1 Monday, 20 November 2000

2 [Prosecution Closing Argument]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.32 a.m.

6 JUDGE MUMBA: Would the registrar please call the case.

7 THE REGISTRAR: [Interpretation] IT-96-23-T, IT-96-23/1-T, the

8 Prosecutor versus Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic.

9 JUDGE MUMBA: Good morning. I take it the parties appear as

10 before. I see, Mr. Ryneveld, your team is as before. Thank you. And the

11 Defence.

12 This morning we are proceeding without Judge Pocar. He's away due

13 to urgent personal reasons, so we shall proceed under Rule 15 bis.

14 These proceedings are for closing arguments by both parties. We

15 begin with the Prosecution.

16 MS. UERTZ-RETZLAFF: Thank you, Your Honours.

17 Your Honours, on 20th March this year, when this trial commenced,

18 my colleague Mr. Ryneveld told you that the case against the accused

19 Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic is not a rape case like

20 those in national jurisdictions. This trial dealt with crimes that were

21 part of a policy of ethnic cleansing, a policy which caused the female and

22 the male non-Serb civilians to suffer throughout the municipalities of

23 Foca, Gacko and Kalinovik.

24 Eight months after this opening statement, we have heard evidence

25 of 31 Prosecution witnesses, among them 16 rape victims. Twenty-four

1 Defence witnesses testified, one of them the accused Kunarac. In

2 addition, three military experts and six medical and psychological experts

3 gave their testimony.

4 My colleagues Mr. Ryneveld, Ms. Kuo, and I will now present to you

5 the facts the Prosecution submits to have been proven by this evidence.

6 Furthermore, we will present how the Prosecution applies the law to these

7 facts, and finally, which legal sanctions should follow the conduct of the

8 accused.

9 We do not intend to simply restate the contents of the Prosecution

10 Final Trial Brief. There is no need and there is no time to go into the

11 details of all this evidence heard and seen. We, instead, will outline

12 the framework of the Prosecution case and highlight some of the contested

13 matters and the material evidence that leave no doubt that the accused

14 Kunarac, Kovac, and Vukovic are guilty as charged in the indictments.

15 THE REGISTRAR: [Interpretation] Excuse me, Madam Prosecutor.

16 Could you please slow down considerably so that we would have the exact

17 version translated into French and B/C/S, please.

18 MS. UERTZ-RETZLAFF: Yes.

19 Everyone agrees that there was an armed conflict in Bosnia and

20 Herzegovina at that time. In this trial, we do not have to answer the

21 questions who started the war, who is responsible. The historians will

22 have to answer these questions, not the Judges.

23 The Defence contests that the offences were linked to this armed

24 conflict and were part of a widespread or systematic attack on the

25 non-Serb civilian population. Allow me, therefore, to speak about the

1 context of the crimes.

2 Prior to April 1992, the town of Foca was an ethnically mixed

3 community located on the banks of the Drina River in south-eastern

4 Bosnia-Herzegovina. The about 40.000 inhabitants of Foca municipality

5 were predominantly Muslim.

6 Both Prosecution and Defence witnesses' testimony established that

7 the political and military takeover of the municipality of Foca by the

8 Serb forces started on 8 April 1992 and was complete by the 16 or 17 April

9 1992. Both Prosecution and Defence witnesses described that as soon as

10 the Serb forces had taken over parts of the city, soldiers started

11 arresting non-Serb inhabitants. Several witnesses described how they,

12 together with hundreds of other Muslim civilians, were arrested, starting

13 as early as 14 April 1992, and subsequently were detained in camps Livade,

14 KP Dom, Foca High School and Partizan Sports Hall under inhuman living

15 conditions for various prolonged periods lasting until more than two and a

16 half years.

17 Until mid-July 1992, the Serb forces continued to round up and

18 arrest non-Serb civilians from the surrounding villages and the

19 municipality. As a pattern, the Serb forces first requested the villagers

20 to turn over their weapons, and after compliance, attacked the undefended

21 villages. These attacks on undefended villages were linked to but were

22 not an integral part of the armed conflict in the area. At the time when

23 the attacks occurred, the municipality of Foca and the particular villages

24 under attack were already under Serb control. There was no reason to

25 attack them.

1 During the first few months after the outbreak of the war, Muslim

2 houses and sacred sites were deliberately destroyed. The Muslim houses in

3 Donje Polje settlement and all 11 mosques in Foca were deliberately burned

4 down after the fighting had ceased, occasionally in the presence of

5 vehicles of the fire brigade. The presence of the fire brigade on the

6 scenes of arsons underlines that what happened to the mosques in the

7 Muslim neighbourhoods were not isolated acts of vandalism, but they were

8 part of a policy of ethnic cleansing.

9 Although the Serb authorities in Foca by the end of April,

10 beginning May 1992, declared publicly that life was back to normal,

11 Muslims could not return to their jobs. Movement of Muslim population,

12 especially the male population, was restricted. Female Muslims had to

13 disguise themselves with black clothes to appear like Serbs.

14 The Muslims in Foca lived in constant fear, especially after it

15 became known that Muslim civilians were deliberately murdered. Even the

16 Defence witnesses testified that Muslims needed help and protection from

17 their Serb friends.

18 The police did not protect the Muslim population. On the

19 contrary, they condoned the assaults on the Muslims. When in July 1992

20 Witness 183 was taken out from her flat near the police station by the

21 accused Kunarac for the purpose of rape and robbery, and when she managed

22 to flee and run to the police station for help, she was not only refused

23 help but was hit by the guard, by the police guard, with a rifle.

24 Because the living conditions were deteriorating and increasingly

25 unsafe and frightening, Muslims had to flee Foca. The witnesses made

1 clear that they did not leave voluntarily. What made them leave was

2 expulsion through terror. Those who did not flee were finally expelled to

3 Gorazde or to Montenegro.

4 The attack on the non-Serb population of Foca was not an isolated

5 incident. Similar attacks occurred at the same time in other parts of

6 Bosnia and Herzegovina. The city and municipality of Gacko with its

7 roughly 11.000 inhabitants are located south of Kalinovik. From about

8 mid-April 1992, Serb forces were in control of Gacko municipality. The

9 takeover initiated a series of similar events as described in relation to

10 Foca. Many inhabitants of Gacko therefore fled the town and the

11 villages. Those who stayed behind were finally expelled to Macedonia.

12 More than 1.000 Muslim civilians, mostly women and children,

13 started to move on foot in the direction of Konjic in Central Bosnia and

14 Herzegovina. On 4th April 1992, approximately 250 of them were captured

15 before crossing into Konjic municipality. The captured Muslims, among

16 them several of the witnesses, were detained in Kalinovik Primary School

17 until the 1st September 1992 when they were exchanged for bodies of killed

18 Serb soldiers.

19 The Kalinovik municipality with its about 4.600 inhabitants

20 borders the Foca municipality. On 1st August 1992, Serb soldiers expelled

21 Muslim women and children from their homes and subsequently detained them

22 at the Kalinovik Primary School where they joined the women and children

23 from Gacko. Kalinovik Primary School was not a refugee centre, as the

24 Defence argues. For the Muslims from Gacko and Kalinovik, it was a place

25 of detention. The living conditions were brutal and characterised by

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1 abuse.

