 24th of

1 November, 2003, and on the basis of the testimony of Mr. Butler in the

2 Blagojevic case regarding this same incident, we now have quite a

3 different interpretation by Mr. Butler. On transcript page 4617, in the

4 annex of our Brief A - and this is the transcript from the Blagojevic

5 case, in answer to the Prosecutor's question, Mr. McCloskey:

6 "In your testimony, Mr. Butler, did you make an error when

7 testifying in the Krstic case regarding information from

8 Mr. Erdemovic?"

9 Mr. Butler stated,

10 "Yes, I did. I recognised it when I reviewed my testimony.

11 As soon as I saw what I had said, I asked the tape to be

12 checked because I allegedly said that they were men from the

13 Bratunac Brigade. And I would like to say for the record

14 that from the beginning of my connection with this case, I

15 always knew that Erdemovic had always said that those were

16 men or soldiers from Bratunac. He never said that they were

17 men from the Bratunac Brigade."

18 Further interpretations of Mr. Butler's testimony led to a

19 question by the Prosecutor to explain the meaning of the sentence in this

20 intercept, when Rasic asked Popovic - and I quote - "Tell me whether

21 anything has arrived from Vidoje Blagojevic." Mr. Butler concluded that

22 "In view of the other information we acquired, where various units were

23 asked to send additional troops to the Zvornik Brigade area." Butler

24 goes on to explain, "Rasic asks whether those troops had been sent and

25 whether those who should have been sent from Bratunac had arrived";

1 transcript page 4618.

2 Further on, Butler points to the conclusion that a group of

3 soldiers from Bratunac had finally arrived and had been sent up there,

4 that they had been sent in the direction of the forward command post in

5 the Bajkovica area of the Zvornik. So locations where combat operations

6 were ongoing, locations where during the 16th of July aid was requested

7 for units engaged in combat operations and certainly not in executions.

8 Another phrase which has caused some doubts and erroneous

9 conclusions in Mr. Butler's explanation and during the trial of

10 General Krstic is the interpretation of the phrase "up there," and all in

11 this context of this intercept. This phrase, according to the

12 interpretation of Dragan Obrenovic given during his testimony on the 6th

13 of October, 2003 - transcript page 2601 - and explaining this same

14 intercept, Mr. Obrenovic stated - I quote - "I think this refers to the

15 Bajkovica area, where most of the conflict was going on in that area."

16 On page 2678 of the transcript of the 7th of October, Obrenovic goes on

17 to say, "If you expect me to give my opinion as to what Lieutenant

18 Colonel Popovic meant, I've already given my opinion. I believe that he

19 was referring to Bajkovica, the area of the 4th Battalion where combat

20 was ongoing."

21 Obrenovic removes all doubt by stating that Lieutenant Colonel

22 Popovic, had he wanted to refer to Pilica, he would have said "down

23 there," because the Drina River flows towards Pilica, so that is the

24 downstream direction. Clearly Lieutenant Colonel, when he says up there

25 -- Lieutenant Colonel Popovic -- he means Bajkovica.

1 And to round off this point, in his final analysis of this

2 conversation, Mr. Butler, on page 4717, says that he's ready to conclude

3 that those were not men from the Bratunac Brigade involved in the

4 execution at the Branjevo Farm and Pilica. And again, on page 4736, that

5 the most correct conclusion to be inferred is that "up there" actually

6 referred to the area of the forward command post at Bajkovica.

7 Those would be my submissions regarding this intercept on which

8 the Trial Chamber, in paragraphs 401 and 402, found that members of the

9 Bratunac Brigade participated in the executions at Branjevo and Pilica.

10 Your Honours, the submission of General Krstic's Defence is that

11 General Krstic's guilt begins and ends on the 12th of July in Potocari.

12 If the Chamber finds and accepts that he was a participant in the joint

13 criminal enterprise, then in the submission of the Defence he can be

14 considered that only for the time period and the activities related to

15 forcible transfer in Potocari. The intercepts and the evidence in this

16 case point to the fact that he undertook certain steps when he received

17 information and took steps to organise the buses.

18 Yesterday my colleague said that his role was a minor one in that

19 operation, and I would agree with that. General Krstic has a very high

20 rank, but the circumstances and the situation and the acts that he took

21 really do place him at a very low level. The intercepts show that he was

22 enquiring whether the buses were coming, whether they had arrived, where

23 they were. It is a fact that in Potocari on the 12th of July he spent

24 about one to two hours, according to the finding of the Trial Chamber,

25 but one should not lose from sight that after that -- which means not

1 late than 3.00 p.m. on the 12th of July -- he left that area and that he

2 did not return there again. One should also not lose from sight that at

3 the relevant time for the forcible transfer of the population he issued

4 an order that not a hair should be hurt on the head of any single one of

5 those civilians, and I would be free to assert that this was a much

6 stricter, a much stronger, a much more emphatic order stated in that

7 intercept than any other written order.

8 In the opinion of the Defence, Your Honours, by issuing such an

9 order, he is disassociating himself from all the activities which were

10 engaged in subsequently. Could he have done anything more than that

11 except to issue an order to subordinate units that no member of the

12 Muslim nation should be hurt or treated, contrary to the customs of war

13 and contrary to the provisions of the Geneva Conventions? He stated this

14 very clearly.

15 General Krstic's departure from that area shows that his basic

16 involvement was with the combat operations around the other enclave. The

17 Prosecutor asserted, during yesterday's hearing, that resources of the

18 Drina Corps were used and that he must have known about that and he

19 should have taken steps to prevent that, referring to resources of the

20 Zvornik Brigade, and those resources of the Zvornik Brigade were two

21 machines, ULT 220, and a machine known as BGH 700 used in the burial at

22 Orahovac.

23 Could he -- could General Krstic have known this? In the

24 submission of the Defence, he did not. And as proof of such a

25 submission, the Defence offers General Krstic's overall behaviour and

1 also an intercepted conversation dated the 17th of July, when General

2 Krstic requested the troops under his command located in Vlasenica. And

3 the conversation went as follows:

4 "Krstic: Bring me the soldiers you have immediately.

5 "X: About four.

6 "Krstic: How many?

7 And he says,

8 "I only have the guards. I'm involved up there --

9 "Krstic: I beg your pardon?

10 "X: I'm busy up there."

11 Then a word that is unclear.

12 "Here where we were before.

13 "Krstic: "Where before? Fuck you."

14 And X says:

15 "I have -- Osmaci. I have three more soldiers and three on

16 guard here. I have three.

17 "Under whose permission did you send troops down there,"

18 says Krstic.

19 "X: "By orders from the Main Staff."

20 "Krstic: "Fuck you. Return those soldiers to me as soon

21 as possible down there."

22 One can conclude from this intercepted conversation that the Main

23 Staff, without any permission and without any knowledge or without

24 informing subordinate commanders, is taking and using resources at will.

25 Your Honours, it is very hard to speak of punishment if the

1 Defence position is known from the very beginning, that is, the Initial

2 Appearance of General Krstic, when he entered a plea of not guilty.

3 During the trial itself, General Krstic and his Defence upheld that

4 position. Today we are in a situation when the Defence says that if this

5 Honourable Chamber comes to the conclusion and determines the existence

6 of General Krstic's guilt, it can relate to forcible transfer in

7 Potocari. And with regard to that segment, the Defence submits that the

8 initial sentence should be significantly reduced.

9 Your Honours, that would complete the submissions of the Defence.

10 JUDGE MERON: Thank you, Mr. Petrusic. I see we still have 20

11 minutes before the break, and I'm sure that my colleagues and myself

12 would want to ask some questions.

13 If I may start with a number of questions to Mr. Sepenuk.

14 Questioned by the Court:

15 JUDGE MERON: Mr. Sepenuk, do you agree with the Trial Chamber's

16 conclusion in paragraph 560 of the judgement that "The Bosnian Muslims of

17 Srebrenica or Eastern Bosnia are a part of the protected group of all

18 Bosnian Muslims within the meaning of the term 'genocide'"? What are you

19 arguing? That this part is not substantial enough?

20 MR. SEPENUK: What we're arguing, Your Honour that, the criteria

21 adopted by the Trial Chamber was to determine if -- if General Krstic

22 destroyed a part of a part of the Bosnian Muslims. In other words, they

23 held that the destruction of 7500 men out of the Bosnian Muslim group in

24 Srebrenica, together with the deportation of the rest of the people,

25 constitutes an intention to commit genocide. We say that the Trial

1 Chamber should have compared that number against the whole of the Bosnian

2 Muslim group, and they would have reached a different conclusion.

3 JUDGE MERON: So you are in fact arguing that the part of the

4 population of Bosnian Muslims, as referred to by the Trial Chamber is

5 that paragraph, the Bosnian Muslims of Srebrenica are not a substantial

6 enough part of all Bosnian Muslims?

7 MR. SEPENUK: Well, I think -- Your Honour, I'm --

8 JUDGE MERON: I'm trying to narrow it down.

9 MR. SEPENUK: Yes. Yes, I understand. And I -- the language of

10 the -- of the Trial Chamber in Stakic I think is -- is very good on this

11 point. I think we've reached a time in the jurisprudence of this

12 Tribunal that it's fruitless to argue that you cannot have genocide in a

13 limited geographical area. The Akayesu case held in a burgomaster --

14 whatever that expression is; and there have been a number of courts that

15 have held and indeed commentators who have also mentioned that you can

16 have genocide in a limited geographical area. But again, as the Trial

17 Chamber noted in Stakic, it can create problems, in terms of -- of

18 limiting it to certain -- I mean, can you have -- can you have genocide

19 in a village? Can you have genocide in an area with 100 people, whatnot?

20 But I'm willing to accept for purposes of this case, the definition of

21 the Trial Chamber. But we claim that even defining the group as the

22 Bosnian Muslims of Srebrenica, there's no genocide because -- because for

23 one thing, most of the group was deported from Srebrenica, showing, in

24 our view, an overall intention to commit ethnic cleansing and certainly

25 not an intention to destroy the Bosnian Muslim group as such. The 7500

1 men were destroyed, in our view, precisely because they were military-age

2 men and not because they were Bosnian Muslims.

3 JUDGE MERON: I -- I will turn to that aspect of the military men

4 -- military-age character of the Bosnian Muslim men in Srebrenica in a

5 moment. But let me stay for just one more second on this question of

6 substantial part, because yesterday you argued this extensively.

7 You have pointed out to us -- to us repeatedly the need to adhere

8 strictly to the language of the Statute by implication -- by reference to

9 the Genocide Convention. Now, Article 4 of the Statute does not refer

10 anywhere to a substantial part. Where do you take it from?

11 MR. SEPENUK: I believe, Your Honour, that that's the gloss

12 that's been added by the cases. I think I've read -- I hope I've read

13 every case in this area. I've also read the commentary. I've read the

14 International Law Commission, Whitaker, all the commentators. And the

15 case law; Jelisic, Sikirica. I don't think it was particularly referred

16 to in Stakic because of the comments about demography and what, although

17 I could be wrong about that. But -- but that is a gloss that's been

18 added to the genocide statute because the very nature of genocide itself,

19 that there must be an intention to destroy a substantial part -- and

20 every case, to my knowledge, in this Chamber and in the Rwanda Chamber -

21 although, there they simply say -- I believe the language in the Rwanda

22 Chamber is "a considerable number of individuals." But in this Chamber,

23 the term is used, yes, "a substantial part."

24 JUDGE MERON: Thank you. You realise, of course, that Jelisica

25 and Sikirica, that those aspects were only discussed by Trial Chambers

1 and not by the Appeals Chamber.

2 MR. SEPENUK: Yes, Your Honour. Yes.

3 JUDGE MERON: Now, let's continue this clarification. In

4 paragraph 594, the Trial Chamber found that the Bosnian Serb forces

5 sought to eliminate all of the Bosnian Muslims in Srebrenica and in

6 surrounding areas as a community. The means by which this was to be

7 achieved was by killing all the Bosnian Muslim men of military age in

8 that community. Was it unreasonable for the Trial Chamber to conclude

9 that if all the military-aged men in Srebrenica and surrounding areas

10 were killed, the Bosnian Muslims in that area would not continue to

11 exist?

12 MR. SEPENUK: Well, Your Honour, first of all, as I pointed out,

13 the -- the civilians left first; the women, the children, the elderly,

14 left on the 11th and 12th. So I don't think that Defence argument

15 particularly holds.

16 Also, when they talked about the annihilation of the Bosnian

17 Muslim community in Srebrenica, there's only five ways to commit

18 genocide, as Your Honour well knows: The term is destruction, and the

19 way to destroy the group is by the five methods listed in the Statute.

20 And what the -- what happened in this case - put it at the most basic -

21 7500 men were killed; the balance of the people were deported. Now, that

22 could constitute annihilation of the community, but it doesn't constitute

23 the killing or the other acts mentioned by the genocide statute.

24 JUDGE MERON: Okay. Let's turn back, then, to the killing. You

25 seem to argue that the fact that women were not killed shows that

1 genocide was not committed because killing women would have been a more

2 effective way of destroying the procreative capacity of the Bosnian

3 Muslim community. But why couldn't the Trial Chamber conclude that

4 killing just of the military-age men was an equally effective way of

5 achieving that goal?

6 MR. SEPENUK: Because the military-age men, I don't think,

7 constitute part of the Bosnian Muslim group as such. There's another

8 reason for killing the military-age men, aside from wanting to eliminate

9 the Bosnian Muslim group as such. And again, the safe treatment of the

10 women and children and elderly belie an intent to destroy the group as

11 such.

12 JUDGE MERON: But if you add up the destruction of all men

13 basically of procreative age in the area of Srebrenica, you add up to

14 that that women and children were forced to leave that area. Does this

15 not add up to the destruction of Bosnian Muslims in the area of

16 Srebrenica, which was regarded by the Trial Chamber as a destruction of

17 the part of the protected community?

18 MR. SEPENUK: All it had, Your Honour, is it had what may have

19 been a lasting impact on the Bosnian Muslims of Srebrenica. But the

20 women and children and elderly remained alive, remained able to

21 procreate. The group could have been eventually reconstituted. But

22 again, that's not the question. The question was: Were they destroyed?

23 JUDGE MERON: The community was destroyed, if you take these two

24 components into -- into effect.

25 MR. SEPENUK: Yes, certainly if you take the two. But our

1 submission is that the only component that this Chamber can legitimately

2 consider is the killing, and not the deportation. If you are going to

3 consider the deportation, I would think the presumption of innocence and

4 the Delalic rationale about accepting the only legal conclusion from the

5 evidence is that the deportation of the women, children, and elderly show

6 and an avoidance of an attempt to commit genocide.

7 JUDGE MERON: Thank you. I'll now turn to my colleagues.

8 Judge Schomburg, please. Judge Schomburg.

9 JUDGE SCHOMBURG: Thank you very much, Mr. President.

10 Sorry to come back to the question of applicable law. Today's

11 transcript, page 5, you mentioned again the report of experts and the

12 opinion given by Professor Bassiouni that genocide would not be a static

13 crime. The question goes to both parties: What is the applicable law?

14 Do we have to apply the Convention of 1948 as such or is there any

15 discernible development of the term or the offence of genocide since

16 then, based on the implementation of the Genocide Convention? I

17 personally did not find a persuasive common approach in the

18 implementation of the Genocide Convention as such. Related to the

19 Genocide Convention as such, I can only find that the United States

20 ratified the Genocide Convention in 1986. It adopted an understanding,

21 which reads that "The term intent to destroy in whole or in part a

22 national, ethnical, racial, or religious group as such, appearing in

23 Article 2, means the specific intent to destroy in whole or in a

24 substantial part" - to come back to this - "a national, ethnical, racial,

25 or religious group as such by the acts specified in Article 2." And I

1 have not seen - please, both parties correct me if I'm wrong - that no

2 other states have so far any other reservations or understandings in

3 relation to this aspect of the convention.

4 Furthermore, taking into account the fundamental principle of

5 nullum crimen sine lege certa, isn't it to a certain extent a risk to

6 merge the legal term of joint criminal enterprise with the convention as

7 such? Doesn't it water down the clear wording of the convention?

8 The second part of my question is the following: If you would

9 follow this need of having a specific intent - and please understand this

10 only as a judicial hint and applying the right to be heard. We should be

11 aware that just in case one could come or would come to another

12 conclusion, that there was no such intent, you yourself. You yourself

13 yesterday mentioned several times a Trial Chamber saying "General Krstic

14 must have known," "he could have known," and so forth.

15 In the indictment, page 13, we can find that General Krstic was

16 charged with genocide or, alternatively, complicity to commit genocide,

17 punishable under Articles 4(3)(e) and 7(1) and 7(3) of the Statute of the

18 Tribunal. So if one, in theory, could or would come to the conclusion

19 that on a higher level there was this specific intent, the question

20 arises: Was there any complicity in genocide, and what is then the

21 necessary mens rea? We have, especially in our Statute, the problem that

22 on the one-hand side, quoting verbatim the Genocide Convention of 1948,

23 we have complicity in genocide and, I think it's undisputed that also for

24 complicity in genocide, specific intent is needed. However, under our

25 Rules, I note that it is not charged as such; but, however, one could

1 take it as a minor include it in the offence. We have the possibility of

2 convicting a person for aiding and abetting to genocide. Aiding and

3 abetting. The mens rea needed is that what you yourself mentioned, he

4 must have known, he knew, or should have known.

5 In light of this second part of the question - and also this

6 question goes to both parties - what about the relationship between

7 complicity in genocide and aiding and abetting to genocide where on would

8 need only a lower standard of mens rea? Thank you.

9 MR. SEPENUK: I will say -- I'm going to answer, Your Honour. I

10 hope my answer isn't too simple-minded. I hope I've grasped the nuances

11 of your question. But our fundamental premise is that there was no joint

12 criminal enterprise to commit genocide. There was never any intent on

13 the part of a joint criminal enterprise to commit genocide. And nor was

14 there any intent on the part of General Krstic, as I've just stated, so

15 nor was there any complicity in genocide. Nor do we think there was any

16 aiding and abetting of genocide, because again - and I know we've

17 stressed this point greatly in these last few days - is that July 15th

18 conversation with Colonel Beara is the only evidence the government has

19 introduced to indicate that General Krstic could possibly fall within -

20 even as an aider and abettor - we say he's not, because the most he said

21 was "I'll see what I can do," and we're absolutely convinced he did

22 nothing -- more important, whether we're convinced, the evidence shows,

23 we think, beyond any doubt that he did nothing. And as I understand the

24 law of this Tribunal, you must have some concrete action as an aider and

25 abettor. There has to be something to further the enterprise. At the

1 very least, there has to be moral encouragement. I believe that's in the

2 case law. In this case, we don't even have moral encouragement; instead,

3 we have various expletives being used by General Krstic to try to keep

4 Colonel Beara away from him. So certainly in traditional

5 aiding-and-abetting-language, we don't even have that in this case.

6 JUDGE MERON: It is 11.00, and we would like today to accommodate

7 the periods of rest of the interpreters properly.

8 We have not finished with the questions. However, I suggest that

9 we rise for half an hour and then continue. And I would like to remind

10 also the Prosecutor that one part of the question of my learned

11 colleague, Judge Schomburg, was directed to the Prosecution.

12 So we will rise for half an hour now.

13 --- Recess taken at 11.00 a.m.

14 --- On resuming at 11.34 a.m.

15 JUDGE MERON: Please be seated.

16 My learned colleagues will now continue with questions to the

17 Defence. And if I may call on Judge Guney.

18 JUDGE GUNEY: Thank you, Mr. President.

19 [Interpretation] Mr. Sepenuk, within the framework of the events

20 that took place in Potocari on the 12th of July, there's a point on which

21 I am not quite clear. I hope you will be able to provide some

22 clarification on it. And the point is the following: To organise and

23 provide 50 buses to transfer the Muslim detainees to an uncertain

24 destiny. In other words, an act of such scope, does it necessarily imply

25 the participation in a joint criminal enterprise? In other words, does

1 it imply the knowledge of the goal sought? Thank you.

2 MR. SEPENUK: Yes. Thank you, Your Honour. Of course, our

3 position is that General Krstic had nothing whatever to do with

4 suggesting the bussing -- the forcible transfer of civilians. He

5 certainly wasn't part of any initial decision to forcibly transfer the

6 civilians. You'll recall the testimony of Mr. Deronjic that, as far as

7 he was concerned, General Krstic was invisible. He didn't even know he

8 was at that Hotel Fontana meeting until he saw a tape afterwards which

9 indicated to him that General Krstic was there.

10 However - and this is where we are paying respect to the Appeals

11 Chamber's rationale in this Tribunal - we felt that given the fact that

12 we could not claim that the Trial Chamber's finding on this forcible

13 transfer point was wholly erroneous, that we could not simply ask the

14 Appeals Chamber to substitute its judgement for the Trial Chamber, and

15 particularly after Your Honours denied our Rule 115 motion with respect

16 to Mr. Deronjic, at least we thought back in those days he was being

17 truthful in his testimony. We now know from Mr. Deronjic's testimony

18 that the options 1, 2, and 3, as he put it, was a smokescreen to cover up

19 the forcible nature of the transfer. But at some point I think the Trial

20 Chamber - again, we -- we have to accept this. We wish we didn't, but I

21 think we do under the Rules of the Chamber and under the Rules of this

22 Tribunal - when General Mladic started to speak, he made it unfortunately

23 clear that there was no real true choice for the civilians to leave the

24 area. At that point, I think the Trial Chamber was warranted in finding

25 that everything from that point on constituted a joint criminal

1 enterprise, at least in terms of who participated to deport the

2 civilians.

3 Our claim is - and again, this is a matter that goes toward

4 sentencing - our claim is that General Krstic was a participant, but

5 there's no evidence that he was any more of an eager participant in this

6 than he was in the -- as he was in that July 15th, 1995 conversation with

7 -- with Colonel Beara. And once he was faced with this, once General

8 Mladic had laid down the law, General Krstic did all he could to make

9 sure that it was a peaceful transfer of civilians.

10 Has that answered your question, Your Honour, or is there ...?

11 JUDGE GUNEY: Thank you.

12 JUDGE MERON: If Judge Guney would allow me, I would like a small

13 follow-up to his question. Regarding those buses, I think it was

14 mentioned in the argument yesterday that some of these were diverted to

15 transport the male -- the male -- Muslim men. Do you -- can you clarify?

16 MR. SEPENUK: I believe that's correct. I believe there was some

17 diversion of buses at some point to -- for the Bosnian Muslim men. But

18 again, definitely, the whole thrust of the operation was to transport the

19 women, the children, and the elderly.

20 JUDGE MERON: I understand. Is it your argument that

21 General Krstic was not aware of such a diversion of buses?

22 MR. SEPENUK: Oh, no, not at all, Your Honour. No,

23 General Krstic had a great deal to do with the bussing operation in the

24 sentence that he certainly helped organise the buses and that kind of

25 thing. But our argument, again, that we've made earlier, is that that

1 was not an indispensable act here. In other words, anybody, any

2 lower-level office, for goodness sakes, could have arranged for the

3 bussing. It didn't take a general to arrange for the bussing. It so

4 happened in the general scheme of things, with General Mladic calling the

5 shots, General Krstic was designated as the person to help arrange the

6 bussing. But anybody could have arranged the bussing. So certainly, in

7 that sense, General Krstic was not indispensable to that operation.

8 JUDGE MERON: Thank you.

9 I will now turn to my distinguished colleague Judge Shahabuddeen.

10 JUDGE SHAHABUDDEEN: Mr. Sepenuk, and Mr. Petrusic, I have

11 benefitted enormously from your stimulating submissions, and I would be

12 obliged to you if you would help me on one or two points. Now, arising

13 from what the President has said and from Judge Guney's question, my

14 concern is this: When reference is made to the statement by the

15 appellant that not a hair was to be harmed, to what group of people was

16 the reference directed?

17 MR. SEPENUK: The women, children, and elderly, Your Honour.

18 JUDGE SHAHABUDDEEN: Yes. Well, now, Mr. Sepenuk, the question

19 in my mind - and I do believe you can help me - is this: General Krstic

20 was involved in the bussing of women and children, all of them. Does the

21 evidence permit of a reasonable inference being drawn by a reasonable

22 tribunal of fact as to whether he had any intentions for the disposition

23 of the men? And if so, what were those intentions?

24 MR. SEPENUK: Yes. I don't -- I don't believe -- I think that

25 the bussing operation, again, simply showed that General Krstic wanted

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1 the women, children, and elderly out of Srebrenica as peacefully as

2 possible. And by the way, the dovetailing with Judge Meron's question

3 before, our argument, of course, is that it's not sufficient to show an

4 intent to destroy a community. The intention must be to show to destroy

5 a part of the Bosnian Muslim group as such, not simply the displacement

6 of a community.

7 But getting back to Your Honour's question, the -- I don't really

8 think it showed anything, with respect to the men. If you want to look

9 at an overall genocidal plan, which we claim General Krstic never had -

10 we claim first the joint criminal enterprise didn't have it and, a

11 fortiori, certainly General Krstic never had it - but again, the

12 deportation, forcible transfer of the women, children, and elderly show

13 an intention to avoid killing the Bosnian Muslim group as such. We think

14 the only reasonable inference from the forcible transfer of that group is

15 that it was an intent to avoid the killing of a group as such, not the

16 promotion of the killing.

17 Now, surely it promoted a transfer away from the area. In that

18 sense -- that's the sense the Trial Chamber, used the expression

19 "annihilation." What they meant was -- by " annihilation" was the

20 killing of the 7500 men and the transfer of the 25.000 women, and for

21 reasons that we've stated, we think that was an error.

22 JUDGE SHAHABUDDEEN: Well, Mr. Sepenuk, I wonder if we will make

23 progress by separating the question of law from the question of fact. A

24 question of law which you have raised -- very engagingly, if I may say

25 so -- concerns the proposition that the Prosecution had only proved at

1 most the destruction of part of a part and not part of the whole, as it

2 were. Can we go back to the nub of my question, which is whether the

3 totality of the evidence permits of a reasonable inference being drawn by

4 a reasonable tribunal of fact as to whether the appellant had any

5 intentions for the disposition of the men, as distinguished from the

6 women and children. And if so, what were those intentions?

7 MR. SEPENUK: Well, Your Honour, there's certainly nothing in the

8 trial record that I know of - and I'm going to ask my distinguished

9 colleague, Mr. Petrusic, who was one of the trial lawyers to correct me

10 on this, with Your Honour' permission - there's nothing in the trial

11 record that I know of which indicates any intention whatsoever on

12 General Krstic's part to kill the men, nothing; not a single piece of

13 evidence in the record to indicate an intention by General Krstic

14 concerning the killing of the men.

15 JUDGE SHAHABUDDEEN: Do you say that that provides scope for

16 returning to Judge Guney's question as to whether in those circumstances

17 a reasonable tribunal of fact could draw an inference as to whether

18 General Krstic was privy to a joint criminal enterprise concerning the

19 disposition of the men?

20 MR. SEPENUK: Again, I -- and please, I -- I hope I'm focussing -

21 and I am focussing on your question, obviously - but there's no evidence

22 that I know of that could attribute that state of mind to General Krstic

23 vis-a-vis the men.

24 JUDGE SHAHABUDDEEN: Thank you. Thank you.

25 May I turn now to a related aspect. Judge Schomburg referred to

1 the question whether at a higher level there was a certain specific

2 intention. I want you to help me to explore that. Reference has been

3 made to the Fontana meeting being a smokescreen. I take it you'll

4 understand the disposition of the Bench, certainly on my part, to examine

5 whether the letter written by Major General Tolimir on 9th July was

6 itself a smokescreen. By that I have in mind this: In that letter,

7 Major General Tolimir conveyed, I believe, the directives of

8 President Karadzic to the effect that the Geneva Conventions were to be

9 adhered to. Well, now, killings went on between the 13th and the 19th of

10 July and on a large scale. Does the evidence on the part permit a

11 reasonable tribunal of fact to draw an inference to the effect that

12 President Karadzic must have known that these killings were going on?

13 MR. SEPENUK: Do you mean as of July 9th -- I mean -- right.

14 JUDGE SHAHABUDDEEN: No, between the 13th and the 19th.

15 MR. SEPENUK: That President Karadzic knew what was going on?

16 JUDGE SHAHABUDDEEN: Yes.

17 MR. SEPENUK: First of all, on -- just briefly on the smokescreen

18 point, that letter of July 9th, for all we knew, certainly for all

19 General Krstic knew, was a very legitimate letter, expressing the orders

20 of President Karadzic that, indeed, no civilians were to be harmed and

21 that civilians and military were to be treated in accordance with the

22 Geneva Convention. That changed on the evening of July 11th, the morning

23 of July 12th, when there were men discovered at Potocari and when the

24 Bosnian Muslim column started to escape toward Tuzla. We feel that the

25 Trial Chamber is correct in its holding that's when the killing plan was

1 hatched. And again, we feel there's no evidence whatsoever to connect

2 General Krstic to that.

3 In terms of the knowledge of -- of President Karadzic about those

4 killings during that period, I can only speculate. Of course, we have

5 evidence from Mr. Deronjic that he spoke to President Karadzic and

6 President Karadzic said, "As far as these prisoners are concerned, put

7 them in the Batkovici camp near Bijeljina." In terms of any other

8 evidence from that point on, to show President Karadzic's knowledge, I'm

9 certainly not aware of any. And I ask my colleague, Mr. Petrusic,

10 whether that's correct.

11 May I?

12 JUDGE SHAHABUDDEEN: Yes.

13 MR. PETRUSIC: [Interpretation] Your Honours, with the Court's

14 indulgence, I should like to follow on to what has just been said in

15 response to the question whether the sequence of events from the meeting

16 of the 12th and the conduct of Mr. Deronjic to reach President Karadzic

17 indicates that on the 13th in the evening, sometime around 200 [sic]

18 hours, we had a conversation with President Karadzic through an

19 intermediary, and in that conversation, via this intermediary

20 Mr. Deronjic addresses the then-President Karadzic and informs him,

21 informs President Karadzic that, in the Bratunac area there were about 2

22 to 2 and a half thousand male Muslims. Karadzic suggests, once again

23 through this intermediary, that "the goods" - and I quote from the

24 conversation - "should be placed in a warehouse until dawn." Deronjic,

25 for his part, in his testimony, says that he understands as being

1 Karadzic's demand for the Muslim males from Bratunac to be dislocated and

2 taken to the area of Batkovici, which is where certain facilities existed

3 -- or rather, a military prison existed. That's what Deronjic tells us

4 in respect of the destiny of the prisoners of the 13th of July in the

5 evening, those who were put up in Bratunac.

6 Your Honour, in following on from the answer already given by my

7 colleague, I should say that I do not doubt for a single moment that you

8 yourselves have not become informed and acquainted of the substance and

9 indeed the details of this whole proceedings and case, especially when

10 you speak about the existence of joint criminal enterprise and the role

11 played therein by General Krstic. Now, if we're talking about the 12th

12 of July and the meeting at the Fontana Hotel, I should like briefly to

13 draw your attention to the following: We must look at it in continuity,

14 as a continuous process of the meetings being held to discuss the destiny

15 and fate of the Bosnian Muslim civilians who were in Potocari. We had

16 three meetings, in actual fact, which were being held at the level of

17 General Mladic, with representatives of UNPROFOR and the Muslim

18 civilians; two meetings held in the late evening or afternoon and evening

19 hours --

20 JUDGE SHAHABUDDEEN: Mr. Petrusic, I want to apologise to you

21 very fulsomely in case I have misled you. All I wanted to know was

22 whether from the size of the killings and the duration of the killings

23 there was any evidence from which a reasonable tribunal of fact could

24 make the inference that President Karadzic knew that those killings were

25 going on.

1 MR. PETRUSIC: [Interpretation] Your Honour, looking at the

2 evidence from the case, and that is the testimony of Mr. Deronjic, the

3 Defence of General Krstic holds, and would like to claim, that

4 President Karadzic did not know about the beginning and part of the

5 course that this took, of the killings. Your Honour, the Defence in this

6 case did not delve, nor did the proceedings at court delve into this

7 question in any substantial form, so that the information I have with

8 respect to facts governing that lead me to conclude that the answer to

9 your question would be negative; that is to say, that President Karadzic

10 did not know about the killings.

11 JUDGE SHAHABUDDEEN: Thank you. Thank you very much,

12 Mr. Petrusic. Thank you.

13 I have one question of law, I think, for Mr. Sepenuk.

14 Mr. Sepenuk, I was a little -- at one and the same time, I was

15 enthralled and mystified by this submission concerning the proposition

16 that all the Prosecution had proved was that genocide, if it took place,

17 affected only a part of a part of the Muslim population. The impression

18 I have is that you propose a distinction between the Muslim population in

19 Srebrenica and a Muslim population in the whole of Bosnia, and from your

20 point of view what the Prosecution should prove is the destruction of

21 part of the whole Muslim population of Bosnia but that what they had

22 proved was only the destruction of that part of the Muslim population

23 which lay in Srebrenica. Now, that gives me a little difficulty, and I'm

24 sure you can help me, because I'll tell you what is the difficulty that I

25 have: If the Prosecution has proved the destruction of that part of the

1 Muslim population which lay in Srebrenica, would not the Prosecution have

2 logically also proved the destruction of part of the whole Muslim

3 population of Bosnia?

4 MR. SEPENUK: I don't think so, Your Honour. What the

5 Prosecution proved was the destruction of 7500 Bosnian Muslim men and the

6 displacement of 25.000 women, children, and elderly; that's what the

7 Prosecution proved. The Prosecution did not prove the destruction of the

8 distinct part of Srebrenica. The Prosecution only proved the destruction

9 of 7500 men. Now, when I say "only," it gets back to my comment

10 yesterday, Your Honour, about when death and suffering are involved it's

11 repugnant to speak about mathematical calculations, but we have to here.

12 And we feel, again, what was destroyed was 7500 men. The -- the lack of

13 genocidal intent is shown by many things but particularly the safe

14 transport of the women, children, and elderly, and so the Srebrenica

15 community, that section of -- of the chamber which talks about we must

16 look at a distinct part not -- not numbers throughout the country but,

17 rather, a distinct part -- the distinct part was not destroyed. A good

18 number of those people, a great majority of those people were displaced,

19 not destroyed.

20 JUDGE SHAHABUDDEEN: So if I may perfect my understanding of your

21 submission, it would be this: If - if - the Appeals Chamber were to hold

22 that what was destroyed was a whole Muslim population of Srebrenica

23 through the destruction of the military-aged men, then your submission

24 wouldn't hold that the Prosecution not only proved the destruction of

25 part -- of a part of the Muslim population?

1 MR. SEPENUK: If you were to hold - and in our view, what you'd

2 have to do was to say that it has to be one of those five ways of

3 committing genocide - if you were to hold that indeed that by virtue of

4 one of those five ways of committing genocide - in this case, killings -

5 that the entire community was indeed destroyed, as it can only be by one

6 of those five methods, then I think we would probably agree with Your

7 Honour, although we might say - and again, I -- by the way, Your Honour,

8 I agree with you; it's -- the words you used were mysterious -- and what

9 was the other word? I'm sorry.

10 JUDGE SHAHABUDDEEN: I've forgotten it.

11 MR. SEPENUK: Right. But it's a very slippery concept. It

12 really is. I mean, I've -- I've wrestled with this now for two years.

13 But again, go back to the Sikirica Chamber too, talking about there still

14 has to be that overall intent to destroy the Bosnian Muslims as a group.

15 And I think that even in the case that Your Honour mentioned there has to

16 be an analysis of all the facts and circumstances, as the Stakic Court

17 recently held, to determine whether the intent was truly to destroy the

18 Bosnian Muslim group as such or a part thereof or, rather, to engage in

19 ethnic cleansing during which period certain men were killed; we say

20 because they were military-age men, not as part of the Bosnian Muslim

21 group as such.

22 JUDGE SHAHABUDDEEN: Mr. Sepenuk, I thank you very much for your

23 answer, and I have profited enormously from your contribution.