2 Especially after end of July, beginning August, 1992, when Trnovo

3 fell to the forces of Bosnia and Herzegovina, and when the Serbs suffered

4 losses on the Rogoj Pass, Serb soldiers, including the accused Kunarac,

5 took revenge on the Muslim women -- detainees. The Serb soldiers came

6 regularly to the school to take women out for the purpose of rape.

7 Let me now tell you why this happened. This attack on the

8 non-Serb population of Foca, Kalinovik, and Gacko, was part of an

9 organised and planned campaign and policy of the Bosnian Serb leadership

10 to ethnically cleanse the aforementioned municipalities.

11 This policy and its aim became apparent as early as 1990. In

12 September 1990 during a rally of the Serbian Democratic Party, the SDS, in

13 Foca, Serb politicians threatened that the River Drina would flow bloody

14 again, referring to murders of Muslims by Chetniks during the Second World

15 War, and they also said that Muslims and Serbs could not live together.

16 During a speech of Vojislav Maksimovic, another leading SDS

17 politician on the republic level, it was declared that the Muslims were

18 the greatest enemies of the Serbs, and in doing so, he prepared the

19 terrain among the Serbs for attacking the Muslims. Finally, Radovan

20 Karadzic, the top SDS leader, openly threatened that, in case of conflict,

21 one of the nations would be wiped out, and it would be the Muslims.

22 It is the position of the Prosecution that this evidence proves

23 that the sexual assaults charged in the present case were part of a

24 campaign of ethnic cleansing against, most of all, the Muslim population

25 in the municipalities of Foca, Kalinovik, and Gacko, designed by the Serb

1 leadership to achieve an ethnically pure Serb environment, and this

2 ultimate aim was actually achieved. The ethnically mixed municipalities

3 of Foca, Kalinovik, and Gacko have ceased to exist.

4 Indeed, so thorough was this ethnic cleansing in Foca itself that

5 the town was renamed Srbinje, Serbian town, and the Muslim culture in Foca

6 was wiped out without a trace. Where the Aladza Mosque, a famous symbol

7 of Muslim culture in Bosnia and Herzegovina, stood before the war is now

8 an empty space.

9 Having described the context in which the crimes occurred, let me

10 now turn to the sexual assault as such, to the victims, and to the

11 perpetrators.

12 First, the accused. All three accused are Bosnian Serbs born in

13 Foca. The accused Dragoljub Kunarac, better known as Zaga, was 32 years

14 during the events. Immediately prior to the war, he lived in Montenegro.

15 He returned to Foca in June 1992 to join the Bosnian Serb forces. He was

16 involved in the fighting in the Foca area as the commander of the

17 Independent Zaga Detachment, a mine clearing and reconnaissance unit. My

18 colleague Mr. Ryneveld will go into the details of the accused's position

19 in his part of the closing argument.

20 The second accused, Radomir Kovac, also known as Klanfa, was 31

21 years of age during the events and lived in Foca. He was a soldier of the

22 1st Independent Dragan Nikolic Detachment. This accused was involved in

23 the attack on Foca and the villages as early as 17th April 1992, and

24 remained in this unit throughout the time relevant to the indictment.

25 The third accused, Zoran Vukovic, was also a permanent resident of

1 Foca. He was 37 years during the events. He was also a member of the 1st

2 Independent Dragan Nikolic Detachment throughout the time relevant to the

3 indictments.

4 And now to the victims. On the 3rd of July, the village of

5 Mjesaja in the village of Foca was attacked by soldiers, including the

6 members of the 1st Independent Dragan Nikolic Detachment, among them the

7 accused Radomir Kovac. One group of about 50 Muslim villagers, among them

8 several witnesses, were captured that same day. Witnesses 75 and DB were

9 beaten and kicked by soldiers. Seven captured men, among them brothers,

10 fathers, sons, and husbands of the witnesses were severely beaten,

11 separated from the women, and killed on the spot.

12 The Serb soldiers altogether captured about 57 Muslim villagers

13 that day, among them an elderly man, and took them to Buk Bijela. Buk

14 Bijela is a settlement below Mjesaja by the banks of the Drina River. Buk

15 Bijela served as a VRS military post at that time. While the elderly man

16 was killed at Buk Bijela after his interrogation, the women and children

17 were kept there for several hours.

18 At Buk Bijela, several additional soldiers of the 1st Independent

19 Dragan Nikolic Detachment were present, among them the accused Zoran

20 Vukovic. This accused was involved in the interrogation of the captured

21 villagers. During the interrogation, the villagers were cursed and

22 humiliated.

23 Several women and girls were actually raped or gang-raped.

24 Witness 75, 24 years of age at that time, was gang-raped by more than ten

25 soldiers. Witness 87, 15 years of age at that time, was raped by

1 altogether five soldiers. A further witness, Witness 48, was raped as

2 well. After these incidents, the villagers were transported to the Foca

3 High School, where they were subsequently detained.

4 Another group of 17 Muslim villagers, among them again several

5 witnesses, managed to hide first and surrendered on the 4th of July.

6 While two captured male villagers were taken to KP Dom and disappeared

7 from there, the women and children were taken to Buk Bijela. While at Buk

8 Bijela, they were interrogated, humiliated and one of them was raped.

9 The accused Zoran Vukovic separated Witness 50, 16 years of age at

10 that time, from her mother. Under the pretext that she was to be

11 questioned, he took the witness to a hut and raped her there. He raped

12 her orally. During the rape, the accused displayed his pistol to the

13 witness and threatened her. Witness 50 feared for her life, and the

14 accused was aware of the witness' fear. During the rape, he asked the

15 witness what she was afraid of, if she knew what sex was, if she had had

16 sex before, and that they should enjoy it.

17 This sexual assault of the accused Zoran Vukovic on Witness 50 is

18 not included in the charges. This witness revealed the incident only

19 during trial. She did not tell anybody before the details of this

20 incident and she did not reveal it to the Prosecutor's Office staff.

21 The witness testified to her reasons for this late disclosure.

22 She said, "Those words would not come out of my mouth." Asked why she

23 finally, during trial, decided to reveal this incident, she said, "First

24 of all, because of the oath I took today that I would speak the truth and

25 nothing but the truth."

1 Let me now turn to Foca High School. Between the 3rd of July and

2 mid-July 1992 --

3 JUDGE HUNT: Just a moment, would you. What do you want us to do

4 with that particular incident which is no part of the indictment? It

5 would be, I suppose, because it's in evidence, part of the evidence of the

6 attack upon the civilian population, but we cannot do anything else with

7 it if you have not made it part of the indictment.

8 MS. UERTZ-RETZLAFF: Your Honours, we will -- we find it important

9 because it's part of the general elements of the crimes, another sexual

10 assault that happened at that time period. And at the same time, we think

11 we can use it during sentencing, and my colleague Mr. Ryneveld will talk

12 about it.