24 MR. SEPENUK: Thank you, Your Honour.

25 I'm still a little -- if I might, Judge Meron, I have a nagging

1 feeling that I never quite adequately answered Judge Schomburg's question

2 this morning. Your Honour, if there's anything -- I'm particularly

3 speaking about the strict construction. I, of course, tried to make that

4 point throughout. And I know of no -- nothing that has derogated from

5 that. If that was -- I realised after I gave my answer that I never

6 really answered the first part of your question. And to my knowledge, I

7 don't think that -- I know of no authority which has derogated from a

8 strict construction of the 1948 Genocide Statute and certainly nothing

9 that supports Professor Bassiouni's idea that this is a pliable

10 definition to cover the kind of situations he was speaking of.

11 JUDGE MERON: If I may just for a moment return to the last

12 exchange you had with my learned colleague Judge Shahabuddeen. You seem

13 now to be accepting that if all men of military age in Srebrenica were

14 killed, and this would be equivalent to all men of procreative age, that

15 this would amount to the destruction of the Muslim population of

16 Srebrenica, which is a part for the purposes of the Genocide Convention

17 of the entire group of Bosnian Muslims of Bosnia.

18 MR. SEPENUK: With great respect, Your Honour, I don't mean that

19 at all. No, I -- I certainly didn't mean to give that answer. What I

20 thought I was answering with respect to Judge Shahabuddeen's question is

21 that if the Appeals Chamber would hold that the elimination of the group

22 from Srebrenica -- that is, the men together with the women, children,

23 and elderly -- did indeed constitute the destruction of a part of a

24 group, I think that we would have difficulties. We'd still claim that

25 you have to look even further at all the facts and circumstances to see

1 if there was truly an intent to destroy a part of the Bosnian Muslim

2 group as such. But we certainly don't think, Your Honour - we strongly

3 feel to the contrary - that the killing of the 7500 Bosnian Muslim men of

4 military age for the reasons I tried to express in our brief and over the

5 last few days is certainly not indicative and certainly doesn't prove

6 beyond a reasonable doubt an intent to destroy a part of the Bosnian

7 Muslim group as such.

8 JUDGE MERON: If it were the women who were killed, would you

9 have taken the same position?

10 MR. SEPENUK: Yes. Yes, we would have taken the same position.

11 JUDGE MERON: Thank you. I believe that you still wanted to

12 return now to Judge Schomburg's -- or you have --

13 MR. SEPENUK: I simply wanted to mention to Judge Schomburg, as I

14 realised -- this is in the thinking -- you know, I always realise what I

15 could have said and should have said, and I just happened to think about

16 it at the end of the -- when I was going down, frankly, to have a cup of

17 coffee, that I -- it's a very important point. I mean, it's the heart of

18 what this case is all about and the difference between the two sides. At

19 bottom, our argument is that, in terms of in dubio pro re, in terms of

20 nullum crimen sine lege, in terms of the usual rules of statutory

21 construction, that the 1948 Genocide Convention is what governs here; it

22 must be strictly construed the Committee of Experts' notion of it's

23 sufficiently pliable to be changed, that it's not a static definition.

24 We don't think that's so. We argue against that. And we think that in

25 this situation a strict construction of the Genocide Statute as indicated

1 not only by the Statute itself but by that long history. And the

2 commentaries that I spoke about yesterday and today clearly indicate the

3 -- and support the position we're taking.

4 JUDGE MERON: Thank you.

5 If there are no further questions from my distinguished

6 colleagues, we will now move on to the Prosecution and to its response.

7 I take it, Mr. Farrell, you will start?

8 MR. FARRELL: Yes, Mr. President.

9 If you don't mind if I just ask Mr. Petrusic kindly if I could

10 take the podium or remove the podium and transport it.

11 JUDGE MERON: So we will, at this stage, Mr. Farrell, go on until

12 1.00 p.m., and you will, also, continue later.

13 MR. FARRELL: Yes. Thank you.

14 Thank you, Mr. President, Your Honours.

15 Please excuse me, Judge Schomburg; I'll try and be in a position

16 where I can direct my attention towards you without the pole in the way.

17 Just as a preliminary -- excuse me, a preliminary matter, there

18 were a number of grounds of appeal that were not argued this morning, and

19 we will direct our response to those that were argued. The ones that

20 came up throughout the course of yesterday and today related to genocide,

21 the intent for genocide, indirectly a parallel chain of command and the

22 effect of the testimony, the additional evidence, on the Branjevo Farm,

23 the intercept of July 16th.

24 I will commence my submissions on the issue of genocide, and then

25 my colleague, Ms. Karagiannakis, will proceed with the factual arguments.

1 As you're aware, the Trial Chamber found after careful

2 consideration of the facts that a genocide took place over approximately

3 seven to nine days in July 1995 in the United Nations safe area. The

4 essence of the Defence submissions on genocide is that the acts of the

5 perpetrators, including General Krstic, can be no more than a criminal

6 enterprise to forcibly displace the Bosnian Muslims at Srebrenica. As

7 you're aware, the facts do not reflect this.

8 The Trial Chamber was placed in a position where it had to ask

9 itself a number of questions, including: Was it necessary for a

10 displacement that you design a military operation based on a directive

11 from the Supreme Commander that was to create an unbearable situation

12 with no hope of further survival or life for the inhabitants? Was it

13 necessary for the displacement of a group to execute the 7 to 8 thousand

14 men and transfer the remaining? Was it necessary to hunt down all the

15 Muslim men through -- from all four corners of the safe area and execute

16 them, to destroy the homes of those after they have left and to destroy

17 the mosques?

18 The forced displacements, as characterised by the appellant, was

19 initiated by an order of the Supreme Commander of the armed forces,

20 Mr. Karadzic. This order arose on the 9th of July. And as we are aware,

21 this order was sent directly to General Krstic. This order originated

22 from the longstanding directive, which I've just referred to, which was

23 to create a situation for no further survival or life.

24 Approximately the same day, on July 9th, that the order was sent

25 to General Krstic, who was in charge of the operation, the Supreme

1 Commander told the civilian leader who was to become the civilian

2 commissioner in Srebrenica that all those in Srebrenica must be killed.

3 In fact, he said, "You need to kill everyone you can." Within

4 approximately three days of this statement, the first of the 7 to 8

5 thousand Muslim men were executed. Within seven days, most of the

6 killing was undertaken or completed. Within those seven days,

7 President Karadzic deployed a police unit from Sarajevo to the Srebrenica

8 area, Mr. Borovcanin, who arrived on July 11th and was instructed to

9 contact General Krstic upon his arrival. General Krstic also had Colonel

10 Beara attend in Bratunac to take care of detained prisoners by having

11 them removed and killed. As well, Karadzic gave -- I'm sorry, Karadzic

12 gave Beara the instructions. Plus, President Karadzic gave instructions

13 regarding the meeting at the Hotel Fontana as a smokescreen.

14 During the operation, it's the Prosecution's submission, and the

15 Trial Chamber found that, General Krstic was intricately involved in the

16 operation, both in the attack, in the bussing, and in supplying assets

17 for the executions.

18 THE INTERPRETER: Could the counsel please slow down.

19 MR. FARRELL: I'm sorry. Thank you.

20 All the crimes were submitted within his zone of responsibility,

21 and the Trial Chamber found that he shared the genocidal intent. He

22 participated and contributed to the JCE. These acts, which have been

23 characterised by the appellant as displacement, demonstrate a far more

24 heinous crime: A hatred far greater than simply having people displaced.

25 What happened in Srebrenica did not bear the same characteristics or

1 follow the same methodology of the other historical examples that have

2 been referred to you today. And it did not follow the same methodology

3 of the examples we think of when we think of genocide, the Holocaust, or

4 the situation in Rwanda. But the Holocaust and the Rwandan genocide

5 should be considered cases of total genocide; in other words, where the

6 objective of the perpetrators appeared to destroy the group in its

7 entirety.

8 In Krstic, what you, the Appeals Chamber, is faced with is being

9 asked to consider the question of how to identify an intention to destroy

10 a part of a group, and how does that intention manifest itself in

11 reality? The inclusion of the concept of destruction in part in the

12 Genocide Convention extends the reach of the Convention itself to cases

13 where the perpetrators do not intend to destroy the group as a whole. It

14 would therefore be a mistake to start the inquiry into the meaning of

15 this phrase with the assumption that it applies to the situations of the

16 Holocaust or the genocide in Rwanda.

17 The difficult issue faced by the Trial Chamber was how to retain

18 the essence of the Genocide Convention but at the same time give the

19 plain meaning to the words that a perpetrator must simply intend to

20 destroy a part.

21 The appellant has raised in his oral submissions essentially four

22 arguments: The first relates to the intent to commit genocide,

23 especially due to the limited number of the persons killed, that being

24 the men; and the fact that the women, children, and elderly were spared.

25 The second submission is that the Trial Chamber's findings were

1 consistent with displacement and not destruction, and as displacement is

2 not one of the five enumerated acted for the commission of the crimes,

3 the actus reus, it's not genocide. Thirdly, he made comments on the

4 additional evidence. And fourthly, he tied up his arguments with

5 attempting to make a submission on what constitutes a substantial part,

6 and arguing that substantial part must be numerical and cannot be

7 qualitative.

8 I note that the last argument, the one that Mr. Sepenuk spent

9 some time on yesterday and this morning, the last argument regarding the

10 significant section of the group, the one related to the qualitative

11 characteristics of the leadership; this is the first time that the

12 Prosecution has heard this argument. It was not in the Notice of Appeal.

13 It was not in the appeal brief. It was not mentioned in the reply brief.

14 And therefore, I will attempt to respond to this ground of appeal, but

15 I'm certainly - and I apologise - but I'm certainly in no position to

16 determine whether or not there is any other material besides the material

17 before this Court in the book of authorities which would assist you in

18 determining whether or not this significant part -- if you accept the

19 appellant's submission, whether the significant part is something that

20 was referred to or is consistent with the objective of the Convention and

21 the preparatory works.

22 The first two grounds of appeal are similar in nature. For the

23 most part, it's a -- with the exception of one aspect of it, it's

24 essentially a factual argument, that the Trial Chamber erred in

25 concluding that there existed an intent to commit genocide, especially in

1 light of the limited number, and that the Trial Chamber's findings were

2 more properly characterised with displacement. It's the Prosecution's

3 submission that these are errors of law, with the one exception I'll deal

4 with, but certainly they've asked this Appeals Chamber to consider that

5 the findings were unreasonable.

6 Before responding, I'd note that there may be -- there may be a

7 different interpretation of the judgement between the Prosecution and the

8 Defence which may affect your assessment of the judgement and the grounds

9 of appeal, of course. It's the Prosecution's submission that the Trial

10 Chamber found that the -- part of the group - and it's been referred to

11 already in paragraph 560 - was the Bosnian Muslims of Srebrenica and that

12 the group were the Bosnian Muslims and that the method or the means, the

13 technique found by the Trial Chamber was that the killing of all the men

14 in Srebrenica led to the result of the annihilation of the group in

15 Srebrenica itself, as a group as such. And that is the part -- that's

16 the Prosecution's interpretation of the judgement. It's my understanding

17 that the appellant's interpretation is that -- or if the appellant's

18 interpretation was accepted, that the Trial Chamber only found that the

19 part was the men and they consist of a part of a part of the group. It's

20 the Prosecution's submission that that was not the construction of the

21 judgement by the Trial Chamber.

22 If it was not the construction and if the part of the group was

23 the Bosnian Muslims of Srebrenica, and that was a reasonable finding,

24 then the first argument that the Defence raised, which is that the men

25 themselves do not constitute a substantial part, would not hold water.

1 They couldn't argue that because of the fact that the Court found that

2 the men were the -- were part of the group and therefore that's not

3 substantial. If the Trial Chamber's decision is read as the Prosecution

4 reads it, that their identification of the part of the group was the

5 Bosnian Muslims of Srebrenica, then this doesn't -- this isn't the

6 substantial part.

7 And as well, the qualitative aspect argument - the last one,

8 saying that the Trial Chamber relied on finding that the men were a

9 significant section of the group and that constituted the part of the

10 group - if that's the case, then his argument remains part of a part of a

11 group.

12 The Prosecution's submission is that if the Trial Chamber

13 actually found that the part of the group that was intended to be

14 destroyed was the Bosnian Muslims in Srebrenica, then we don't have to

15 assess whether the men themselves were the substantial part. That's the

16 Bosnian Muslims of Srebrenica. That's the Prosecution's position on the

17 -- on the judgement and the way it affects the grounds.

18 But I will proceed to argue and respond to the appellant's

19 grounds as were raised. One of the arguments raised was that the Trial

20 Chamber diluted the numerical requirement by finding that the targeted

21 group, the targeted part, was the men. Now, as we've submitted, the

22 targeted group was the Muslims of Srebrenica. The means was killing the

23 men. But even assuming that we start with their premise, I would like to

24 first clarify the facts a little. We don't, as I'm sure you're fully

25 aware for the intent, look at the number of men killed. We don't start

1 with the premise that the intent was to kill 7.500 men and from there you

2 draw the inference that they therefore intended to destroy that group of

3 7.500. We look at a number of circumstances to decide intent. And

4 relevant to that is the fact that the intention was to destroy -- I'm

5 sorry, to kill the Muslim military-age men, as the Court said - and I'll

6 come to that in a minute - but the men -- it wasn't to kill 7.500. It

7 was to kill them all. The reason they were -- the actual numbers ended

8 up at around 7.000 to 8.000 was because, as we know, they were

9 unsuccessful to block the column, Colonel Pandurevic's troops were no

10 able to block them. We even have an interim report which was sent back

11 where he indicated that he could not successfully block and if he didn't

12 get reinforcements he would have to let them go through.

13 Now, based on the rest of the evidence, if they were able to

14 capture those -- those members of the column that broke through, there is

15 no doubt that they would have been killed. So the intention is not

16 limited to killing 7.500, the intention is to killing all the Bosnian

17 Muslim men that they -- that were in Srebrenica. That's a different

18 number. That's between 10 and 15 thousand. And if that's the case, then

19 the question is: Staying with the Defence's argument that it's only the

20 men, is 10 to 15 thousand, the intended result, a substantial part of the

21 Bosnian Muslims as a whole? In my respectful submission, it may very

22 well be. The definition of "substantial part," of course, remains

23 something that has to be interpreted, both legally and then applied

24 factually.

25 There are cases where there have been less. Nehemiah Robinson,

1 one of the commentators, talks about a multiple of persons. The

2 preparatory committee of the ICC understands the specific intention to be

3 -- to destroy more than a small number of individuals. The Trial Chamber

4 in Kayisheem and Rosandana says that is the intention to destroy is a

5 considerable number of individuals. And the ultimate issue is if we

6 accept that the part has to be substantial -- and I would indicate that

7 there's nothing in the convention that says it has to be substantial; it

8 simply says the word "part," and Judge Schomburg had asked if there'd

9 been any change in the context of international customary law with

10 respect to that issue. I'm not in a position - and I apologise - I'm not

11 conversant enough to answer your question. I would just note that the

12 Trial Chamber found that the commentators, Nehemiah Robinson and Drost,

13 in 1949 and 1950 used words which were not substantial.

14 Mr. Robinson made comments about substantial but characterised them in

15 the context of "a multitude of persons." It's my understanding that the

16 judgement itself recognises that at some point in time a stricter

17 definition was used, and that was in the IL -- the International Law

18 Commission report, and we accept for the sake of the judgement that

19 that's the -- the number that the Trial Chamber worked from, which is the

20 substantial part.

21 But the interesting question for this Court is: Is substantial

22 part relative, or is it in some way absolute? Does it have to be

23 relative to the group? In other words -- Mr. Sepenuk said, it's point

24 0.5 per cent; therefore, it's not substantial. Does substantial have to

25 be relative to the group at a whole or does it have to be a substantial

1 in terms of its quantitative or numerical? It's the Prosecution's

2 submission that -- excuse me. It's the Prosecution's submission that it

3 would have to be the latter. It couldn't be that you killed a million

4 people with genocidal intent in a country of 3 billion and were found not

5 to have had the intent to destroy the group in part because the part was

6 not substantial in relative terms.

7 In this case, it's respectfully submitted, that though the Trial

8 Chamber found that the part was the Bosnian Muslims of Srebrenica - and

9 the Prosecution remains with that point - it could have found that the

10 intent to kill upwards of 15.000 people substantial.

11 The next Defence argument relates to the women, children, and the

12 elderly and attempts to draw the inference that it would have been an

13 unreasonable finding to conclude an intent to destroy the group when the

14 women, elderly, and children were spared. There's one -- one preliminary

15 issue I'd like to deal with in relation to their submissions, and that's

16 their somewhat indulgent reliance on Professor Schabas's article in the

17 Fordham International Law Journal. In his argument relating to the women

18 and children, he refers to it three times. They were related to the

19 possibility of other plausibility explanations, why someone would go to

20 the trouble of evacuating the group, and I can't recall the third one,

21 but I noted three times down.

22 It's respectfully submitted that Professor Schabas, as a

23 professor of law, passing judgement on what are plausible, factual

24 conclusions, is of little assistance to this Court. In fact, all they do

25 is mirror the submissions of the appellant. And the fact that they

1 mirror them may support him in his article, but it's certainly not

2 something that, in my submission, would be a matter of legal import that

3 would assist this court in that determination. Professor Schabas may

4 consider himself a judge after the article, but Professor Schabas can of

5 course draw whatever instance he wants from the argument, but as he was

6 not sitting in the court, does not know the evidence, did not hear it,

7 and did not see it, what he thinks are other plausible explanations

8 remain something for the classroom.

9 In relation to the actual factual issue of not killing the women

10 and children, we've made our submissions in the brief. I'm not going to

11 go over that. What I would like to address is the relevance of the

12 additional evidence. My colleague will address the additional evidence

13 in more detail as it relates to the appellant, General Krstic. But

14 just -- there's just a few interesting points in relation to the women

15 and children. I've already referred to evidence on the trial record of

16 Directive 7, which in the Prosecution's submission is somewhat indicative

17 of President Karadzic's intention and instructions for the safe area.

18 The witness Deronjic testified that President Karadzic's words to him

19 were "Kill the Muslims, all those who were there, all those you can get

20 your hands on." And he did that -- "Kill all those you can get your

21 hands on," -- my recollection is he did that in the context of a question

22 by Deronjic as to what to do with the civilians.

23 Now, President Karadzic then says, "Well, it will be -- depend on

24 the circumstances." And in the Prosecution's submission, the

25 circumstances include the awareness and visibility of any crimes to the

1 international community.