13 JUDGE HUNT: That was raised during the opening address and

14 withdrawn, as I recall. I don't know if it was in relation to this

15 particular incident, but the suggestion that we can take into account on

16 sentencing matters for which there will be no conviction I thought had

17 been withdrawn.

18 MS. UERTZ-RETZLAFF: Your Honour, we do not mean to include it as

19 another rape that this accused committed, but we want to include it

20 showing his behaviour, his hostile behaviour towards Muslim women as

21 such. It's only the surrounding, his behaviour as such, not that he

22 committed a rape.

23 JUDGE HUNT: We'll deal with that later, but may I take it from

24 what you've said that you rely on this particular rape, if it is

25 established, as going towards the attack upon the civilian population?

1 MS. UERTZ-RETZLAFF: Yes, Your Honour.

2 JUDGE HUNT: Thank you.

3 MS. UERTZ-RETZLAFF: Also, the reason why I point it out here

4 particularly, it's important for the identification of the accused Zoran

5 Vukovic, which is a part of the closing argument that Ms. Kuo will lead.

6 JUDGE HUNT: Thank you.

7 JUDGE MUMBA: Is it also your point, Madam Prosecutor, that even

8 though it was not specifically charged, the fact that the evidence was

9 laid, the accused had the opportunity to cross-examine?

10 MS. UERTZ-RETZLAFF: Yes, he had. We considered to amend the

11 indictment, but we, at the end, decided otherwise. But the reason why I

12 point it out today are the reasons that I just gave.

13 Between 3rd July and mid-July 1992, about 70 Muslim inhabitants of

14 Foca municipality were detained in two classrooms of the Foca High School,

15 among them the women and the children from Mjesaja.

16 The Foca High School was not a collection or refugee centre for

17 the Muslims, as the Defence for the accused argued in this case. The

18 Prosecution submits that the Muslim civilians were kept there under

19 detention. They were surrounded by armed Serb soldiers. In addition,

20 they were guarded by police guards. Although the detainees were not

21 locked in, they were not allowed to leave and they could not leave.

22 Witness 95 testified that because all villagers had been detained in

23 family groups, it would have been impossible for anybody to escape

24 unseen. Witness 51 testified that, given the fact that the villagers were

25 robbed of their money, they had no means for escape.

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1 The living conditions in Foca High School were inadequate. The

2 detention was characterised by physical and psychological abuse, including

3 sexual assaults.

4 The sexual assaults that had commenced in Buk Bijela continued.

5 From the second day of their detention, almost every evening, groups of

6 Serb soldiers belonging to the 1st Independent Dragan Nikolic Detachment,

7 among them the accused Zoran Vukovic, sexually assaulted the younger women

8 and girls.

9 It was usually Dragan Zelenovic who came with several other

10 soldiers. First, he would beat and kick an old man and insult him. Then

11 the man and the children would scream in fear. Dragan Zelenovic and the

12 other soldiers would point at the girls and women to follow them. In this

13 atmosphere of fear and violence, the selected girls and women did not dare

14 to resist and had no choice but to obey. Witness 95, who actually dared

15 to resist the sexual assaults on one occasion, was hit, which naturally

16 increased the fear of all the other victims. The selected victims were

17 taken either taken to other classrooms or nearby places, where they were

18 sexually assaulted by several soldiers.

19 On or about 6 July 1992, Dragan Zelenovic, accompanied by the

20 accused Zoran Vukovic and several other soldiers, burst into the

21 classroom. The soldiers selected several girls and women, among them the

22 witnesses 50, 75, 87, and 95. The soldiers led the girls and women to the

23 classroom next door.

24 On this occasion, Witness 75 was raped by Dragan Zelenovic and

25 another soldier.

1 Witness 95 was raped by DP1, who hit her twice when she refused to

2 undress. He hit the witness so hard that she sustained a permanent injury

3 in her jaw.

4 Witness 87 had to go into a corner of the classroom where the

5 accused Vukovic was already sitting. The accused told her to lie down,

6 undressed her, and raped her.

7 Witness 50 was only briefly in the same classroom with the other

8 victims. Then one of the soldiers took her yet to another classroom and

9 raped her there.

10 Let me now move on to Partizan Sports Hall. Partizan functioned

11 as a detention centre for women, children, and elderly from mid-July 1992

12 until 13 August. All the detainees earlier detained at the Foca High

13 School were transferred there.

14 The living conditions in Partizan were brutal. The detention was

15 characterised by inhumane treatment, unhygienic facilities, starvation,

16 physical and psychological torture, including sexual assaults.

17 The already-described poor living conditions at the high school

18 deteriorated further once the detainees were transferred. Witness 105

19 specified that the detainees were provoked more, women and girls were

20 taken out for rape more often, and the quantity of the food was less.

21 Partizan was not a collection or refugee centre, as the Defence

22 argues. The Prosecution submits that it was a detention centre for the

23 same reasons as the Foca High School. The detainees were guarded. They

24 could not leave the premises as they wished. Only one witness, the

25 Witness 95, with the permission of one guard, who knew her from before the

1 war and took pity, allowed her to leave to buy bread.

2 During July 1992, the Bosnian Serb authorities transported several

3 of the detainees from Partizan and some from the KP Dom to Cajnice for an

4 exchange that unfortunately failed. Because the transport went through

5 Montenegro, the detainees begged the authorities to release them in

6 Montenegro; however, they were taken back. This incident underlines that

7 the civilians kept in Partizan were detained and not accommodated like

8 refugees. The transport to Montenegro provided an opportunity for the

9 authorities in Foca to leave the civilians in Montenegro. However, that

10 was contrary to their plan to keep the detainees as exchange potential.

11 Immediately after the transfer of the girls and women to Partizan,

12 the pattern of widespread and systematic sexual assault continued. The

13 soldiers of the 1st Independent Dragan Nikolic Detachment continued to be

14 involved. In addition to them, soldiers belonging to the Independent Zaga

15 Detachment started to come for that same reason to Partizan.

16 The soldiers entered Partizan usually in the evenings but also

17 during daytime, and they removed women and girls. When the groups of

18 soldiers came, they would abuse the detainees verbally, yell and scream at

19 them, and would either point the girls and women out or call them out by

20 name. In this atmosphere of fear and violence, the selected girls and

21 women had no choice but to get up and follow. When the women resisted or

22 tried to hide, the soldiers would threaten them. Witness 105 remembered

23 that once a soldier of the Independent Zaga Detachment shot at the ceiling

24 when the women did not obey his demands immediately.

25 The soldiers took the women from Partizan to houses, apartments,

1 for the purpose of rape. The women and girls were raped until their

2 absolute exhaustion. Witness 95 testified that she was raped with fury

3 and that the soldiers were taking it out on the victims.

4 While detained in Partizan, several detainees, including the

5 witnesses 95, 51, and 48, reported the rapes to the chief of police. As a

6 consequence, the number of rapes did not decrease and the chief of police

7 did not help them at all. On the contrary, as a consequence, the chief of

8 police raped one of the complainants himself.