2 At the end of the Directive 7 -- excuse me for one minute. Thank

3 you. I just wanted to get the -- at the end of Directive 7, which is

4 referred to in paragraph 28 of the judgement, you have a comment

5 indicating what the objectives are that blocking aid convoys was part of

6 the plan and indicating that they will reduce the allowance of the aid

7 convoys but at the same time let them in in a limited way. The end of

8 the directive from Karadzic says "Making them dependent on our good will

9 while at the same time avoiding condemnation by the international

10 community and the -- and international public opinion."

11 Likewise, you'll see that when the decision is being made with

12 respect to the civilians, it's the Prosecution's submission, and how to

13 implement the statement by President Karadzic, the civilians that are in

14 Srebrenica are encouraged by the UN Battalion in Srebrenica to go to

15 Potocari. That's a finding by the Trial Chamber. In Potocari, they

16 sought protection within the UN compound. There were UN soldiers. There

17 were United Nations mission observers, UNMOs; there was the UN commander,

18 and there was the UN deputy commander in Potocari. There were

19 negotiations with the UN about the civilians on the 12th of July -- well,

20 starting on the 11th in the evening and then on the 12th at the Hotel

21 Fontana. And on the 12th of July the trial record indicate that is the

22 Dutch Battalion was dealing with Kosoric and Nikolic, both subordinates

23 of General Krstic, regarding the evacuation.

24 Mr. Deronjic also spoke about when he discussed this matter with

25 Karadzic - this matter being the men in Bratunac - he also indicated that

1 they had to be moved -- moved to be killed because of the international

2 community. Deronjic knew full well that when Beara came he was coming

3 for a purpose that was discussed, in the Prosecution's submission, from

4 Karadzic and for the purpose of killing. And what is Deronjic concerned

5 about? He's concerned that they don't do it in his own back yard. Why?

6 Because he says the international community is right there.

7 When there are the negotiations on the 12th, what does Karadzic

8 say to Deronjic? Mr. Deronjic is told basically, "Tell them three

9 options. It's a smokescreen." There's one other matter which he's told,

10 which is actually more telling. He's told to say that the men have to be

11 separated because they're permitted under the laws of war to separate

12 them, to screen them, as war criminals.

13 What does Mladic say at the 12th of July Fontana meeting? He

14 tells the members at the meeting - and this is found by the Trial

15 Chamber - that the men are to be separated because they have to be

16 screened for the purpose of war criminals. Karadzic tells Deronjic;

17 Mladic says the exact same words. There's a coexistence between the two

18 of them and the policy that is used to ensure that the men do not get on

19 the buses. There's a justification that can be used as to why the men

20 not be put on the buses, as they claim under the laws of war, and there's

21 only a limited number; there's between 600 to 900 in Potocari, compared

22 to the 20 to 25 thousand women, elderly, and civilians. Quite frankly,

23 the only inference that it's much easier to do away with men than it is

24 with the women. It's the same when the men are captured out on the road.

25 The UN is a -- on the first transportation of the women and

1 children to be forcibly expelled, the first one or two the UN has

2 permitted to go. Then they're stopped. In fact, there's a finding in

3 the judgement that 19 of the UN's vehicles are stopped as they try to

4 take the buses of women and children and -- and go with them to sort of

5 -- to the front line. Now, you must realise, of course, that the road

6 that they're taking the women and children down on the 12th and the 13th

7 is the road where the men are being captured. It's the Konjevic

8 Polje-Bratunac road and it's the area where the capturing is going on by

9 a number of the units. Now, the inference is that, in the Prosecution's

10 submission, they're prevented from going because they will see what is

11 happening to the men. When you add up those circumstances, it's not that

12 the women were spared. Keep in mind that it wasn't as humanitarian as my

13 learned colleague may try to make you believe. All the women and

14 children and elderly were removed from the buses and forced to walk

15 across the front line of up to a couple kilometres and were not bussed

16 safely to the Muslim side.

17 What you're left with, in the Prosecution's respectful

18 submission, is a coherent and rational explanation consistent with the

19 instructions by Karadzic as to why there is a difference in the treatment

20 of the women, elderly, and the men.

21 Just one last comment. I found it interesting that the

22 justification that the screening of men was necessary for war crimes was

23 not so far from the position of the Defence at trial regarding the

24 killing of the men. The Defence military expert, General Radinovic, says

25 - and I quote - "Mass casualties on the Muslim side are a result of

1 actions which should be classified as combat activities." I think the

2 findings of the Trial Chamber indicate how ridiculous this expert opinion

3 is on that point. And once again, it's an attempt to justify the action

4 in relation to the men, which can be done; it couldn't have been done in

5 relation to the women.

6 The Trial Chamber was fully apprised of the fact that the women,

7 children, and elderly were not killed. This is not something new to them

8 that may cause them to change their decision. And on the basis of the

9 new evidence and the record of the evidence at trial, the Trial Chamber

10 would clearly have come to no other decision.

11 The Trial Chamber found at paragraph 595 that the killings and

12 forcible transfer would have inevitably resulted in the physical

13 disappearance of the Bosnian Muslim population. This is the physical

14 disappearance of the Bosnian Muslims at Srebrenica. It is the physical

15 disappearance of that part of the group which has been identified. And

16 those -- some of the individuals, that being the women and children, the

17 part of the group is not -- and without attempting to look like I'm

18 adopting your questions, President Meron -- the Prosecution's position is

19 that that part cannot reconstitute itself because of the fact that all

20 the men were killed. If you remove all the men, you essentially remove

21 the part of reproduction of that part. That group cannot reconstitute

22 itself. In my submission, the argument of the appellant yesterday,

23 relying on Professor Schabas's article that it would have been more

24 logical to kill the women and children to complete the genocide act, has

25 very little bearing when you're talking about the part.

1 If you -- if you could -- and though I recognise that in my

2 submission Mr. Sepenuk resiled from his earlier position and took the

3 view that it wouldn't matter if the women and children were killed, my

4 understanding of his submissions yesterday was if the women and children

5 were killed, as referred to in the article by Professor Schabas, that

6 would have been a different matter. The logic is the same. The logic is

7 that without the ability to reproduce, that part would inevitably be

8 destroyed.

9 I will leave the third argument that was raised by the appellant

10 regarding the linkages of the new evidence to General Krstic, though I

11 may make some comments about it, but I think you'll hear that the

12 Prosecution's position is that there is a very substantial link, if I can

13 summarise it without taking away from my -- my colleague's submissions.

14 There is a substantial link between the acts of the Supreme Commander,

15 Mr. Karadzic, and the acts of the armed forces. It is not a separate

16 split -- a separation or a split where General Krstic would have no idea

17 what the operational side of Mr. Karadzic was doing. If you look at the

18 evidence, the evidence is that the operational plan was assigned to the

19 chief of staff for Krivaja '95; that's General Krstic. If you look at

20 the evidence, Mr. Karadzic indicates that is he was working with

21 Mr. Krstic -- with General Krstic in the planning of that operation. The

22 evidence is that Deronjic says that they're concerned about Zivanovic,

23 but he's not doing anything about the Muslims in Srebrenica, the ones

24 that are escaping out and doing attacks out of the enclave, and Mr.

25 Karadzic says, "Don't worry. I'll take care of it."

1 In May, Karadzic says to Deronjic, "It's going to happen," as was

2 asked in the question, "Your wish was granted." That's in May. That's a

3 long time before the operation takes place and the July 2nd order takes

4 place, but it's at the time when operations start. It's at the time when

5 -- the takeover of the UN base Echo, at the end of May, and it's shortly

6 after the attack on the 26th of June.

7 In addition, on the 9th, when Deronjic speaks to Karadzic, he

8 says, "I don't think the men that are down in Srebrenica are up to the

9 task." He says, "I think you have to bring back Borovcanin. He's with

10 the MUP, and I know him." That was on the 9th, the 8th or the 9th. On

11 the 10th there is an order that Borovcanin leave the Sarajevo area and be

12 in Srebrenica the next day by 12.00 noon and that he contact General

13 Krstic. This is a link from Deronjic to Karadzic. Karadzic issues the

14 order himself. The military unit from Sarajevo leaves and goes to

15 Srebrenica, and who does he contact? Who is he ordered to contact when

16 he arrives? General Krstic.

17 When Deronjic has a problem, as I've indicated, about Zivanovic,

18 he raises it with Karadzic and does Karadzic implement it as the military

19 commander? Yes. And who was appointed? General Krstic. When Deronjic

20 has a problem with the men in Bratunac, the captured men and doesn't know

21 what to do with them as the civilian head, he contacts Karadzic. What

22 happens? Within three to four hours a colonel arrives unannounced in his

23 office to speak to him about what to do with the captured men. There is

24 a clear link between Karadzic, the military operations, the killing of

25 the men, the initial statement that they must be killed, and the role

1 that Krstic played.

2 And I'll leave that for my colleague to flesh out.

3 The last submission I'll make - and I hope I can finish at least

4 my part of the submissions by 1.00. It will only take me another five

5 minutes or ten minutes to go through this - relates to the qualitative

6 test, the significant section, that aspect that my learned colleague said

7 was not part of international customary law and that the acceptance in a

8 number of the decisions of the Trial Chamber that substantial part can

9 have two components: A numerical component or a significant-section

10 component. If I understand my colleague's submissions, he said the

11 significant section part is not permissible and that notion is not found

12 anywhere until 1985, in the special rapporteur, Mr. Whitaker's, report on

13 genocide.

14 Excuse me. As I've indicated, I unfortunately have not had the

15 chance - though I'm tempted to look through some of the material last

16 night to see whether or not there was anything to the argument that the

17 preparatory works limited a substantial part to something that would

18 exclude a significant section - I'm not in a position to -- to assist.

19 And if the Court feels that it would be assistance, of course we will do

20 some research and file something, as this wasn't raised in the appeal

21 brief. So we haven't addressed it.

22 But just let me speak to the issue, if I may. If you think

23 through what the objective of the Convention is, the objective is

24 essentially to protect a group or a part and to protect it from

25 destruction. Those are, as far as I could think of, the two

1 distinguishing factors. Acts which do either -- that destroy either --

2 intend to destroy either the whole or the part are criminalised. It's

3 clearly the physical or biological destruction, and it's not cultural,

4 and the Trial Chamber specifically found that at paragraph 580.

5 All the material that my learned colleague went through to say

6 that the cultural aspects of members of a community are not protected

7 per se under the Convention, and specifically his reference to the ad hoc

8 committee's draft, relate only to the aspects of their cultural

9 existence. I'll just read a passage from the ad hoc committee's draft.

10 It's not necessary for you -- I'll simply indicate where it is, if you

11 care to refer to it. At registry page 4696 of the appellant's additional

12 materials, this draft states:

13 "Means of cultural genocide and subsection B: Forced and

14 systematic exile of individuals representing the culture of the group."

15 It lists the members, scholars, writers, artists, teachers, so on. And

16 it says: "The cultured and moral -- the cultural and moral life of a

17 group is sustained by its cultured members. If these are removed, the

18 group is no more than an amorphous and defenceless mass. Its language is

19 degraded. It's reduced to a position of inferiority, and the language

20 itself has no longer any political or social significance."

21 This is not what we're talking about in the Whitaker report and

22 what the -- in my respectful submission, the Trial Chambers have found is

23 a significant section. We're not talking about protecting the cultured

24 members. We're not talking about their exile. We're not talking about

25 degrading their language so they have no political or social

1 significance. That's not what this is. That's not what the use of

2 significant section refers to. And the reliance on this passage, though

3 close in language, is far in terms of its intent.

4 What, in my submission, the leadership characteristics of a

5 significant section are relevant to is the ultimate survival of the

6 group. And that's the very object and purpose of the convention.

7 The question is: How do you interpret the word "significant

8 part" or "significant section"? Is is it consistent with the purpose of

9 and object of the Genocide Convention? It's my submission that it

10 certainly is, and in fact it's equally consistent with the use in the

11 Jelisic Trial Chamber. The issue is whether or not a substantial part

12 has been identified for the purposes of a part of a group. It's clear

13 that it appears that the passages referred to by my learned colleague

14 refer to its numerical size. The question is: If a significant section

15 of the group will result or call into question the very survival of the

16 group, why would it not be considered if it's not a large number? The

17 substantial part is a numerical or quantitative criterion. But if the

18 object and purpose of the Convention is the destruction of the group, if

19 a smaller number not classified as numerically substantial, but a smaller

20 number has the same effect, then why would the Convention not protect

21 them if the effect is for the purpose of destroying the group?

22 In fact, it's -- in a way it's somewhat ironic, the argument

23 that's made by my learned colleague. If you can think of a hypothetical

24 where the head is cut off and the body does not survive, the whole group

25 is gone. And if the head is the significant part or the significant

1 section, you actually may have a destruction of a group, a group of

2 indigenous people that require or rely on a particular section for their

3 survival. Once you kill, or destroy, or get rid of that group that has

4 significance to the survival of the indigenous population, you could draw

5 the inference that the intention was to destroy the group. Now, that's a

6 smaller number than a substantial part. If you went into that indigenous

7 group and you actually killed a substantial part numerically, you will

8 succeed with finding that genocide occurred, even though the group may

9 continue to exist. While in the other instance, where the group doesn't

10 exist, it wouldn't be genocide, because all you killed was a numerically

11 smaller part but it happened to have some significance. That can't be

12 the -- the end result of the application of this -- this criteria. It

13 has to be that as long as the destruction is with the intent to destroy,

14 and the group, the part may be smaller, but if it has some effect on the

15 larger group, then the result would be the same.

16 Those are all the submissions I can make on that -- that issue,

17 unless -- well, it's close to the end, and I don't know if at this point

18 in time you'd like to take the break before I pass it over to

19 Mrs. Karagiannakis -- Ms. Karagiannakis, I'm sorry.

20 JUDGE MERON: Thank you, Mr. Farrell. It is now 1.25. And, of

21 course, after the break, the -- the response by the Prosecution will

22 continue.

23 MR. FARRELL: That's correct.

24 JUDGE MERON: If my colleagues are agreeable, I would suggest

25 that we pose our questions after the completion of the -- of the response

1 by the Prosecution.

2 So if it were convenient, I would suggest that we would now rise

3 until 2.30 p.m. And I thank you for your argument.

4 MR. FARRELL: Thank you, Mr. President.

5 --- Recess taken at 12.54 p.m.

6 --- On resuming at 2.33 p.m.

7 JUDGE MERON: Please be seated.

8 We will now continue with the response by the Prosecution. I

9 believe that Mr. Farrell finished for the time being and that

10 Ms. Karagiannakis will now take over.

11 Ms. Karagiannakis.

12 MS. KARAGIANNAKIS: Thank you, Your Honour.

13 I will be addressing factual issues for you today. The first

14 factual issue I'll be addressing is the -- General Krstic's intent for

15 genocide and how the facts establish that and how, therefore, the Trial

16 Chamber judgement is correct. And then I will be addressing points made

17 by learned counsel on issues of the involvement of the MUP, the alleged

18 parallel chain of command, which Mr. Petrusic addressed, and finally the

19 Branjevo Farm.

20 Prior to commencing my submissions, I'd just like to make three

21 points of clarification. Judge Shahabuddeen, you asked counsel for the

22 Defence whether there was any evidence on the record that Karadzic knew

23 about executions during the time that they were occurring. I'd like to

24 direct Your Honour to transcript page numbers 124 and 125 and transcript

25 page number 116 of Deronjic's testimony, where on three separate

1 occasions he says that he advised Karadzic of mass executions, including

2 the execution at the Kravica warehouse.

3 The second point of clarification I'd like to make was - and I

4 apologise to counsel if I misheard what they said - but I understood that

5 counsel had answered the Judge -- one of the Judge's questions by saying

6 that Karadzic said that the prisoners were to be sent to Batkovici.

7 Well, that does not accord with transcript page number 117 and 120 of

8 Deronjic's testimony. Karadzic didn't say that the men were going to be

9 sent to Batkovici. What he -- this was Deronjic's supposition about what

10 Karadzic meant. It's not what Karadzic said. And it's our submission,

11 obviously, Your Honours, that you should rely on the direct -- the direct

12 statements that are reported by Deronjic and said by Karadzic, as opposed

13 to Deronjic's interpretation of what they may or may not mean.

14 Finally, I understood Defence counsel to say to Your Honours that

15 there was no evidence of any direct participation or knowledge of

16 Mr. Krstic in the killing operation. I would refer, on the record -- I

17 would refer Your Honours to the Trial Chamber judgement, paragraphs 378

18 to 423, where the evidence that they relied on to find knowledge and

19 participation are referred to.

20 With those matters clarified, Your Honours, I will move on to my

21 submission in relation to intent for genocide. Actually, there is one

22 other matter that I'd like to address before that. It was suggested by

23 Your Honour that it was men of military age who were targeted. Now, I

24 think it's important to clarify what it was --

25 JUDGE MERON: This was not suggested by me. This was in the

1 decision of the Court.

2 MS. KARAGIANNAKIS: Yes.

3 Now, when the Trial Chamber is referred to men of military age

4 through its judgement, it actually clarifies what it means at footnote 3

5 of the judgement and I'd like just to read that out to you.

6 The Trial Court said, "Throughout this judgement, the term

7 'military age' is used to describe the group of men who were captured and

8 executed following the takeover of Srebrenica. It is a misnomer to the

9 extent that some boys were --" I'm sorry, I can't read it. There's a

10 stamp over it -- "where some men and some boys who were several years

11 younger and several years older than -- than would generally be

12 considered military age were included within this group. Consequently,

13 the term should be understood in its broadest non-technical sense as

14 including the men and boys who were broadly defined by the Bosnian Serb

15 authorities as being within the vicinity of the military age." So it's

16 not a strict definition that the Court was using, it's a generic one.

17 Further, factual findings support that it wasn't the military

18 group that was being targeted. It wasn't the defence forces. The VRS

19 killed all of the men of procreative age; indeed, even more younger men

20 and older men. For that proposition, I'd refer to -- I'd refer Your

21 Honours to the exhibits at trial 276 and 274, which were demographic

22 reports, and they concluded out of the 7.475 persons dead, 199 of them

23 were under 17 years of age; 739 of them were above 60 years of age, and

24 48 are -- who are missing are actually women, and included in the missing

25 group are two 8-year-old girls.

1 Also relevant to this point is that most of the people that were

2 killed were civilians. The column was 10.000 to 15.000 people large.

3 One-third was the 28th Division; that is, the military group. They broke

4 through and escaped, leaving the majority of civilian men to be captured.

5 And I refer Your Honours to the Trial Chamber findings at paragraph 60 to

6 65 on this issue.

7 In addition, many of the people who were killed were -- and were

8 found in the graves were severely handicapped, deformed, or ill. They

9 were civilians physically unable to contribute to the Muslim war effort.

10 Finally, the Trial Chamber held that the decision to execute the men was

11 unfathomable in military terms. I refer Your Honours to the Trial

12 Chamber findings at paragraph 70. So when reference is made to military

13 men, Your Honours, it's not referring to an army. It's referring to

14 basically everyone -- all the men they could get their hands on.

15 Having addressed that general point, I'd like to move on to the

16 issue of the evidence that establishes Krstic's genocidal intent. And

17 what I will try to do is refer Your Honours to the trial judgement and

18 also the additional evidence and how that may affect your decision-making

19 process. My learned leader, Mr. Farrell, has already addressed Radovan

20 Karadzic's strategic goals for the enclave.

21 The Defence on Friday used the term "invisible" to describe

22 General Krstic. Today I think they used the word "passive." It is the

23 Prosecution's submission that General Krstic was not the invisible man;

24 he was the indispensable man to this murder operation.

25 General Krstic was appointed as a result of Karadzic's wish to

1 replace Zivanovic. And for that proposition I refer you to Deronjic's

2 transcript 158 to 159. When Karadzic was considering Plan B, i.e., to

3 take the enclave on the 8th and 9th, who did he send his order to

4 personally? General Krstic. General Krstic admitted during the trial,

5 at transcript page references 2163 to 2165, that he was familiar with

6 Karadzic's Directive 1 and he was also familiar with the subsequent order

7 from the Main Staff, 7.1, and that's General Mladic, which resulted in

8 him drawing up the plan for Krivaja '95. He was Karadzic's man.

9 General Krstic took a lead role in the military operation. As of

10 the 6th of July, 1995, he led the attack on Srebrenica from the Drina

11 Corps forward command post at Pribicevac, which was at an elevation

12 looking down on the town of Srebrenica. He commanded that operation at

13 least until the arrival of General Mladic on the 9th of July.

14 The Trial Chamber found that basically the Bosnian Serbs had

15 succeeded. They had met very little resistance and succeeded in the

16 operation to shrink the enclave and this resulted in a subsequent action

17 to try and take the enclave. Again, they didn't meet much resistance.

18 On the basis of this fact and other facts, the Trial Chamber found that

19 the VRS forces shelled Srebrenica town on the 10th and the 11th of July

20 in order to terrorise the population and drive them out of Srebrenica

21 towards Potocari; i.e., this was the beginning of the forcible expulsion.

22 I'd like to read out the judgement, paragraph 337, about

23 General Krstic's role in this. "The Trial Chamber finds that General

24 Krstic was well aware of the shelling of Srebrenica, would drive tens of

25 thousands of Bosnian Muslim civilians from the town into the small area

1 of Potocari they thought safe because of the UN base there. He must have

2 known, inevitably, basic needs for shelter, food, water, and medicine at

3 the site would prove overwhelming. The Trial Chamber further finds that

4 General Krstic was fully appraised of the VRS territorial goals in the

5 Srebrenica enclave, which included cleansing the area of the Bosnian

6 Muslim population."

7 So General Krstic was at the very least, on the basis of what the

8 Trial Chamber found, deliberately participating as a senior officer in

9 Pribicevac, trying to drive out the population from the 11th. That is

10 very far from the proposition put by the Defence that he was a

11 humanitarian seeking to protect the civilian population.

12 Your Honour, much is made by the Defence about findings relating

13 to planning of the operation. What we can see from the directive and the

14 incremental increases -- incremental increase in the attacks on

15 Srebrenica, from starving the enclave all the way to Krivaja '95, all the

16 way to Karadzic ordering that it be taken, was that the Bosnian Serbs had

17 one strategic goal in mind. But were reacting to the situation on the

18 ground and were formulating operational plans as and when they understood

19 what was going to happen.

20 This is where the first piece of very critical additional

21 evidence comes in. At the trial, this evidence wasn't available. We

22 didn't know when precisely the plan -- the operational plan, as opposed

23 to the strategic goal -- had been made in relation to the takeover of

24 Srebrenica. Well, Mr. Nikolic has now told us in his testimony when at

25 least he knew of the plan.

1 In his evidence, he said that sometime prior to the third Hotel

2 Fontana meeting at 10.00 in the morning he met with Lieutenant Colonel

3 Popovic, a security officer from the Drina Corps; and Lieutenant Colonel

4 Kosoric; he is not a security officer. He also happens to be the

5 brother-in-law of the accused.

6 JUDGE MERON: [Microphone not activated] What date was that?

7 MS. KARAGIANNAKIS: This is the 12th of July, Your Honour. And

8 they -- he asked them, what's going to happen to all these people?

9 Actually, I will quote. And it's transcript page number 1676.

10 "Q. What if anything was said between you, Lieutenant Colonel

11 Popovic and Kosoric that morning in the hotel?

12 Nikolic answers:

13 "A. Yes, we talked. And in answer to my question to Popovic and

14 Kosoric as to what would happen next, Lieutenant Colonel

15 Popovic told me on that day that women and children would be

16 evacuated and they would -- and they would be evacuated in

17 the direction of Kladanj. Also on that day, the men, the

18 able-bodied men, would be separated and those men would be

19 temporarily detained once they had been separated. And when

20 I asked what would happen to them next, he told me that all

21 the balijas needed to be killed."

22 Here we have an eyewitness account that we didn't have at trial

23 and the Trial Chamber didn't have available to it of the earliest date at

24 which we can put a firm -- a firm operation to kill. And what is this

25 operation? It isn't -- there is no separation here between

1 transportation and killing. It's all part of one plan: The women and

2 children will be shipped out and the men will be killed.

3 Now, how does this affect the Trial Chamber findings,

4 particularly in relation to General Krstic's intent? That's the critical

5 issue. Let me put this in context for Your Honours.

6 The night before, Krstic had attended the Fontana meeting.

7 Nikolic, on the following morning, at about 8.00 sees Mladic, Krstic,

8 Popovic and Kosoric at the Bratunac Brigade headquarters. At this time

9 we also know that Mladic, Krstic, and Vasic meet for the purposes of

10 assigning tasks, and we know that from the Annex 3 to the Prosecution

11 Further Notice. At this time it is also found by the Trial Chamber that

12 the VRS know that the column is trying to get out of Srebrenica. Then,

13 before the meeting, Popovic and Kosoric tell Nikolic what the plan is.

14 Immediately afterwards, Mladic goes into the third and final

15 Hotel Fontana meeting with Krstic and he tells the representatives there

16 that the men have to be screened. Now, when he is saying that, in light

17 of this evidence, Your Honour, he knows they're not going to be screened;

18 this is his excuse to separate the men out so that he can begin his

19 killing operation.

20 Subsequently, General Krstic, who's also of course at the

21 meeting, engages in organising the buses. Later that day Krstic was

22 present in Potocari for 1 and a half hours. He was aware of the

23 separations and the horrible conditions there. Also in Potocari were

24 Popovic, Kosoric, and Nikolic. And he -- I refer Your Honours to

25 transcript 1694 to 95. If Krstic didn't know what the plan was, he must

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1 have been the only one who didn't in these circumstances. He is seen

2 with all of the key players in this planning operation on the day. He

3 meets with them. He assigns tasks. He's with Mladic. He then takes on

4 the organisation of one part of the genocidal plan, which is to transport

5 the women and children out of the enclave.

6 Your Honours, if Your Honours accept this evidence and the only

7 conclusion available from this evidence and the other matters I have

8 mentioned, then that means that General Krstic's participation from that

9 moment on, every way that he -- everything that he does in order to

10 further the plan of transportation and executions is knowing and

11 intentional and is an act in pursuance of a genocidal JCE.

12 After the Hotel Fontana meeting, after the plan has been hatched,

13 General Krstic goes on -- General Krstic goes on to be a critical player

14 in the organisation of the -- of the transport of the Bosnian Muslim

15 women and children. He personally directed a complicated logistics phase

16 essential for the accomplishment of the overall criminal purpose.

17 Further, the buses that General Krstic knowingly arranged to send the

18 women and children out of the enclave were the same buses that were

19 diverted to take separated and captured men from detention locations in

20 Bratunac from the 12th and the 13th of July, and I refer the Court to the

21 judgement 157 to 161.

22 He was responsible for securing the route out of the enclave, and

23 he must have known that men were being separated out at Tisca and taken

24 to detention sites. Now, in light of the new evidence, he must have also

25 been known that these people were going to be killed. I refer Your

1 Honours to Trial Chamber paragraphs 368 to 369. Krstic's buses were then

2 used to take prisoners from Bratunac to Zvornik for mass executions on

3 the 13th. I refer Your Honours to 179 to 186 of the judgement.

4 There's also a specific finding that the buses organised by

5 Krstic were diverted in order to pick men up from the collection points

6 along the Konjevic Polje road and taken to the Kravica warehouse where

7 they died -- where they were killed. Also, there is a finding by the

8 Trial Chamber in relation to the Branjevo Farm massacre.

9 Mr. Erdemovic recognises the marks on some of the buses, and the Trial

10 Chamber finds in that regard that these are buses that were previously

11 used to transport women and children out but were now being used to take

12 people to their death at the Branjevo Farm. All of these acts are acts

13 of participation in the overall joint plan to kill and expel.

14 The transportation of the women and children was completed at

15 approximately 8.00 p.m. on the 13th of July; early evening, late evening.

16 This was a critical point in the operation, Your Honour -- or in the

17 plan. Up until that point, the men had been separated in Potocari, the

18 women and children had been shipped out, and there'd been one mass

19 execution at the Kravica warehouse. What remained to be done?

20 What remained to be done in this case was the murder of the rest

21 of the 7 and a half thousand people. Five hundred people were killed at

22 the Kravica warehouse. So this was a very critical point in this joint

23 plan. What happened at that point? At that point, General Krstic was

24 appointed as commander of the Drina Corps by General Mladic. And this is

25 not just a passive process. He assumed command of the Drina Corps. We

1 know this because an eyewitness told the Trial Chamber - Witness II -

2 that he was at the ceremony as the Vlasenica Brigade headquarters at --

3 between 4.00 and 6.00 in the afternoon and that General Mladic appointed

4 General Krstic as the head of the Drina Corps. Subsequently

5 President Karadzic as commander-in-chief issued a decree that he would

6 become the commander.

7 What does this tell us? The only logical -- the only inference

8 that can be drawn from this is that Mladic and Karadzic knew and had

9 confidence in General Krstic. They knew that he would fulfil the tasks

10 that were -- that were assigned to the Drina Corps. What were those

11 tasks? Those tasks were combat operations, capturing prisoners, killing

12 prisoners, and the attack on Zepa. His appointment and assumption of

13 command is -- is in itself an active participation in this plan. He is

14 accepting the responsibility to ensure that he and his subordinate units

15 in the Drina Corps actually fulfil all the tasks that have been assigned

16 to them by their superior command.

17 At this point I'd like to refer Your Honours to some additional

18 evidence that we have. Annex 7, Annex 11, and Annex 14 of the

19 Prosecution's rebuttal evidence. In relation in general to the

20 Prosecution's rebuttal evidence, the Prosecution refers the Chamber to

21 its written submissions contained in the Prosecution's confidential

22 notice and filing of rebuttal evidence and arguments in compliance with

23 the Appeals Chamber scheduling order of 3rd October 2003. I won't go

24 into detail; I just want to make a couple of points. Each of the three

25 documents that I've referred to are combat reports from General Krstic

1 and signed by or for him, sent as commander of the Drina Corps to the

2 Main Staff.

3 Annex 7 is the earliest report where you see General Krstic's

4 signature block as the commander of the Drina Corps. It's received by

5 the communications centre at 19.45, which corroborates the evidence that

6 he was in fact the commander at this point. This is consistent with the

7 Trial Chamber's findings at paragraph 331 of the judgement. Annex 11 and

8 14 are issued on the 16th and the 18th of July, respectively. In the 13

9 and 16 July reports, General Krstic evidences a detailed knowledge about

10 what all the Drina Corps subordinate brigades are doing in the whole area

11 of responsibility, including Zepa, Srebrenica, and Zvornik. And he also

12 takes decisions about what they're going to do in the future, and he

13 tells the Main Staff what those decisions are going to be.

14 In both of these reports --

15 JUDGE MERON: Excuse me. The date of the report mentioned in

16 Annex 7?

17 MS. KARAGIANNAKIS: The date of that report is the 13th of July,

18 1995.

19 JUDGE MERON: Thank you.

20 MS. KARAGIANNAKIS: In both of these reports, General Krstic

21 decides that his troops are to coordinate with the MUP in blocking and

22 capturing Bosnian Muslims escaping from the enclave. This directly

23 refutes the proposition put by learned counsel that in fact the MUP was

24 acting completely on its own in this operation. General Krstic's own

25 documents issued as the commander of the Drina Corps firmly rebut those

1 submissions.

2 The important thing about these reports is that they span the

3 main execution period in the Zvornik Brigade from the 14th of July --

4 14th to the 17th of July and therefore provide incontrovertible evidence

5 that General Krstic was in effective command and control of all the Drina

6 Corps units in the area of responsibility of the corps.

7 Your Honours, command is not an optional activity. It's a

8 position of control and responsibility and leadership. General Krstic

9 was the commander of the Drina Corps. He was therefore responsible under

10 military doctrine for everything his subordinate units did.

11 The Trial Chamber recognised the strict nature of control

12 exercised by commander at paragraph 268 of the judgement in the course of

13 its reasoning where it totally rejects the arguments -- the various

14 arguments put forth by the Defence for parallel chain of command. The

15 only inference that can be drawn pursuant to this principle, pursuant to

16 the additional evidence and the evidence referred to by the Trial Chamber

17 in the paragraphs I've previously mentioned to you, is that from the time

18 General Krstic assumed command of the Drina Corps on the evening of the

19 13th of July, his troops, including those at the lowest levels, were

20 acting in accordance with his wishes and were reporting back to him. He,

21 in turn, was acting in accordance with the wishes of his superiors - in

22 this case, General Mladic, commander of the VRS, and ultimately Radovan

23 Karadzic, commander of -- Supreme Commander.

24 General Krstic's participation doesn't stop there, Your Honours.

25 Witness II reported that General Krstic drove down the Konjevic Polje

1 road on the 13th of July. That same evening General Krstic has a

2 conversation with the MUP commander, Borovcanin. The additional evidence

3 that we have indicates that Borovcanin admitted to Deronjic that his men

4 had carried out the Kravica mass execution. I refer Your Honours to

5 Deronjic T-page -- transcript 124. This is also corroborated by the

6 additional evidence of Dragan Obrenovic at transcript page 2527 to 2529.

7 In that -- I'll read out that conversation to Your Honours:

8 "Krstic: Hello, this is Krstic.

9 "Borovcanin: Hello. This is Borovcanin. General,

10 how are you?

11 "Krstic, "Well, where are you, fuckers?

12 "Borovcanin: I'm here at the command post.

13 "Krstic: How's it going?

14 "Borovcanin: It's going well.

15 Krstic: "Don't tell me you have any problems.

16 "Borovcanin: "I don't, I don't."

17 Borovcanin's troops had committed a mass execution that day and

18 Borovcanin was reporting to Krstic and telling him that things were going

19 well. Yet another piece of evidence that shows that he knew and agreed

20 with wholeheartedly the murder operation and was indeed monitoring the

21 MUP forces on the road, which, again, directly contradicts the

22 submissions put by learned Defence.

23 The next piece of critical participation: The trial -- now, I

24 should just point out that it's true that General Krstic was indeed the

25 commander of the Zepa operation at this time, but the Trial Chamber finds

1 that he is constantly travelling the 34 kilometres between the Drina

2 Corps forward command post in Vlasenica and the Zepa operation and that

3 he's also in communication with all of the officers in his zone of

4 responsibility.

5 Now, when Krstic was at the Zepa operation, one of the main

6 commanders that was with him was the commander of the Zvornik Brigade,

7 Vinko Pandurevic. The Trial Chamber -- now, Vinko Pandurevic was down

8 there not on his own, obviously, but with Zvornik Brigade units

9 participating with General Krstic in the Zepa operation. The Trial

10 Chamber found that Pandurevic was ordered back to Zvornik. The question,

11 of course, was: Why? The finding was that Pandurevic was ordered back

12 to his area of responsibility --

13 JUDGE MERON: I think it would be useful if you were to slow down

14 a bit.

15 MS. KARAGIANNAKIS: Pardon me, Your Honour.

16 The Trial Chamber found that Pandurevic was ordered back to his

17 area of responsibility on the 14th of July, 1995, in light of the dual

18 problems of Muslim combatants and prisoners. They found that

19 General Krstic ordered him back. This is yet another piece of direct

20 participation in the JCE. General Krstic knew that the Zvornik Brigade

21 was having problems in dealing with combat and killing. What is his

22 reaction? He sends the commander of the Zvornik Brigade and his units

23 back to Zvornik. Admittedly, Pandurevic engaged in combat activities,

24 but to facilitate the tasks of the Zvornik Brigade at that time. The

25 findings in relation to this issue, Your Honour, can be -- are at

1 paragraphs 399 and 474.

2 Not only does the Trial Chamber make that finding. They find

3 that once Pandurevic is back in the Zvornik Brigade area of

4 responsibility he is reporting to General Krstic about all of the things

5 that are going on in that zone of responsibility. That includes the

6 murder of thousands of men between the 14th and the 17th and also the

7 combat operations. In particular, I refer Your Honours to an important

8 document relied upon by the Trial Chamber, that is, the 16 July combat

9 report from Pandurevic to the Drina Corps command, where he expressly

10 refers to the strain that the joint tasks of combat and prisoners is

11 causing him.