9 Let me now refer to some particular rapes charged in the

10 indictments. When soldiers came to Partizan, Witness 50 would try to

11 hide. Her mother, Witness 51, would know where she was hiding. About one

12 or two days after her arrival in Partizan, the accused Zoran Vukovic and

13 another soldier came to Partizan. First, they could not find Witness 50.

14 Then the accused threatened to kill the other detainees, especially to

15 kill the witness' mother. Witness 51 had no choice but to go to the

16 bathroom where her daughter was hiding and call her out. When she did so,

17 she was so desperate that she cried and tore her hair.

18 The accused Vukovic took Witness 50 to an apartment where he raped

19 her. After the rape, the accused sat down and lit a cigarette. He said

20 to the witness that he could have done much more to her, but that she was

21 about the same age as his daughter, and therefore he would not do anything

22 more to her.

23 Let me now turn to the Independent Zaga Detachment. This unit

24 maintained a meeting and gathering point in a house Ulica Osmana Djikica

25 No. 16, also referred to as the tailor's house. On several nights, the

1 accused Kunarac, accompanied by some of his soldiers, removed women from

2 Partizan and took them to the tailor's house for the purpose of rape.

3 After taking the women to the house, the accused would sometimes stay and

4 rape, himself. Once before the 2nd of August 1992, the accused Kunarac

5 took Witness 87, together with several other girls, to this place. On

6 this occasion, the witness was raped by Montenegrin soldiers from Niksic.

7 According to the evidence, the accused Kunarac on two occasions

8 between the 13th of July and the 11th of August 1992, took the Witness 95,

9 together with several other women, out of Partizan to the tailor's house.

10 On both occasions, he raped her.

11 In the paragraphs 6.1 and 6.2 of the Kunarac/Kovac indictment, the

12 accused Kunarac was charged with raping victim 48 in the Zelengora Hotel

13 and a house near the bus station. However, Witness 48 was taken out so

14 often from Partizan, she was raped so often, that she was not able to

15 place these particular rapes into a timely context, and she could no

16 longer be precise about which particular perpetrator took her out together

17 with which other victim to which location.

18 Therefore, the Prosecution concedes that these particular rapes

19 are not proven beyond reasonable doubt. Nevertheless, the rapes of

20 Witness 48 are part of the general elements of the crimes in this case and

21 are therefore described.

22 Let me now turn to the rapes described in paragraph 5.3 of the

23 Kunarac/Kovac indictment. One evening in mid-July 1992, the accused

24 Kunarac came to Partizan, together with his deputy Gaga and the soldier

25 Bane, and took Witness 75 and DB to the tailor's house for the first

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1 time. There, the witnesses were separated in two different rooms.

2 Witness DB was first raped by the soldiers Jure, Gaga, and a 15-

3 or 16-year-old soldier. Then Gaga took DB to the bathroom to have her

4 have a shower and told her that now his commander was supposed to come.

5 Gaga threatened that he would kill her if she did not satisfy his

6 commander. The witness, after hearing this, was very frightened.

7 Gaga then returned the witness to the same room where she had been

8 raped before. Standing in the door, Gaga again threatened the Witness DB

9 that he would kill her if she did not satisfy his commander. At that

10 exact moment, the accused Kunarac entered the room and heard what his

11 deputy had threatened.

12 After the accused Kunarac had laid down next to the witness, he

13 did not tell her what to do, and he did not do anything at all. Witness

14 DB was frightened, and she also did not know what to do. After a few

15 minutes, Gaga walked into the room and said to the commander, to the

16 accused, "Commander, are you satisfied?" Witness DB understood this to be

17 another threat. From that moment onwards, she undressed the accused

18 Kunarac and started to kiss him all over, and then the accused had sexual

19 intercourse with her.

20 During the entire rape, the accused remained passive. In order

21 not to get killed, the witness took the active part. Witness DB

22 experienced this particular rape, due to its especially humiliating

23 circumstances, as more painful than the previous rapes; and during the

24 entire rape, the accused Kunarac was aware that the witness was afraid and

25 she did not do anything voluntarily.

1 While Witness DB was together with the accused Kunarac, Witness 75

2 was gang-raped for about three hours by about 15 soldiers, all of them

3 members of the Independent Zaga Detachment. They sexually abused her in

4 all possible ways. They raped her orally, anally, and vaginally. They

5 assaulted the witness by either taking turns on her or gang-raping her

6 several at a time. While the soldier Bane raped the witness, he

7 threatened to cut one of her breasts off with a knife.

8 While together with DB, the accused Kunarac was fully aware that

9 Witness 75 would be sexually assaulted by the other soldiers. Later the

10 same night, when Bane was still raping her, the accused Kunarac entered

11 the room and saw what was happening, and ordered everyone to leave.

12 Let me now turn to the 2nd of August, 1992. The 2nd of August has

13 to be highlighted as a significant date. On this day, the Aladza Mosque

14 was destroyed, a fact that is undisputed; and although some of the

15 witnesses were uncertain with respect to precise dates, they were able to

16 relate the events to the date when the mosque was destroyed.

17 On 2 August 1992, selected members of the two groups of detainees

18 from Partizan and from Kalinovik were brought together for the first time

19 in the house Ulica Osmana Djikica No. 16, and subsequently moved around

20 and detained in other locations.

21 Let me first refer to the victims from Partizan. On the evening

22 of 2nd August 1992, while it was already dark, that means around 10.00,

23 the accused Dragoljub Kunarac and his deputy Gaga took 75, DB, 87, and 50

24 out of Partizan. These girls had, one or two days before the 2nd of

25 August, during an interview, revealed to the Serb journalist Gordana

1 Draskovic that they had been raped by Zaga and his men. This journalist,

2 an acquaintance of the accused Kunarac, had informed him. In order to

3 punish the girls for giving the interview, the accused Kunarac and Gaga

4 drove the four girls to the tailor's house for the purpose of rape.

5 After arriving at the house, the girls from Partizan met three

6 girls previously detained in Kalinovik, the Witnesses 190 and 205 and a

7 pregnant woman. They had been brought there earlier that same evening.

8 This same night and in the -- on the following morning, Witness 75 was

9 raped by DP8, by Kontic, and by Gaga. Witness DB was raped by the soldier

10 Jure that night, while 87 was raped by the accused Kunarac himself,

11 followed by two more soldiers.

12 After her arrival at the house, Witness 50 was only briefly

13 together with the other girls from Partizan. Witness 50 testified that

14 she might have laughed at one point, causing the accused Kunarac to notice

15 her. He said to the witness 50, "Come on, you, since you have such a nice

16 life, and come with me." He took her to a room and raped her there. The

17 witness testified that this rape was very forceful, and it seemed to her

18 as if the accused wanted to hurt her as much as possible.

19 That same night, one other soldier from Montenegro raped Witness

20 50. He raped her so aggressively that the witness started to bleed, and

21 during the rape, the soldier displayed his knife and threatened to draw a

22 cross on the witness's back.

23 On the 3rd of August, 1992, the accused Dragoljub Kunarac

24 transferred the Witnesses 75, 87, 190, and DB from the house Ulica Osmana

25 Djikica No. 16 to Karaman's House, and handed them over to DP3, the local

1 military commander. These witnesses, along with several other young

2 girls, were detained in this house for various time periods, up to several

3 months. While so detained, they were frequently raped and sexually

4 assaulted by the soldiers who either lived there or visited the place, and

5 one of the visitors was the accused Dragoljub Kunarac.