12 The next piece of direct participation: The Beara 15 July

13 intercept. The Defence has made two submissions, if I understand

14 correctly, in relation to this intercept. One of the submissions relates

15 to what the intercept tells us about General Krstic's knowledge and

16 intent, which was addressed by Mr. Sepenuk; and the other submission was

17 whether or not any action followed from the intercept, which was

18 addressed by Mr. Petrusic. For the purposes of this argument of

19 participation, I'll just address knowledge and intent, and I will

20 address the participation and follow-up of that intercept later in my

21 submissions.

22 Your Honours, if I may refer you to the intercept in the

23 judgement which can be found at paragraph 380. And I'll make some

24 submissions on it, and then I foreshadow using a diagrammatical aid to

25 assist in my oral submissions.

1 First of all, it's interesting to note that in relation to this

2 intercept General Krstic denied ever having had that conversation at

3 trial. This is referred to by the Trial Chamber at 385 of the judgement.

4 He said he -- in fact, he never had any conversation with Colonel Beara

5 between the 13th and the 17th of July. It appears as though, in their

6 submissions, the Defence is now saying that indeed the conversation did

7 occur but that the interpretation given to it by the Trial Chamber is not

8 the correct one. In the Prosecution's submission, it is certainly the

9 correct one, particularly in terms of intent and knowledge.

10 It is not contested that in this conversation Beara is

11 considering Krstic for manpower to kill 3 and a half thousand prisoners.

12 What is Krstic's response? His response, very simply, is -- he says

13 he'll see what he can do. And he doesn't just say it once or twice, but

14 he says it three times throughout the intercept. "I'll see what I can

15 do. I'll see what I can do. I'll see what I can do." He knows the

16 murder operation is going on, and he's offering his assistance.

17 Now, in order to better illustrate that point, Your Honours, I

18 have a diagram or -- I'd like to refer to a diagram. Now, I had provided

19 this diagram to the legal officer and the Defence this morning, and I

20 just wanted to use this as an aid to my oral submissions in order to

21 basically speed them up and make the points a little bit more quickly.

22 This diagram is no more than a representation of the -- the structure of

23 the Drina Corps, as found by the Trial Chamber.

24 Oh, sorry, it's the first -- sorry. Pardon me, Your Honours.

25 It's the first diagram. And I'd ask that you be permitted to

1 view it. I understand my -- my colleague has something to say about it.

2 But I'd ask that you be permitted to have a look at what it is so you can

3 deal with the issue.

4 JUDGE MERON: May I just inquire what is the view of the Defence

5 about our viewing this?

6 MR. PETRUSIC: [Interpretation] Your Honours, it is not customary

7 that when arguments -- legal arguments are being presented, particularly

8 in appeals, this kind of objection is made, but the Defence considers

9 this to be evidence on the part of the Prosecution for the simple reason

10 that my learned colleague is referring to an intercept which was

11 transcribed and made note of and which exists as an exhibit and existed

12 during the -- during the trial as an exhibit. So that looking at this

13 diagram, which we were given this morning, I feel that it is a new piece

14 of evidence and possibly it was the intention on the part of the

15 Prosecution to use this diagram to show the participants in the

16 conversation. But the participants in the conversation were represented

17 in the Prosecution exhibits during the trial stage and the conversation

18 held on the 15th of July, in actual fact, between General Krstic and

19 Colonel Beara. So they were the sole, direct participants in that

20 particular conversation. They were on the telephone line. So that I

21 consider that this diagram, regardless of the shape and form it takes,

22 whether as a new piece of evidence or whether it is termed in any other

23 way, I do not consider that it can be relevant when interpretations are

24 made of this particular intercept.

25 JUDGE MERON: Thank you, Mr. Petrusic. I will consult with the

1 Bench and we will give our ruling in a second.

2 [Appeals Chamber confers]

3 JUDGE MERON: Could I ask the Prosecution whether she really

4 needs this diagram to introduce it now, whether she cannot make --

5 whether you cannot make your argument without referring to it.

6 MS. KARAGIANNAKIS: [Microphone not activated]

7 THE INTERPRETER: Microphone, please, Ms. Karagiannakis.

8 MS. KARAGIANNAKIS: I'm sorry. Of course, as Your Honour

9 pleases.

10 Well, I'll simply make my submissions of the diagram containing

11 the judgement, which is quite smaller and a little bit more difficult to

12 see.

13 JUDGE MERON: I would really appreciate that. Out of fairness to

14 the Defence, I would prefer not to include it at this very late stage.

15 Just make -- I think you could make your argument without referring to

16 that.

17 MS. KARAGIANNAKIS: Yes. I --

18 JUDGE MERON: So please carry on with your argument. I do

19 appreciate your cooperation on that.

20 MS. KARAGIANNAKIS: I'd just like to go through the names

21 mentioned in the intercept and point out who these people were -- are.

22 The first person mentioned is Furtula.

23 Beara says:

24 "General" -- to Krstic -- "Furtula didn't carry out the

25 boss's order."

1 Your Honours, Furtula is the commander of the 5th Podrinje Light

2 Infantry Brigade. This is a subordinate unit of Krstic.

3 Beara says:

4 "I need 30 men, like it was ordered."

5 Krstic says to him:

6 "Take them from Nastic or Blagojevic."

7 Lieutenant Colonel Milomir Nastic is the commander of the 1st

8 Milici Light Infantry Brigade. He is also a subordinate of General

9 Krstic. Blagojevic is also -- he's the Bratunac Brigade commander;

10 again, a subordinate of General Krstic.

11 It goes on. Krstic says:

12 "Again, check with Nastic. Check with Blagojevic."

13 I.e., check with my subordinate commanders about getting these

14 men. Then he says:

15 "Check with Blagojevic and take his Red Berets."

16 The Red Berets are a unit of the Bratunac Brigade; again,

17 subordinates of General Krstic. Then Krstic says:

18 "Take -- then take those MUP -- Ministry of the Interior guys

19 from up there."

20 Beara says:

21 "No, they won't do anything. I talked to them. There's no

22 solution for the men -- for those 15 to 30 men with Indic."

23 So Beara is saying that the MUP is not going to do the

24 executions. Then he suggests there's no solution for those 15 to 30 men

25 with Indic. Who is Indic? Indic is a subordinate of Major Furtula, who

1 I've just mentioned, and both of those men are actually subordinates of

2 General Krstic at this time.

3 Then General Krstic says:

4 "Ljubo, you have to understand me. You guys fucked me up

5 so much."

6 And in the submission of the Defence this is some sort of

7 evidence of reluctance, disapproval, some -- showing that he doesn't

8 really want to help in this murder operation. Your Honours, I'd like to

9 refer you to the specific consideration of the this reluctance by the

10 Trial Chamber. The findings in this regard can be found at paragraph

11 382.

12 It says: "General Krstic's initial reluctance to provide any men

13 for Colonel Beara is consistent with the fact that by this time units of

14 the Zvornik Brigade had been withdrawn from Zepa and sent back to address

15 the urgent situation in their zone of responsibility."

16 The reason that there is some type of reluctance is because

17 he's -- General Krstic has already sent men away from Zepa back to

18 Zvornik in order to meet the dual requirements of killing in combat and

19 he just doesn't want to lose any more men. But he doesn't say no. He

20 says, "I'll see what I can do. I'll see what I can do. I'll see what I

21 can do," and he refers Beara to -- everybody he refers to -- everybody

22 who is referred to in here is a subordinate of him. He refers Beara to

23 all -- to a number of his subordinates. "Take the killers from my

24 subordinates." That's what's going on here, Your Honour.

25 So putting aside the issue of whether anybody actually arrived -

1 which I will address later - this is incontrovertible knowledge of --

2 this is incontrovertible proof of General Krstic's knowledge of the

3 murder operation and the fact that he is a willing participant in it, and

4 frankly is one of the most important and critical pieces of evidence

5 showing his genocidal intent. He is offering to help in this exercise.

6 The final point I'd like to make in this regard, Your Honours, is

7 the reason why Beara needs to talk to General Krstic. The Main Staff is

8 an organisational shell. It only has two operational units: The 10th

9 Sabotage Detachment and the 65th Protection Regiment. It doesn't have

10 manpower. That's why Beara is forced to seek personnel to conduct this

11 murder operation from the Drina Corps and indeed from the MUP, and is

12 this case the MUP won't do it.

13 JUDGE MERON: Do you -- can you explain why?

14 MS. KARAGIANNAKIS: Well, I think it's apparent from the

15 intercept. He's -- Ljubo, "I asked the MUP, but they won't do it."

16 JUDGE MERON: Why wouldn't they do it?

17 MS. KARAGIANNAKIS: Pardon me?

18 JUDGE MERON: Why wouldn't they do it?

19 MS. KARAGIANNAKIS: I don't know. I can't speculate as to why

20 the MUP won't do it. But clearly Beara is saying the MUP won't do it

21 here. So I can't take that any further, Your Honour.

22 JUDGE MERON: Thank you.

23 MS. KARAGIANNAKIS: Although -- actually, when I think about it,

24 this is the 15th of July, and what we do know from the additional

25 evidence presented by the Defence is that Vasic -- that there are

1 basically two MUP units operating in the Srebrenica operation. One of

2 them is Borovcanin, who I've mentioned previously, and the other one is

3 Vasic. Vasic is the person who's sending the reports to the MUP that are

4 the -- additional evidence of the Defence. Now, in those reports, Vasic

5 is talking about the difficulties that they're having -- the obligations

6 that they have to capture men on the road and that they're having

7 difficulties in dealing with it. So there may be an explanation in that;

8 i.e., they don't have the manpower either.

9 One thing is certainly true: In terms of manpower in that

10 region, it's the Drina Corps that has thousands of soldiers there. As

11 far as we know, the MUP forces there are constitute bid two groups,

12 Borovcanin and Vasic, and that there are only two groups available to the

13 Main Staff. For this reason, I think the Trial Chamber in fact makes a

14 finding about this. And if you'll just give me a moment, I'll find it.

15 [Prosecution counsel confer]

16 MS. KARAGIANNAKIS: Your Honour, what I'll do is during the break

17 I will -- after I sit down, I'll try and -- I will ask my colleagues to

18 try and find that reference.

19 So as not to lose time, I will proceed. But there's a finding in

20 the Trial Chamber judgement about the Drina Corps being indispensable to

21 the -- to the conduct of this operation, along those lines that I've

22 explained.

23 Now I come to the final and perhaps the most compelling piece of

24 evidence with respect to General Krstic's exercise of command in relation

25 to the executions. It was General Krstic's submission or position at

1 trial that Colonel Popovic was one of the key security officers who were

2 -- who was running and monitoring the murder operation. He alleged that

3 Popovic was operating pursuant to a parallel chain of command. The

4 evidence presented at trial and the Trial Chamber's findings fairly

5 firmly refute that position, as does the additional evidence, which I

6 will go into later on in my submissions. But the Trial Chamber finds

7 that Popovic -- who Krstic himself says was critical in organising and

8 monitoring the murder operation -- actually reports back to General

9 Krstic, and they find that this is evidence of General Krstic monitoring

10 his subordinates in the killing operation. These findings can be found

11 at paragraphs 400 to 404.

12 Now, one of the intercepts relied on there is a subject of

13 argument before Your Honours, and that's the 16th of July intercept. I

14 intend to show Your Honours why the additional evidence in fact supports

15 this finding and does not affect it at all. Popovic was reporting to

16 Krstic. And I'd just like to make reference to -- quote one final

17 intercept in relation to that. At 403 of the Trial Chamber judgement, it

18 states:

19 "Further intercepts taken on the 17th of July 1995 support a

20 finding that Colonel Popovic was reporting to the Drina Corps command and

21 specifically to General Krstic about executions. At 12.42 on that day,

22 Zlatar 1, which is the code name associated with General Krstic as the

23 Drina Corps commander, called Major Golic from the Drina Corps

24 intelligence section looking for Colonel Popovic. Major Golic, referring

25 to Zlatar 1 as General, informed him that Popovic is still in Zvornik but

1 will be back in the afternoon. Zlatar 1, General Krstic, then instructed

2 Mr. Golic to find Popovic and have him call the forward command post

3 immediately. He's telling him, "Report to me immediately." Several

4 hours later, Colonel Popovic was overheard in an intercepted conversation

5 in which he said the following:

6 "Hello, it's Popovic. Boss, everything is okay. That job is

7 done. Everything is okay. Everything has been brought to an

8 end. No problems. I'm at the base, at the base. That all

9 gets an A, an A. The grade is an A. Everything is okay.

10 That's it. Bye. Take care."

11 The Trial Chamber states that, "Although General Krstic was not

12 specifically identified in the conversation, given that the executions

13 have been completed by this time, and the preceding conversation in which

14 General Krstic was seeking a report from Popovic and Popovic's reference

15 to "boss", the inference is very strong that this conversation recorded

16 Colonel Popovic recording -- reporting to General Krstic about the

17 completion of the executions." And not just that; about the A-job that

18 the Drina Corps has done in the completion of the executions.

19 There are a number of other pieces of evidence referred to in the

20 trial judgement that go directly to General Krstic's participation.

21 Corroborative evidence is found by the Trial Chamber in the sense that --

22 from paragraphs 406 through to 412, that he is in contact with the

23 critical players in the murder operation. First and foremost General

24 Krstic; Colonel Beara; Colonel Popovic; Colonel Pandurevic, commander of

25 the Zvornik Brigade. Basically not only was there no parallel chain of

1 command here, Your Honour, but General Krstic was in the centre and

2 communicating with all the critical people engaged in this murder

3 operation. His boss, General Mladic; his colleague, Colonel Beara; his

4 subordinates, Colonel Popovic and Colonel Pandurevic.

5 The inescapable conclusion, Your Honour, is that General Krstic

6 was in on the expulsion and murder plan from the beginning and that he

7 was constantly monitoring his troop's participation in it, which is

8 detailed in the Trial Chamber findings and have -- has been addressed by

9 my colleagues previously, but there's extensive Drina Corps participation

10 in the murders. It is this evidence that was relied upon by the Trial

11 Chamber to find him guilty of genocide and their findings were entirely

12 reasonable, particularly in respect of the additional evidence adduced by

13 the Prosecution.

14 Now, actions speak louder than words, but there is also other

15 evidence that General Krstic had genocidal intent. General Krstic was

16 standing next -- was walking next to General Mladic when they had taken

17 Srebrenica on the 11th of July and Mladic said, "It's now time to take

18 our revenge on the Turks." At the Hotel Fontana meetings he was sitting

19 at the right-hand side of Mladic when Mladic threatening the Muslims with

20 disappearance. General Krstic himself used derogatory language with

21 respect to Muslims. On the 17th of July, he asked Captain Trivic whether

22 he'd killed the Turks up there -- now, that intercept is taken as

23 referring to combat, so I don't want to overstate its importance. I just

24 merely put it forward for Your Honours' consideration about the

25 derogatory attitude, the racist attitude that General Krstic had in

1 relation to the Bosnian Muslims.

2 In November 1995 -- well, the Trivic intercept, Your Honours, was

3 Exhibit 650 and 651 at trial.

4 In November 1995, in an interview with Drinski magazine, which

5 was the official military magazine of the Drina Corps, he referred to

6 Muslims as balijas, a term he himself actually recognised as a profoundly

7 offensive for a Muslim. That's trial Exhibit 744. And Mr. Krstic --

8 General Krstic's testimony at 6514. That's on the trial record.

9 Not only do you have Karadzic saying that they should all be

10 killed, Mladic using highly threatening and derogatory language towards

11 them, himself using racist language towards the Turks, but there is

12 the -- the trial record shows that General Krstic's subordinates also

13 used this type of language as they were committing their heinous crimes.

14 The commonly-used derogatory term "Turks" and other terms were all

15 throughout the -- the intercept material and -- and official army

16 documents.

17 One intercept in particular was quite striking. With respect to

18 Muslim prisoners captured on the 13th of July, one of the speakers in

19 this conversation refers to them as "Turk," the other one says, "Fuck

20 them, they weren't human beings." That's trial Exhibit 513. And as I

21 said before, the terms "Turks" and "balijas" were commonly used by the

22 executioners when they were committing their crimes. I would like --

23 JUDGE MERON: Just if I may alert you to the fact that you have

24 another 15 minutes.

25 MS. KARAGIANNAKIS: Fifteen? I was going to go into the

1 victim-impact submissions, but I -- I just will make two points in

2 relation to that.

3 The evidence at trial was that the surviving Bosnian Muslim

4 population had a decreasing birthrate. That's trial transcript 5784 and

5 5786. That's all I'll say there, because obviously it relates to the

6 issue of biological reproduction, and it's been an issue that's been

7 arising in these proceedings.

8 In conclusion, Your Honours, in respect of General Krstic's

9 genocidal intent, it's the Prosecution's submission that on the evidence

10 that it's put forward and on the evidence -- the additional evidence and

11 the trial record Krstic was indispensable to the murder operation and he

12 chose to perpetuate it. The references are, "The Main Staff was an

13 organisational cell without manpower except the two units." That's Trial

14 Chamber paragraph 101. I finally found it. It couldn't have carried out

15 the mass crime on its own. The Drina Corps was indispensable to its

16 commission. That's Trial Chamber judgement paragraph 266. They had to

17 use the Drina Corps in whose area of responsibility were -- in whose area

18 of responsibility the crimes were committed. They did it through General

19 Krstic. He monitored and supervised it and he participated in

20 facilitating the plan. We also say that he was in on it from the

21 beginning and therefore all his acts in relation to the transportation of

22 the Muslim population was also an act pursuant to the genocidal JCE.

23 Krstic was in command and therefore control of the Drina Corps

24 from the evening of the 13th of July, when the vast majority of prisoners

25 were alive. He was asked to help on the 15th of July. Even at that late

1 stage, he could have saved thousands of lives by ordering his troops not

2 to participate and even stop the executions. Instead, he agreed to help.

3 Thereafter the Drina Corps forces were used extensively to continue the

4 killing operation with his knowledge.

5 Your Honour, that concludes my submissions on the factual basis

6 of genocidal intent. And as I only have probably about 12 minutes left

7 now, I would just like to rely on the previous submissions I've made in

8 respect of the MUP and the fact that the Trial Chamber found that the --

9 the MUP and -- and the Drina Corps, with General Krstic as their

10 commander, were acting hand in glove together.