6 He, sometime in September 1992, visited Karaman's House, and he

7 was invited by the soldiers in charge of the house to take advantage of

8 the girls, and the accused Kunarac understood that he could pick a girl

9 and rape her, and did choose a girl. He chose Witness 87 and raped her.

10 During the rape, the accused was fully aware of the fact that Witness 87

11 and the other girls were kept in Karaman's House for the purpose of rape.

12 He noticed that especially the Witness 87 was distressed and scared and

13 particularly vulnerable. He raped her nevertheless.

14 The ordeal of the victims 75, 87, AS, and AB did not end with

15 their detention in Karaman's house but continued when they were

16 transferred to Foca once again and taken over and enslaved by the accused

17 Kovac. My colleague Ms. Kuo will refer to what happened to them in her

18 part of the closing argument.

19 Let me now turn to the women and girls from Gacko and Kalinovik.

20 In the early evening of 2nd August 1992, the accused Kunarac, together

21 with his deputy Gaga and some other soldiers of his unit, removed seven

22 young girls from the Kalinovik Primary School and transferred them to the

23 house Ulica Osmana Djikica No. 16. During the transport in a refrigerator

24 truck, one of the girls was taken out in Miljevina and ended up in

25 Karaman's House. Once the remaining six girls and young women reached the

1 tailor's house in Foca, they were divided amongst the soldiers of the

2 Independent Zaga Detachment for the purpose of rape.

3 The victims, 191, 186, and JG, stayed in the house only very

4 briefly. When the four girls from Partizan arrived in the house, they had

5 already been taken away.

6 The accused Kunarac was at the tailor's house only for parts of

7 that night. In addition, he was engaged with moving around girls from

8 Partizan and Kalinovik to different locations.

9 Witness 190 was raped by two of the accused Kunarac's soldiers

10 that night in the tailor's house. On the following day, she was taken

11 with the three girls from Partizan to Karaman's House. Witness 205 was

12 raped by several of the accused Kunarac's soldiers that same night in that

13 same place. She finally ended up in Brod where she was raped as well.

14 Let me now go to Trnovace house. During the early evening of the

15 2nd August 1992, the accused Kunarac, together with DP6, drove the

16 witnesses 186, 191, and the little girl JG from the house Ulica Osmana

17 Djikica No. 16 to the Trnovace house. The accused did not stay in the

18 Trnovace house the entire night. He left the house soon after the arrival

19 of the girls and went back to his men in the Ulica Osmana Djikica No. 16,

20 and returned only late after midnight, together with his deputy Gaga.

21 When they returned, they divided the girls among each other.

22 The accused Kunarac sexually assaulted Witness 191 this night.

23 Being aware that the witness was a virgin, he humiliated her by saying,

24 "That's nice. I'll be your first." While assaulting the witness, the

25 accused displayed a big knife on the table beside the couch. Witness 191

1 was so frightened that she was trembling.

2 The accused Kunarac tried to rape her, but because the witness's

3 body became rigid and stiff, the accused could not have a complete sexual

4 intercourse that night. The following night, the accused raped 191, and

5 in addition, humiliated her by proclaiming, "Now you are a woman."

6 From the first night on 2 August 1992 until mid-September 1992,

7 Witness 191 was kept at the house in Trnovace and constantly raped by the

8 accused Kunarac. Likewise, Witness 186 was raped by DP6 from the 2nd of

9 August onwards for the next six months.

10 JG, the 13-year-old little girl, was detained in this house for

11 only a few days, during which she was raped by Gaga. This child was so

12 distraught that she was crying all the time. Probably for this very

13 reason, the accused Kunarac and his deputy Gaga transferred her to

14 Karaman's House.

15 In addition, the victims 191 and 186 suffered other sexual

16 violence. Witness 191 was raped not only by the accused, but also by DP6

17 and another soldier. The accused Kunarac once offered a soldier that he

18 could rape 191 in exchange for a hundred marks. The accused Kunarac also

19 took 191 to the hospital bedside of DP3 and offered her to this commander

20 as a gesture of goodwill.

21 The witnesses 191 and 186 constantly lived in an atmosphere of

22 sexual terror evinced by the presence of other female Muslim girls the

23 accused brought to the house for sexual abuse.

24 During the entire detention at the house in Trnovace, Witness 191

25 and 186 felt helpless and were without any control over their situations.

1 They were initially locked inside the house but later had a key. However,

2 they were unable to run away because they were isolated in the middle of

3 Serb-controlled territory and lacked the means of escape. Witness 191 put

4 it, "We could not leave the house and the area. Where could we go? We

5 didn't know anything. We didn't even know where this Trnovace was."

6 Eventually, another soldier protected Witness 191 against being

7 raped by the accused. The Witness 186 was exchanged in November 1993.

8 The accused Kunarac is, finally, charged with the rape of Witness

9 183.

10 In mid-July, after midnight, the accused Dragoljub Kunarac,

11 together with two soldiers, came to the apartment of this witness.

12 Witness 183 did not know the accused from before; however, the accused

13 Kunarac knew the witness. He knew that the witness had been a well-off

14 saleswoman. As soon as the soldiers entered the flat, they started

15 threatening the witness. They falsely accused her of passing messages

16 over radio. They tried to blackmail her and searched and looted her

17 apartment.

18 Then the accused Kunarac took the witness to a car and drove with

19 her and the other soldiers to the banks of the Cehotina River. There, one

20 of the soldiers threatened the witness with a knife. Then the accused and

21 the other two soldiers raped the victim. The accused, who raped the

22 witness, first humiliated the trembling woman by saying that she had to

23 enjoy what he was doing. And when the witness put her hands on her eyes,

24 he told her that she had to look a Serb in his eyes while he was raping

25 her. The victim was then also raped by the other two soldiers. While

1 this happened, the accused Kunarac taunted the witness by telling her that

2 she would have a son not knowing who the father was, but most important,

3 that it would be a Serb child.

4 The Prosecutor submits that these facts are proven by witness

5 testimony. The witnesses have described what they had survived during the

6 war in Foca and what the three accused did to them. The testimonies are

7 reliable, convincing, and corroborate each other.

8 Let me now turn to the Defence case. While my colleague Ms. Kuo

9 will elaborate on the actions and the defences of the accused Kovac and

10 Vukovic, I will now discuss the accused Kunarac's alibi Defence.

11 The accused Kunarac, throughout his testimony and his previous

12 statements to the investigators, did not dispute the fact that the rape

13 victims who testified during trial had been raped. He claimed mistaken

14 identity. He concluded that someone else might have posed as Zaga.

15 The accused Kunarac, in relation to each and every count of the

16 indictment, not only claimed mistaken identity, but also raised an alibi

17 defence. Defence witnesses, including the accused, testified that the

18 accused was either on combat missions or in the command headquarters or at

19 his parents' house, and not at the places of rape. The Prosecution

20 submits that the alibi of the accused Kunarac lacks credibility and is, in

21 general, untrustworthy.