11 In relation to the allegation that the MUP did the executions,

12 the only evidence that we have that the MUP was doing executions is the

13 additional evidence that indicates Borovcanin's groups were involved in

14 Kravica warehouse. If you look through the trial record, there's no

15 finding in relation to the MUP in relation to the other executions. I'm

16 not saying that they did not participate. I'm simply saying that there's

17 nothing to support that on the -- on the trial record. And I understand

18 investigations are ongoing, but their submission is simply not supported

19 in fact.

20 I'm just going to move quickly to the Branjevo Farm issue. As I

21 said previously, the 16th of July intercept referred to by Mr. Petrusic

22 was actually used for two propositions: The first proposition was that

23 General Krstic -- sorry, Colonel Popovic was reporting to General Krstic.

24 I would refer Your Honours to the additional evidence of both Butler and

25 Obrenovic on this. They agree that particular references in this

1 intercept -- that the particular references in this intercept that were

2 used by the Trial Chamber to support their conclusion remain unaffected.

3 In fact, the additional evidence entrenches that interpretation.

4 In relation to whether or not Bratunac Brigade -- the intercept

5 could be used for the proposition that the Bratunac Brigade actually

6 arrived pursuant to General Krstic's commitment to provide troops, the

7 Prosecution puts the following proposition now: On the basis of what

8 both Butler and Obrenovic say, it seems as though there may be another

9 reasonable interpretation to that particular intercept; i.e., the

10 reference to troops arriving late in that intercept might indeed be in

11 relation to reinforcements arriving in the Zvornik Brigade area of

12 responsibility. In short, it's the Prosecution's submission that this

13 was not the primary piece of evidence used by the Trial Chamber to find

14 that Bratunac Brigade personnel participated.

15 In fact, what the Trial Chamber did is they relied on the

16 evidence of Drazen Erdemovic. He said that soldiers arrived from

17 Bratunac. They were wearing VRS uniforms. Now, whether or not these

18 soldiers were members of the Bratunac Brigade is not, in the

19 Prosecution's submission, critical. The Prosecution submits that if you

20 just take General -- sorry, Erdemovic's evidence on its face value

21 without making any interpretation as to whether they were actually

22 Bratunac personnel or not, just saying that they are soldiers from

23 Bratunac, it's our submission that those soldiers nonetheless arrived as

24 a result of that telephone conversation.

25 Now, there are a number of things on the record that support it.

1 Of course, it's -- it's related to the submissions I've made previously,

2 but basically Erdemovic testified that the men who arrived were soldiers

3 from Bratunac who were wearing VRS uniforms. Therefore, it can be safely

4 assumed that they were not paramilitaries or mercenaries; they were

5 regular soldiers.

6 In the intercept, Beara confirms that is the MUP won't help, so

7 we know that these those people are not the MUP. The Main Staff had two

8 assets, the 10th Division and the 65th Protection Regiment. The 10th

9 Division was already there. That's the unit that Erdemovic was a member

10 of and was committing the murders. There's no suggestion on the record

11 in any of the evidence that it was the 65th Protection Regiment.

12 Further, if it was the 65th Protection Regiment, Beara wouldn't have to

13 ask Krstic for help because the 65th Protection Regiment is not a

14 subordinate unit of Krstic; it is a subordinate unit of the Main Staff.

15 In conclusion, Your Honours, these executioners didn't arrive at

16 a specified execution point in a remote region in a Zvornik Brigade area

17 of responsibility in order to commit murders by accident or coincidence.

18 They were VRS soldiers and they were sent there. The evidence on the

19 record says that General Krstic, in response to General Beara's --

20 Colonel Beara's request offered to help. The only conclusion that one

21 can reach is that the soldiers referred to by Erdemovic are in fact the

22 soldiers that were sent by General Krstic and therefore the extra added

23 element of participation in respect of this intercept remains; that is,

24 the substance of the Trial Chamber's verdict -- or finding in relation to

25 the 15 July intercept and the delivery of personnel is not effected.

1 That concludes my submissions, Your Honour.

2 JUDGE MERON: Thank you. Our scheduling now would be somewhat

3 affected by how my colleagues feel about asking questions now.

4 [Appeals Chamber confers]

5 JUDGE MERON: Well, if we are going to have questions, it would

6 only be fair that we have a break now for the interpreters, and that

7 would leave us the necessary leeway.

8 So we will now rise for 30 minutes and then resume.

9 --- Recess taken at 3.45 p.m.

10 --- On resuming at 4.19 p.m.

11 JUDGE MERON: Please be seated.

12 Before turning to the reply by the Defence, I will invite my

13 colleagues, the learned Judges, to ask questions.

14 Judge Pocar, the vice-president.

15 Questioned by the Court:

16 JUDGE POCAR: Thank you, President. I wish to thank the

17 Prosecution for its contribution to clarifying the issues -- some issues

18 of this appeal, as I'm grateful to the Defence for their contribution

19 this morning.

20 From the Prosecution, I would like now to have some clarification

21 in order to be sure as to what the Prosecution position is on a couple of

22 points concerning the notion of genocide they maintain.

23 Mr. Farrell, I take it that it is your position that for the

24 purposes of Article 4 of the ICTY Statute, or indeed Article 2 of the

25 Genocide Convention, a part of a group or a substantial part of a group

1 should be considered independently, irrespective of the whole of the

2 group, without entering into consideration of proportions of that -- of

3 the size of that part, vis-a-vis the entire group; am I correct?

4 MR. FARRELL: Yes, Your Honour.

5 JUDGE POCAR: If it is so, does this entail that it is also your

6 position that for the purposes of this appeal it would be irrelevant to

7 regard as a targeted group the Muslim population of Srebrenica or the

8 Muslim population of Bosnia as a whole, provided the number of people

9 killed is such that per se may be considered as representing a

10 substantial part of the Muslim population in the region?

11 MR. FARRELL: Yes, that's correct.

12 JUDGE POCAR: If that is so, have I -- and this is the question I

13 wanted to put to you: Have I to assume that your position is the killing

14 of 7500 men of military age or the attempt of killing 15.000, as you

15 mentioned, constitutes genocide because it -- that killing by itself --

16 represents a substantial part of the Muslim population, or is it your

17 position that that killing constitutes genocide because it has or had the

18 effect of causing the physical disappearance of the entire group

19 represented by the Muslim community of Srebrenica? I have the impression

20 that you pleaded both positions, but I may be wrong. And therefore I ask

21 for clarification. Do you maintain both of these positions or just one

22 of them? And if you maintain both, wouldn't you see there some

23 contradiction as to the definition of the part of a group in the context

24 of the notion of genocide or are you pleading both of them as alternative

25 positions, since both may support the Prosecution's case? Which is

1 exactly your clarification on that point? I would be grateful for the

2 clarification.

3 MR. FARRELL: Thank you, Judge Pocar. As you're correct, both

4 positions were actually put if forward.

5 The attempt I tried to make was that the Prosecution position is

6 that the judgement stands for the proposition that the killing of the men

7 leads to the destruction or annihilation, as they say, of the Bosnian

8 Muslims at Srebrenica. The Defence took the position that the Trial

9 Chamber's judgement only stood for the proposition that the intent was to

10 destroy the men and the men only and that that part was numerically too

11 small. Therefore, the Prosecution's position is that the Trial Chamber

12 was correct that the targeting of the men resulted in the destruction of

13 the group in Srebrenica and that group is a substantial part.

14 If the -- if the Prosecution's reading of that judgement is

15 incorrect, it's still the Prosecution's position, in the alternative,

16 that the intention to kill somewhere between 10 and 15 thousand men on

17 the basis of their group characteristics would be sufficient for the

18 in-part requirement of genocide.

19 JUDGE POCAR: I thank you. That's very clear.

20 JUDGE MERON: Judge Schomburg.

21 JUDGE SCHOMBURG: Thank you, Mr. President.

22 Coming back just to the figures you mentioned, 7.500, 15.000.

23 Are these figures, in your view, really of importance? Isn't it true

24 from your point of view that genocide is a very specific crime, that --

25 and not as usual we start analysing the acts and conducts and then

1 inferring the intent? That's relatively easy. But as to the fact that

2 there is a surplus of specific intent necessary for committing this

3 crime, it's extremely difficult to identify what is this specific intent.

4 Would you share with me the view that in case a person had the specific

5 intent and only one person was killed, that this can amount to genocide?

6 MR. FARRELL: Yes, Your Honour.

7 JUDGE SCHOMBURG: Wouldn't it be correct that even if nobody

8 would have been killed, that under the Statute foreseen only for the

9 crime of genocide the punishability of the attempt, this would amount to

10 the attempt of genocide?

11 MR. FARRELL: Yes, I would agree with that, Your Honour.

12 JUDGE SCHOMBURG: So having listened carefully to the

13 arguments -- the factual arguments of both parties, it's really

14 difficult. The arguments of the one side seem to be -- the factual

15 arguments seem to be compelling from your side; then listening to your

16 contribution, one really seems to be convinced it can be the only one

17 solution. Therefore, we have to be extremely careful in analysing the

18 facts and, as you correctly said, the acts and the conduct of Mr. Krstic.

19 You drew our attention to a number of documents: For example,

20 the famous Annex 7 of the 13th of July, 1995, which indeed shows that

21 this document was signed - apparently the authenticity is not contested -

22 by Major General Radislav Krstic the 13th of July. But here it reads:

23 "The Main Corps forces will continue to defend the chief lines." And

24 after, two lines or three lines later: "The purpose is to disarm these

25 first Muslim forces, protect the population and property, and at the same

1 time secure the lines of defence from attacks from behind." So a number

2 of documents seem to be in part ambiguous; some convincing in one

3 direction, some in the other direction.

4 Why do I come back to this? Because I think a careful analysis

5 is needed to make a distinction between the intent to kill, the intent to

6 exterminate, and the intent to commit genocide, in the words of

7 Honourable Judge Wald, the crime of crimes. Therefore -- unfortunately,

8 I haven't got yet an answer from the side of the Prosecution. Given the

9 case, there was on a higher level this specific intent. And bringing all

10 the factual evidence together, in your submission, what would be the

11 final result as to the fact that we have under Article 4 to determine

12 what of the following acts Article 4(3) are punishable in this case,

13 genocide or complicity in genocide?

14 And it was not without reason - and I am convinced that a number

15 of people in this Tribunal -- in this courtroom were surprised when I

16 asked a line of questions -- put a line of questions to Witness Deronjic

17 relating already to 1991 December and the beginning of 1992. Maybe you

18 have asked what has all this to do with this. I think, couldn't it be

19 true that as to the fact that the Prosecution is limiting its case to

20 Srebrenica and not trying to show and give us an overall view, starting,

21 I believe - I don't know, but to a certain extent one can rely as there

22 was a guilty plea on this - starting already by instructions given in

23 1991, that one can come to the conclusion that at least on a higher level

24 there was such an intent? Could I please hear your submissions on this

25 in case one comes to the conclusion that on a higher level there was in

1 fact -- and, of course, based on the evidence before us -- that there was

2 this specific intent, at least on a higher level. What would be then the

3 role of the accused in our case?

4 MR. FARRELL: Thank you. You've raised some factual issues,

5 which I'll presume for the sake of your argument, of course, and some

6 legal issues.

7 Without -- I have a number of responses, but without sounding

8 overly simplistic, if the finding that this convicted appellant has --

9 has the genocidal intent, as found by the Trial Chamber, then of course

10 that -- if there are others who were higher up in the chain of command

11 that have the similar intent or are part of the JCE, then it makes no

12 difference, obviously. He's still a member and will be final liable

13 based on the Trial Chamber's conclusion.

14 The next question that appears -- or at least I'll assume is

15 included is if there is a distinction in your mind, either in terms of

16 fact or -- fact, meaning the acts, or knowledge between those who might

17 be higher up and -- and someone in the position of a mid-level or a lower

18 level, hypothetically. Then the question becomes: What are the

19 elements, the required elements, for those? Complicity, aiding and

20 abetting, and genocide, I think, is essentially what it comes down to.

21 If the person in the hypothetical case - we're talking about in

22 this case, where it's a General, Main Staff level or General Krstic

23 level, and if they are in the JCE, then it's not a problem, because

24 they'll have to have the mens rea.

25 In the Prosecution's submission, first of all -- this is before

1 Your Honours in the Ntakirutimana appeal, so I won't prejudice the end

2 result in that case as we've appealed the modes of liability in the

3 crime. In my submission, the starting point is that complicity, at least

4 as I understand it and the way that the Prosecution has argued it

5 recently, it's not a crime. It's a mode of liability. Complicity is the

6 manner in which you commit the crime. It's the same as aiding and

7 abetting. Though in Article 4 of the Statute complicity is listed as one

8 of the acts that is punishable with other forms of inchoate crimes and

9 incitement and other forms. It's not -- in my respectful submission,

10 it's actually not a separate crime, it's a form of participation in

11 addition to aiding and abetting. The Semanza Trial Chamber judgement in

12 the ICTR has held that because of the drafting and the incorporation of

13 the Genocide Convention directly into our Statute -- in this case the

14 Rwanda Statute, of course -- combined with 6(1) has created an overlap in

15 the form of liability, and that form of liability is in Article 7(1),

16 aiding and abetting, and in Article 4, complicity. The only distinction

17 that I can conceive of between complicity and aiding and abetting is

18 there was some reference in the ICTR jurisprudence that complicity

19 actually would include accessory after the fact.

20 The aiding and abetting, as defined by our jurisprudence in

21 Tadic, would include assisting, encouraging, or lending moral support.

22 For the most part, unless you could incorporate some type of accessory or

23 assistance of the fact into complicity, which is not found in aiding and

24 abetting, then for all intents and purposes they are the same. The mode

25 of participation is one of someone who as an accomplice commits the acts.

1 The distinction then between aiding and abetting and complicity,

2 if I can place them together for the sake of my response, and the

3 committing of genocide would be that the acts would be one of assistance

4 for complicity or aiding and abetting, while for genocide it would be the

5 actual commission or the direct acts.

6 The next question is: If that's the difference between the act

7 element, is there a difference between the mental element? And it's the

8 Prosecution's position that there is. I appreciate that there is some

9 jurisprudence in the ICTR that says that complicity requires a specific

10 intent and aiding and abetting requires knowledge. With respect, that

11 doesn't make -- that doesn't make -- well, in the Prosecution's

12 submission, it's a bit illogical. In fact, depending on the -- some say

13 it's the other way around, and some indicate that you need aiding and

14 abetting. The difference between aiding and abetting is a particular

15 manner of participation but you would still need the specific intent.

16 The Prosecution's position in Ntakirutimana, which is before the

17 Appeals Chamber, is that complicity and aiding and abetting require

18 knowledge. The form -- the direct form of participation, the commission

19 for genocide, requires the specific intent. And that the Prosecution

20 will be arguing in that case that complicity as a mode of participation

21 and aiding and abetting as a mode of participation are for those persons

22 who aid and abet to assist with the knowledge of the crime to be

23 committed and take steps to assist the perpetrator with that full

24 knowledge. This Tribunal has, as you're fully aware, Your Honour, has

25 decided in Tadic that aiding and abetting requires knowledge. This

1 Tribunal has also held in the Krnojelac Appeals Chamber judgement that

2 aiding and abetting a specific intent crime requires knowledge. The next

3 step is whether or not aiding and abetting the specific intent crime of

4 genocide requires knowledge.

5 The only distinction that I can think of is the actual wording of

6 Article 4(2) of the Statute, which specifically says that "Genocide means

7 any of the following acts committed with intent to destroy." Now, that

8 could be interpreted as being that the acts -- the acts must be committed

9 with an intent to destroy. It would be my submission though -- this is

10 obviously without any chance to brief this issue and obviously we've got

11 submissions in the Ntakirutimana which I don't want to prejudice - but it

12 would by my submission that that's for the commission of genocide.

13 That's not for acts of complicity or aiding and abetting. You must have

14 someone who committed genocide by the act element with the specific

15 intent. That's the requirement. The complicity is not necessary to have

16 the specific intent and the specific -- the case law, Krnojelac and

17 others that deal with aiding and abetting, in my respectful submission,

18 for specific intent crimes would be the same, which is knowledge.

19 I don't know if that provides any assistance, but that's the

20 general position of the Prosecution.

21 JUDGE SCHOMBURG: Thank you for this.

22 Just for the purpose of clarification, because, as you no doubt

23 know, in Akayesu they found a solution just the other way around.

24 MR. FARRELL: That's correct.

25 JUDGE SCHOMBURG: I want to refrain from any comments relating to

1 this.

2 However, your submission comes down to the point saying that

3 complicity in genocide is more or less lex specialis to aiding and

4 abetting in genocide because you need the same mens rea and all the other

5 elements we know from other cases.

6 MR. FARRELL: I would have to give it further thought, but I

7 think that would be the case, yes.

8 JUDGE SCHOMBURG: Maybe this is the reason why you did not plea

9 aiding and abetting in this case but complicity in genocide.

10 MR. FARRELL: There is, I think, to be frank -- there has been in

11 the past with the previous indictment some uncertainty of the

12 relationship of the three elements - genocide, complicity, and aiding and

13 abetting - which you've obviously identified. And the practice in the

14 ICTR had been to charge complicity as a crime, and that practice has

15 actually resulted in one case for a conviction for complicity, which may

16 appear problematic, as it's a mode of liability, at least in the

17 Prosecution's submission in Ntakirutimana, but there are -- there is some

18 support for pleading it as a crime.

19 As a result, if complicity, which you've already identified -- if

20 complicity has the same elements of aiding and abetting, then it just

21 simply just stands in the place of or in the shoes of aiding and

22 abetting. But in the Prosecution's submission, the difficulty actually

23 comes when you find the elements if you accept they're the same and you

24 find the elements of knowledge and the element of the acts necessary for

25 assisting, lending encouragement, and you have 7(1), aiding and abetting

1 the crime, and you have the charge of complicity of the crime. That's

2 where the difficulty comes, I think, because in the Prosecution's

3 submission, they're the same.

4 Semanza attempted to deal with that by looking at the specific

5 count and finding out which count was more specific to the findings and

6 then accepting that count and not finding on the other one. If that's --

7 if that's not too convoluted.