22 Let me examine the alibi defence in a bit more detail. The

23 accused Kunarac claimed that from 7 July until 21 July 1992, he, with

24 several of his soldiers, among Gaga and Kontic, were constantly present at

25 Gabelica Kosa near Cerova Ravan. He testified that, due to a road slide,

1 he got stuck there. He and the other soldiers at Gabelica Kosa would

2 carry out attacks on Cerova Ravan. The accused further claimed that only

3 on the 18th or 19th July 1992, after the arrival of a bulldozer, the road

4 was open to traffic again, but he nevertheless stayed at Gabelica Kosa,

5 helping and protecting the bulldozer driver.

6 There is no disagreement that, during the relevant time, offensive

7 activities against the Muslim forces on Cerova Ravan took place. The

8 Prosecution does not dispute that the accused and his unit took part in

9 this fighting. However, the Prosecutor submits that the accused Kunarac

10 lied when he testified that he was at this place in the said period.

11 He and his men indeed went to Foca in the evenings after military

12 activities had ceased and took out women and girls from Partizan. The

13 accused himself confirmed that the distance between Cerova Ravan and Foca

14 is only 20 kilometres. Given the flexibility of the accused and the fact

15 that the accused had cars at his disposal, he and his men had ample

16 opportunity to go back and forth to Foca in the evenings.

17 The Prosecution submits that the roadblock is pure fiction.

18 Although the accused was aware of the importance of his alibi, he

19 did not mention his presence on Cerova Ravan during the initial interview,

20 and he mentioned the roadblock only during his testimony.

21 Witness Osman Subasic, whom the accused himself called a reliable

22 witness, testified that there was no roadblock in the area. Traffic went

23 back and forth on this road throughout the fighting. There was indeed a

24 bulldozer, but it was widening the road for an artillery vehicle, and the

25 traffic could and did pass the bulldozer.

1 The accused himself testified that the road was damaged over a

2 stretch of actually seven metres. That cannot be an obstacle for a solder

3 so flexible as the accused.

4 In addition, the accused's testimony is inconsistent in regard of

5 other aspects. The accused's task was mine clearing and reconnaissance.

6 What he claimed to have done at Gabelica Kosa is neither the one nor the

7 other.

8 The accused or any other soldiers on Gabelica Kosa did also not

9 perform infantry attacks. The positions of the Muslims at Cerova Ravan

10 were out of reach of infantry weapons. The accused himself testified that

11 nothing could be done from this point before the arrival of the artillery

12 vehicle.

13 Finally, the accused suspected that the soldier Kontic may have

14 committed the rapes attributed to him. However, this soldier was together

15 with him in this particular time period at that place. Could Kontic go to

16 Foca, the accused could do so as well.

17 Defence witness Blagojevic confirmed the accused's non-stop

18 presence at Gabelica Kosa during all days and nights. Witness Blagojevic

19 claimed that had the accused left, the soldiers of his unit, the Josanica

20 Company, at Gabelica Kosa would have felt so insecure that they would have

21 abandoned their position.

22 This claim of the witness is absurd. Witness Blagojevic testified

23 that, at the relevant time, there was no fighting at Gabelica Kosa,

24 therefore there was no reason for the soldiers of the Josanica company to

25 be afraid and feel insecure. Given the absence of fighting at that

1 position, there was actually no reason for this company to be there at

2 all. There was in particular no reason for the witness to be there. The

3 witness, according to his own account, was involved with logistic matters

4 in the rear of the army and not at the front lines.

5 The accused Kunarac testified that on the 23rd of July, 1992, the

6 Muslim forces conducted an attack in the villages of Jabuka, approximately

7 25 kilometres away from Foca. The accused claimed that he and his men

8 were sent there to reconnoitre and stayed there from the morning of 23rd

9 July until late evening of 26 July.

10 The Prosecution does not dispute that the accused Kunarac and his

11 men may have operated in the area of Jabuka for a short period of time.

12 The accused Kunarac testified himself as follows: "As I said, the men who

13 went with me were practically with me that day in Jabuka." He himself

14 speaks of a day, and the Prosecution thinks that is the truth.

15 The Prosecution submits that the accused Kunarac is not to be

16 believed when he testified that he was at Jabuka for four days and

17 nights. He and his men indeed were in Foca in the evenings and took women

18 out from Partizan.

19 The accused did not mention his presence at Jabuka during his

20 first statement to the investigators. During his second interview, he

21 spoke about a day in June, referring to Jabuka. In any event, there was

22 no reason for the accused and his men to stay there for a prolonged time

23 and search for bodies. That was not their task.

24 Two Defence witnesses confirmed the accused's alibi in relation to

25 Jabuka. Witness Gordan Mastilo and Witness DJ claimed that between the

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1 23rd and the 26th July 1992, the accused was with them "every day, every

2 moment, and every night," and the accused never left their side.

3 This claim is unbelievable, given the length of this time period.

4 The Prosecutor submits that this assertion by witness Mastilo is even

5 contradicted by his own account. In fact, the witness testified that

6 during the night between the 23rd of July and the 24th of July he slept in

7 a different village than the accused.

8 Witness DJ, throughout his testimony, tried to mislead the Court.

9 His desire to give the accused a total alibi went even as far as claiming

10 that he did not sleep during the night of the 23rd to the 24th, which

11 means he gave the accused an alibi even for the times when anybody else

12 slept.

13 The accused Kunarac testified that from the morning of the 27th of

14 July until the 29th he did reconnaissance work in Dragocava. He further

15 claimed that he and his men stayed at Preljuca from the 29th to the 31st

16 of July, observing Muslim troops. He claimed that he stayed in these

17 places overnight, engaged with reconnoitring.

18 The Prosecution does not dispute that the accused Kunarac and his

19 men were in Dragocava and Preljuca. However, the Prosecution submits that

20 the accused Kunarac conducted his reconnaissance assignment only during

21 daytime and therefore had ample opportunity to return in the evenings to

22 Foca. According to the accused's own account, Dragocava is only six

23 kilometres away from Foca, and Preljuca 12.

24 The accused Kunarac testified that from the 1st [sic] July 1992

25 until the 2nd of August, he and his men were engaged in the battle of

1 Rogoj.

2 The Rogoj Pass is a location about 50 kilometres away from Foca.

3 On the 31st July, Muslim and Croat troops had gained control over the

4 pass. On the 2nd of August, according to the accused, at around noon, the

5 Serb forces launched a counterattack on Rogoj and recaptured it. The

6 accused claimed that he and his men took part in the attack and captured a

7 Muslim vehicle with an anti-aircraft gun mounted on it. He testified that

8 Gaga, Kontic, and DP7 had been with him on Rogoj Pass. He claimed that he

9 left Rogoj in the evening, in a convoy, and arrived in Foca in a captured

10 vehicle at around half past ten. The accused claimed that, after his

11 arrival in Foca, he spent the night in the Velecevo headquarters, except

12 for a brief period when the Aladza mosque was blown up.