8 JUDGE SCHOMBURG: Thank you for your assistance.

9 JUDGE MERON: If Judge Schomburg has finished, I will call on

10 Judge Shahabuddeen, who has a question.

11 JUDGE SHAHABUDDEEN: [Microphone not activated] .

12 THE INTERPRETER: Microphone, please, Your Honour.

13 JUDGE SHAHABUDDEEN: Mr. Farrell, I just want to make sure that I

14 have the same appreciation of the legal character of the case you're

15 putting forward as you do. Now, it is written that an accused person has

16 to be personally, criminally culpable. That is a basis of criminal

17 responsibility. But that does not conflict with a certain duality in

18 approach. I would classify this as a direct and indirect approach. You

19 may have a direct approach, in which the Prosecution sets out to prove

20 that the accused has individually intended a certain result and that he

21 individually participated in the actus reus leading to that result. I

22 have in mind this is one branch of your case, much stressed by your

23 learned colleague.

24 I have in mind that there is another branch of your case which is

25 connected with the concept of joint criminal enterprise, to which you and

1 Mr. Sepenuk referred. This is what I would call -- do forgive me. I am

2 coining my own language here -- the indirect mode. I have the impression

3 that one part of your case is saying that there was a common-purpose

4 enterprise, that the accused was a party to this common-purpose

5 enterprise. And pursuant to this common purpose, a certain criminal

6 result ensued. Therefore, he is liable without more -- "without more," I

7 mean this: You don't have to prove that individually he had any

8 particular intent or that individually he participated in the actus reus.

9 All you have to prove is that there was a common-purpose enterprise, he

10 was a party to this common purpose, and that a certain criminal result

11 ensued. Is -- does the second part of that analysis apply to your case,

12 or does it not? Have I misunderstood?

13 MR. FARRELL: No, not at all, Your Honour. Maybe I won't say it

14 in the best of words, as I probably don't know the case as well as my

15 colleague. But the acts - and I'm sure you're fully aware of this, Your

16 Honour - but the acts that are done individually in this case, there are

17 some acts that are done individually. The specific provision of men to

18 assist in executions, of course, would be in and of itself a act under

19 7(1) and could be a form of liability. But the -- and then, of course,

20 as you're fully aware, the -- this is the Prosecution's submission that

21 the acts in total are acts of someone who is involved in and facilitating

22 a joint criminal enterprise. All of them, his individual acts, are his

23 role he plays and the contribution he makes. So I'm not exactly sure

24 that I'm characterising correctly, but I would say that it's not simply

25 that he -- he's got two roles. He does play a role; he plays a role that

1 is a -- provides, and is of course indispensable, but for joint criminal

2 enterprise he participates and provides substantial contribution. And he

3 shares the purpose in this case, and was required to by the -- by the law

4 under the JCE. So I -- I think it would be more accurate though - maybe

5 the facts don't reflect it as well as the theory would - but that his

6 acts, his individual acts, as the commander of the Drina Corps, those --

7 those acts constitute the role that he plays in the joint criminal

8 enterprise and that those acts are his substantial contribution, because

9 within the enterprise he has a role to play and so do others, and there's

10 certain tasks are assigned to them in that sense in that they have

11 certain functions, and without them the criminal enterprise would like

12 differently. I guess in a simplistic way.

13 JUDGE SHAHABUDDEEN: Well, thank you. May I give you a case --

14 MR. FARRELL: Please.

15 JUDGE SHAHABUDDEEN: -- which you can look up. I was look at it

16 last night, and your colleague across the way might look at it also.

17 It's the case of McKinnon against Her Majesty's advocate, a Scottish

18 case, 2003 -- 2003 SLT, decided on the 13th of February this year by a

19 five-member Bench of the High Court of Justiciary in Scotland. It seemed

20 to say that where you are relying on common purpose then it is only

21 necessary to prove that the accused was a party to the common enterprise

22 and that a certain criminal result followed without any necessity to

23 prove that he himself had individually any criminal intent or that he

24 himself had individually participated in the actus reus. It's an

25 interesting case. Both sides might like to look at it.

1 MR. FARRELL: Thank you, Your Honour. I look forward to it.

2 JUDGE MERON: Thank you. I -- I have a follow-up question to

3 questions asked by my distinguished colleague Judge Schomburg. His

4 questions and your answers helped throw some light on the question of

5 standard of knowledge or mens rea required for aiding and abetting the

6 crime of genocide and complicity in the crime of genocide. My question

7 would touch on the additional prong: How would you define the standard

8 of knowledge which would be required for 7(3) responsibility, namely

9 command responsibility, in the case of genocide? We do know that command

10 responsibility requires a standard -- normally a standard of knowledge

11 which does not rise to special intent. We know the special problems of

12 special intent in the context of genocide.

13 MR. FARRELL: The -- I haven't given it much thought, to be

14 honest, Mr. President, but I think that the standard would remain the

15 should have known standard and the reason is not because -- his acts are

16 acts of failing to take steps or failing to punish. He's not being --

17 he's not being convicted for his direct commission but for failing to

18 fulfil his obligations under international humanitarian law. It would

19 seem a little bit incongruous that a commander whose subordinates are

20 causing less serious crimes should have an obligation to prevent them

21 once he finds out. But a commander whose subordinates are committing

22 genocide should have no obligation to prevent them if he doesn't share

23 the intent or at least, he has no obligation to prevent them in the sense

24 that he won't be criminally liable as a result before an international

25 Tribunal. That to me would be, well, illogical. But I'm sorry, that's

1 as far as I can assist you, Mr. President.

2 JUDGE MERON: Thank you.

3 If there are no other questions from the Bench, we will now turn

4 to the reply by the Defence, which has 30 minutes for it.

5 Mr. Sepenuk.

6 MR. SEPENUK: Thank you, Your Honour. My colleague,

7 Mr. Petrusic, will speak first, and with Your Honours' permission, I will

8 speak second.

9 JUDGE MERON: Mr. Petrusic, I give you the floor.

10 MR. PETRUSIC: [Interpretation] Your Honours, in view of the time,

11 as we are approaching the end of the working day - and I assume that our

12 interpreters are already tired - I shall comment very briefly on some of

13 the parts of the submissions made by the Prosecution. Namely, the

14 Prosecution would wish to establish a link between the then-president,

15 Karadzic, General Mladic, and the appointment of General Krstic to the

16 position of corps commander. All are relying on the testimony of

17 Mr. Deronjic. There is no dispute that Mr. Deronjic in his testimony

18 said that he made a request to President Karadzic that the until-then

19 commander, General Zivanovic, should be replaced. And this happened

20 sometime in May 1995. However, it is a fact that Mr. Deronjic in his

21 testimony never said that he had personally suggested to President

22 Karadzic that the replacement should be General Krstic. So it would be

23 wrong to infer, as the Prosecution does, that General Krstic was in a

24 sense Karadzic's man or a man that the then-president, Karadzic, had

25 confidence in.

1 Furthermore, there was reference to intercepts and the role of

2 Lieutenant Colonel Popovic. But in the trial itself and in the critical

3 period when the crimes were being committed, there is not a single piece

4 of evidence or intercept that proves a direct communication between

5 General Krstic and Lieutenant Colonel Popovic. For the sake of truth, it

6 should be noted that on two occasions, in the notebooks of the operators

7 who were intercepting these conversations, there is an indication that a

8 message was left to the effect that Popovic had asked for the General.

9 In one place it says "General Krstic," but we also don't have the return

10 evidence that the link between them was established or that that message

11 was passed on to General Krstic.

12 My learned friend from the Prosecution says that as a member of

13 the joint criminal enterprise and engaging in the organisation of the

14 bussing and the buses that were taking the Muslims towards Tisca, that

15 those unloaded, 28 of them, were later executed. I wish to remind this

16 Honourable Chamber that it was this location, the Tisca location, that

17 General Krstic issued orders to his subordinate units of the 12th of July

18 at 13.05 as to how they should treat civilians who were passing through

19 going to Muslim-controlled territory. Obviously somebody did not respect

20 his order.

21 Finally, when the Prosecution was talking about -- about the role

22 of Vinko Pandurevic and his return to the zone of the Zvornik Brigade, to

23 the location where massive crimes were committed, Dragan Obrenovic in his

24 testimony says the following:

25 "I assumed that he - Major Jevdjevic - could link me with General

1 Krstic, and that is what I did. I spoke briefly first to Jevdjevic and

2 asked him that I would like to get in touch with General Krstic. And of

3 course the line was not even interrupted. Shortly after that, I reached

4 General Krstic on the line. I told him briefly that the situation was

5 critical, that Zvornik would simply fall, and that more than half of

6 Zvornik would be destroyed. He asked me why I was so scared. He

7 obviously did not understand and did not comprehend what was going on."

8 Your Honours, that would end my submissions. Thank you.

9 JUDGE MERON: Thank you very much. I will now turn to

10 Mr. Sepenuk.

11 MR. SEPENUK: Thank you, Mr. President. May it please the Judges

12 of this Honourable Chamber. I have just a few points to make.

13 I -- first of all, I think I gave too glib and facile an answer,

14 Judge Meron, to your question before about what if all the women had been

15 killed. And the reason that occurred to me is Mr. Farrell's comment

16 about how there seems to be an apparent inconsistency with what I said,

17 based on what Mr. Schabas said in part about killing the women and the b

18 boys vis-a-vis killing the men. And I thought your question was more

19 the part of a part again. It just occurred to me that, you know, the

20 women constitute a part of a part, and for the same reason that we

21 advance with respect to the men, i.e. a lack of substantial and no

22 interpret to kill the Bosnian Muslim group as such, I said it would make

23 no difference.

24 But under another thesis, i.e., that the Bosnian Muslim group of

25 Srebrenica is what we're talking about, certainly it could make and would

1 make a difference. Because when the -- when the women were displaced,

2 all of the women with the elderly men and the younger men, there

3 certainly was still an opportunity, despite the low birthrate, as the

4 Prosecution mentioned -- there's still the opportunity for that group --

5 for that group of Bosnian Muslims to survive. If the women were killed,

6 that would not be the case. Certainly, eventually, biologically the

7 group would die out. Now, that's aside from questions about whether you

8 could consider other people coming in and that kind of thing. But we

9 don't have that situation. I'm very pleased we don't have that

10 situation. I hope we never have that situation. But I wanted to clarify

11 that, Your Honour.

12 The second thing is Branjevo Farm. One of the privileges I've

13 had in this case is working against a very highly professional

14 Prosecutor's Office, and the one disappointment I have -- and I do not

15 mean this personally -- but the one disappointment I have is the

16 Prosecution's position on the Branjevo Farm executions. To the Defence,

17 it's crystal clear that the Prosecution has come nowhere near proving

18 beyond a reasonable doubt that General Krstic ordered these executions,

19 ordered men from the Bratunac Brigade to assist in Branjevo Farm and/or

20 Pilica Dom executions.

21 And by the way, I think the briefs -- our briefs are pretty clear

22 on this. And obviously, Your Honours, anything I don't say now or

23 anything I haven't said, please, we submit our briefs. We rely on what's

24 in our briefs. The briefs alone, I think, made our point. But now with

25 the additional testimony of -- of Obrenovic and the addition until

1 testimony of Butler, I would say -- and again, I hate to be absolutist

2 about anything in this morass of the law, but my goodness, there's a

3 total failure of proof on that point by the Prosecution.

4 What they've done is they've taken this language, "I'll see what

5 I can do" and rather than interpret it in the light most favourable to

6 General Krstic, rather than interpret it in the light of the principle of

7 in dubio pro re, they say, "No, no, this is the opening salvo." They've

8 parlayed that into the beginning of a -- almost a plan by General Krstic,

9 certainly a course of conduct, to send men, men from the Bratunac

10 Brigade, to -- to assist in the executions. And all they have on this --

11 all this have is this equivocal comment "I'll see what I can do." So us

12 he's simply using an American expression trying to get Colonel Beara off

13 his back: "I'll see what I can do. I'll see what I can do. I'll see

14 what I can do." The fact is he did nothing. The only evidence they have

15 is they have these five men in VRS uniforms. But the fact is, as

16 Erdemovic testified, and Mr. Butler testified, and we've set forth in our

17 brief, one of these men was from the Panteri unit of the Eastern Bosnia

18 Corps, not from the Drina Corps at all. And again, the men who arrived

19 from the Bratunac Brigade - it's now absolutely clear - arrived late but

20 they arrive late to assist in the battle, not to assist in executions.

21 The government -- Prosecution should confess error on that point,

22 just like we conceded forcible transfer. Just like we conceded forcible

23 transfer, they should confess error on this point, because they have no

24 case on the Branjevo Farm executions.

25 The -- on behalf of -- I know I speak on behalf of Mr. Petrusic

1 when I say that it has been a privilege for us to appear before this

2 Court on such an important case. And the only thing that's truly crucial

3 here is to get it right. We came very close to not getting it right when

4 we filed our initial briefs. Again, there were time constraints, time

5 limitations, and it's only as the months have gone on and that

6 Mr. Petrusic and I, trying to immerse ourselves in this situation - and

7 by the way, Your Honours don't need me to tell you that, you know, one of

8 the Prosecutors here was a trial Prosecutor. Mr. Harmon, Mr. Cayley,

9 Mr. McCloskey, a very formidable and experienced team, and any set of

10 Defence lawyers could come in - in this case, it happened to be two

11 Serbian Defence lawyers, Mr. Petrusic, Mr. Tomislav Visnjic, good lawyers

12 and fine gentlemen. But talk about equality of arms. There is a

13 catching-up process, and I take my hat off to Mr. Farrell. Mr. Farrell's

14 knowledge is certain aspects of the law is encyclopaedic. And I couldn't

15 even begin -- I mean that sincerely, Your Honour. And I couldn't even

16 begin to try to match him on that kind of thing. But the important thing

17 is to get it right, and thank goodness we finally saw the whole

18 Commission of Experts point.

19 And what I wanted to say is one of the reasons it's been a

20 privilege to appear before this Tribunal is that I don't know we could

21 have done this, certainly, I only know an American courtroom. This is my

22 first experience here. In an American court you submit briefs ask then

23 you have an half hour aside for an oral argument -- in a Supreme Court I

24 believe it's an hour. And sometimes the Prosecution or Defence will get

25 a minute or two of words out and then there's this immediate, I'll call

1 it, confrontation by the Court. So what a pleasure it has been - and we

2 thank you so much to allow us -- to have allowed us to make our full

3 argument in this case, because it's very important in this case - your

4 Honours don't need me to tell you this - not only for General Krstic but

5 for the victims at Srebrenica, for world history, to get it right in this

6 case. Thank you.

7 JUDGE MERON: Thank you very much.

8 Before turning to the last item on our agenda, an important item,

9 a personal address by General Krstic, let me tell you on behalf of the

10 entire Bench that we are here to do justice and that both the Prosecution

11 and the Defence have greatly assisted the Bench in their very

12 professional arguments. This is a very difficult case. This is a case

13 of historic importance, and it is therefore so important that we have had

14 very professional assistance from both sides, the Defence and the

15 Prosecution.

16 And now, the last item on our agenda is: Should General --

17 General Krstic, would you rise.

18 If you -- should you wish so, would you like to address the Court

19 briefly, General?

20 THE APPELLANT: [Interpretation] Yes, Your Honour.

21 JUDGE MERON: Please do.

22 THE APPELLANT: [Interpretation] Thank you.

23 Your Honours, I am addressing you not availing myself of the

24 right that I am accorded to but the respect you have shown me by the very

25 fact of giving me the floor.

1 My Defence team has presented a great many things thus far and

2 has done its best for me, and that is why I am not going to speak of any

3 facts or address any legal issues. Srebrenica --

4 JUDGE MERON: I think so you might be going a bit too fast for

5 the interpreters. Just a little bit slower, General.

6 THE APPELLANT: [Interpretation] Srebrenica, in July 1995, to all

7 the participants in it, brought evil. To the Muslims of that Eastern

8 Bosnian small town, the victims, they had pain and suffering; and to the

9 Serbs it brought great shame because somebody dared to blemish the lofty

10 traditions of Serb officers dating back to the start of the twentieth

11 century and even before that. They were trampled upon. And this

12 illustrious tradition affected me personally. It is why I chose to

13 become an officer in the first place.

14 The Serbs, unfortunately, throughout their past but not through

15 any will of their own had to wage many wars, and I'm only going to

16 mention those dating back to the beginning of the twentieth century and

17 also the middle of the twentieth century -- 1912, 1913, 1914, and 1941 --

18 but never - and when I say "never," I mean truly never - did they commit

19 any evil crimes. Their traditions of warfare are illustrious, right up

20 until that July of 1995, and even then right until the entry of the Serb

21 forces in Srebrenica that was true.

22 I who myself led the operation, as well as my subordinates, up

23 until then never violated any of the rules of war nor the provisions and

24 laws of the Geneva Conventions. And then instead of going to military

25 victory, because the 28th Division was a legitimate military target, we

1 had this terrible shame fall upon us because the intelligent and wise

2 kept silent and the others spoke up.

3 Someone said that "When you have a war, it is always the wise who

4 remain silent and the fools who speak out, and they shout it out." They

5 were loud and clear. Ask we had to keep silent. Never before or after

6 that did I or my subordinate commanders hear their speech, but we learnt

7 about what they did. We learnt of their evil acts, which we were not

8 able to put right.

9 Your Honours, God will punish me if I have done wrong. You will

10 make your ruling and decision in conformity with the law and in keeping

11 with your consciences. But I would like to prevail upon you and tell you

12 that on that day, the 12th of July, 1995, in the early afternoon hours,

13 with my army, with my men, I had left the area and went in quite another

14 direction to quite another front. Those others spoke the language of

15 evil then, and neither I myself or my subordinates ever joined them.

16 Your Honours, I cannot but -- remain silent and not tell you

17 this: I would like to say that I deeply regret all the victims and I

18 share the pain and suffering that their families have had to experience,

19 and my condolences do not date just from this day but they were always

20 present with me from the very first moment that I learnt of what had

21 happened.

22 Thank you, Your Honours.

23 JUDGE MERON: Thank you, General Krstic. You may sit down.

24 THE APPELLANT: [Interpretation] Thank you.

25 JUDGE MERON: Our hearings of this appeal have now come to an

1 end, and I thank you again and we will now rise.

2 --- Whereupon the hearing adjourned at 5.14 p.m.

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