13 The accused Kunarac does not dispute that on the evening of the

14 2nd August 1992 the seven girls were removed from Kalinovik school and

15 taken to Foca. However, he claimed that Gaga, DP7 and Kontic did it and

16 that Gaga and DP6 brought three of the girls to the house in Trnovace.

17 The accused does not dispute that the girls were sexually

18 assaulted; however, he claimed that he did not sexually assault any of

19 these girls. On the contrary, he tried to help them out.

20 The Prosecution does not dispute that the accused Kunarac and his

21 men were present in the Kalinovik-Rogoj area on the 2nd of August. On the

22 contrary, the Prosecution evidence confirms this. However, the

23 Prosecution submits that the accused did not capture a Muslim vehicle with

24 an Arabic inscription on it, as he claimed. The witnesses Nogo and Alic

25 confirmed that the Serb forces had captured an artillery vehicle, but that

1 it was a vehicle that the Muslims previously had captured from the Serbs

2 and that therefore, of course, it did not have an Arabic inscription. The

3 accused Kunarac did not mention this captured Muslim vehicle during his

4 previous interviews.

5 The Prosecution submits that the accused Kunarac did not return in

6 a convoy late at night. Instead, he, his deputy Gaga, and DP7 on the

7 evening of the 2nd of August first took out the girls and women from

8 Kalinovik and then from Partizan. Again, the accused claimed mistaken

9 identity and alibi, and argued that it would have been physically

10 impossible for him to take out the girls in the Kalinovik school and

11 Partizan. However, the three persons he identified as perpetrators in

12 Kalinovik were with him at Rogoj Pass. When he concedes that they had

13 time and opportunity to take the girls from Kalinovik and move them around

14 in Foca, this applies equally to him, to the accused himself.

15 Several Defence witnesses partly confirmed the accused's account

16 of the events on the 2nd of August; however, the Prosecution submits that

17 they should not be believed. Witness DD, a member of the security staff

18 at Velecevo command headquarters, claimed that on 2nd of August while on

19 duty at the gate, he saw the accused Kunarac arrive on the convoy and on

20 this captured truck. And he further claimed that he saw the accused on

21 several occasions later that same night until after midnight.

22 The Prosecution submits that this witness is not credible.

23 According to his own account, he could not have been at the gate from the

24 first arrival of the accused until after midnight. According to the

25 military regulations, a soldier does not stand guard for several hours in

1 a row.

2 In addition, while the accused testified that there was a small

3 plaque with Arabic inscription mounted on the truck, and he speaks about a

4 7 by 12 centimetre plaque, Witness DD testified that he saw an Arabic

5 inscription written right on the truck in big letters. The letters were

6 so big that the witness could see them from a distance of ten metres. The

7 Prosecution submits that Witness DD never saw any captured truck and never

8 saw the accused arrive in this truck.

9 Witness Radislav Djurovic, the quartermaster of the Foca Tactical

10 Group, testified that on 2nd August 1992, he was at Dobro Polje to provide

11 food and cigarettes to the soldiers of the Foca Tactical Group that had

12 gone there the previous day. He claimed that he saw the accused at 18

13 hours on the 2nd of August on the captured truck and confirmed that the

14 accused went to Foca in the convoy.

15 The witness' claim that he went to Dobro Polje to bring food and

16 cigarettes is illogical. Firstly, soldiers who go into active fighting

17 take field rations with them and do not need daily deliveries on the front

18 lines. Secondly, the soldiers would get their supplies, if needed, from

19 the Kalinovik barracks situated next to the battlefield.

20 This witness also claimed to have seen the big lettering in Arabic

21 on the captured truck. The Prosecution therefore contends that this

22 witness did not see the captured truck at all and was not at Dobro Polje.

23 The accused Kunarac admitted that he took the Witnesses 75 and DB

24 to the house in Ulica Osmana Djikica No. 16. He admitted that he had

25 sexual intercourse with the Witness DB on this occasion. However, he

1 claimed that he took the girls to the house on the morning of the 3rd of

2 August after he heard about the rape allegation from the journalist. The

3 accused claimed that it was the first time he ever heard about the

4 civilians staying in Partizan.

5 The accused claimed that he took the girls to the house Ulica

6 Osmana Djikica No. 16 in order to investigate the matter and to confront

7 them with his men. He testified that, after the confrontation which had

8 led to nothing, he discussed the matter further with the Witness DB in

9 private, during which sexual intercourse occurred against his, the

10 accused's, will.

11 The accused claimed that only later on the 11th of August he found

12 out that DB had been coerced by Gaga. The accused admitted that while he

13 was together with DB, Witness 75 was gang-raped, but he claimed that he

14 did not know that at the time, and he testified that he only heard that

15 later on the 13th of August from Gaga. The accused further claimed that

16 he took the girls later on to Miljevina to confront them with the

17 journalist and left them there only due to sudden commitments.

18 The Prosecution submits that the entire version of the accused

19 Kunarac of what happened on the 3rd of August is fabricated and

20 untruthful.

21 The accused himself testified that he had the reputation as a

22 warrior, and that he and his nickname was well-known. The idea that a

23 person raping women from Partizan would pick the accused's identity and

24 his nickname as a disguise does not make sense.

25 The accused implied that the soldier Kontic might have been the

1 perpetrator. He testified that this soldier had his height and his

2 posture. This soldier is conveniently dead, and what is most important,

3 this soldier does not have the big eyes and the bony face of the accused.

4 In addition, the claim that the perpetrator posed as Zaga is

5 absurd in the light of the fact that the witnesses told us that Zaga never

6 came alone, but that Gaga was often with him. That would mean that other

7 soldiers, especially Gaga, would have been involved in this posing, but

8 the accused himself testified that Gaga would never do that.

9 The accused's claim that he intended to investigate the rapes and

10 even planned to involve the police in the matter is disproved by his own

11 actions. He never did that, although he was very close to the police

12 building.

13 The accused's version of the rape of Witness DB is ridiculous.

14 The accused wanted the Trial Chamber to believe that he himself was a rape

15 victim, actually, because what happened was against his will. Witness DB

16 and 75 described what happened to them in the tailor's house when they

17 were first taken there, and it was not on the 3rd of August but days

18 before that, and entirely unrelated to the journalist. In contrast to the

19 accused's version, their account is logical and corroborated even by other

20 witnesses.

21 Witness DB told the Court how Gaga had threatened her at the exact

22 moment when the accused entered the room. The witness was honest and

23 careful during her testimony. She did not claim that the accused heard

24 what Gaga had threatened because she could not be sure. However, the

25 accused himself told us that he heard Gaga speak. He only lied about what

1 was said; and what was said we know from the witnesses. Witness 75 gave a

2 consistent and logical description of her gang-rape, and she testified

3 that the accused saw her being raped.

4 The accused's claim that he took the girls to Miljevina to

5 confront them with the journalist and to investigate the rape allegation

6 further is absurd. The confrontation with the journalist would by no

7 means help to establish the identity of the perpetrators. In addition, to

8 take Witness 190 from Gacko to the journalist makes no sense at all.

9 The accused admitted that he visited Karaman's house in Miljevina

10 in September 1992 and that he met Witness 87 there. The accused, after a

11 first denial, finally admitted that he was aware of the sexual assaults

12 going on in Karaman's House, and that he was invited to choose among the

13 girls, and he also admitted that he chose Witness 87. However, he claimed

14 that he did not rape her but merely talked to her in order to help her

15 out.

16 This testimony of the accused is unbelievable. The accused,

17 according to his own account, knew since the 13th of August that the girls

18 were in Miljevina. Had he had the intention to help them out, he could

19 have done so earlier. And what is more important, he never helped them

20 out. What the accused did instead to Witness 87 when he visited the house

21 we know from the witness.

22 The accused admitted that he met Witness 191 and Witness 187 in

23 the house in Trnovace and also met their mothers in the Kalinovik Primary

24 School. The accused further admitted that he was in the house for several

25 days together with the girls in the presence of Gaga, DP6, Jadranka and

1 another soldier.

2 The accused claimed that he met the girls for the first time on

3 the 9th of August. His alibi defence that he again was fighting in Rogoj

4 from the 3rd to the 7th of August is not confirmed at all. The Defence

5 witnesses who claimed to have seen him in Kalinovik between the 7th and

6 the 8th of August saw him only briefly on two occasions. A fact that

7 confirms the Prosecution's evidence that the accused went twice to the

8 school to see the mother of 191.

9 The accused denied that he raped the Witness 191. He claimed

10 that, due to the injuries he sustained during a car accident the previous

11 day, he felt so unwell that he was not fit enough to sit up or even move

12 around, let alone to rape.

13 The accused's claim that given his injuries he would physically

14 not have been able to rape the victim is disproved by the accused's own

15 account. His description of his activities on the day of the car accident

16 and afterwards, his constant moving around even on the front lines in that

17 time period -- he even rescued, according to his own account, soldiers on

18 this front line just with these injuries -- this proves that this part of

19 this testimony is yet another lie. What happened in the house in Trnovace

20 we heard from the witnesses, who gave a logical and believable account of

21 the events.

22 But let me now turn to my colleague Ms. Kuo, who will continue,

23 but given the time, my suggestion would be to have the break now.

24 JUDGE MUMBA: Yes. Although we are rising a few minutes earlier,

25 we shall resume our hearing at the normal time of 1130 hours.

1 --- Recess taken at 10.55 a.m.

2 --- On resuming at 11.31 a.m.

3 JUDGE MUMBA: Yes, Ms. Kuo. Proceed, please.

4 MS. KUO: Thank you, Your Honours.

5 I will now focus on the actions of the accused Radomir Kovac, as

6 well as the defences of the accused Kovac and the accused Zoran Vukovic,

7 and then I will turn to a description of how the Prosecution views the law

8 as it should be applied to the facts that have been proven in this case

9 beyond a reasonable doubt.

10 As my colleague has already described, Witnesses 87 and 75 were

11 taken, along with other girls, on the 3rd of August, 1992, to Karaman's

12 House. AS, who was 19 years old at the time, and AB, were also singled

13 out and taken away from their mothers in Miljevina and taken to Karaman's

14 House. AB's mother never saw her again after that day when she was taken

15 off the bus. You heard the other girls talk about AB and what happened to

16 her, how she was raped and abused. You saw her picture. Everyone said

17 she was beautiful. But after Kovac was done with her and sold her, she

18 disappeared. She was 12 years old.

19 At Karaman's House, the girls were subjected to all manner of

20 rape, abuse, and humiliation. On the 30th of October, these four girls,

21 Witnesses 87, 75, AS, and AB, were taken out of Karaman's House and

22 brought to Foca, where they were kept for one night in an apartment in

23 Ribarski, and the next day they were turned over to the accused Radomir

24 Kovac and his associate, Jagos Kostic.

25 As charged in counts 22 through 25 of the Kunarac-Kovac

1 indictment, the accused Radomir Kovac raped, enslaved, and committed

2 outrages upon the personal dignity of all four of these victims.

3 Kovac and Kostic, who were both soldiers with the Serb forces,

4 kept these girls in Kovac's apartment in Foca as their personal slaves.

5 They raped them whenever and however they wanted. Witnesses 75 described

6 how Kovac raped her and Witness 87 together at the same time in the same

7 bed. AS described how Kostic beat her when she was sick. AS

8 characterised their detention in the apartment this way: "Whatever they

9 said, we had to do." This is the very definition of a master-slave

10 relationship.

11 What Kovac made them do included acts designed to terrorize and

12 humiliate them. Witness 75 described how Kovac forced them all to dance

13 naked on a table, and she demonstrated for you how Kovac sat there with

14 the knife, watching them, enjoying them suffer. Witness 87 not only

15 confirmed this particular incident, but she described for you another

16 incident in which Kovac made her stand alone naked on a table and dance to

17 Bosnian music while he held a pistol to her.

18 All this time the girls were being raped, if not by Kovac and

19 Kostic, then by other soldiers that they brought specifically into the

20 apartment to rape them. Witness 75 described how Kovac forced her to

21 permit the soldier Slavo Ivanovic to rape her, and when she resisted, he

22 hit her and then made AB go with the soldier instead to be raped. This

23 kind of action ensured not only that there were physical controls in place

24 but psychological ones as well, to ensure their compliance.

25 After a month or so, Kovac lent out Witness 75 and AB to a group

1 of about 15 Serb soldiers who took them to another apartment. Even there,

2 however, Kovac went periodically to check on them and see how they were

3 doing. He pretended to be concerned about how they were doing, but he

4 knew full well that they were being abused there, as they had been in his

5 apartment, and they were being used as sex slaves by these Serb soldiers.

6 And this was all part of the cynical attitude that the accused Kovac had

7 in this case. The Witness 75 told you how even when they were being

8 brought to his apartment, he said, "I'll take care of you. I'll protect

9 you." But he only protected them the way someone would protect his

10 property and investment. He treated them like cattle, not like people.

11 When the soldiers whom Kovac gave 75 and AB to moved to another

12 apartment, they took these two girls with them, and all this time it was

13 understood that they were still the property of Kovac.

14 On a night in December 1992, the soldiers returned 75 and AB to

15 Kovac's apartment, but there the soldiers had a fight about who would then

16 take which girl. Some of the soldiers took some girls out without Kovac's

17 permission, and when the accused Radomir Kovac found out, he was furious,

18 and he took it out on the girls. He tracked them down, he beat them up,

19 and then he forced them to stand naked for half an hour on a table in the

20 cold, and then he marched them, naked, down to the Drina River where he

21 threatened to slit their throats.

22 Witness 75 testified that she was so desperate that she thought of

23 throwing herself into the river instead of letting Kovac kill her as he

24 threatened, and it was only when Kostic intervened that the girls were

25 allowed to go back to Kovac's apartment. This was the power that Kovac

1 had over these girls, and this was the use to which he put that power.

2 The next day, Kovac sold AB to a soldier for 200 Deutschmarks and

3 gave 75 to another two soldiers. Witness 75 ended up with the same

4 soldier who had AB, and she described what he did with the two of them.

5 She said, "He sold us everywhere. He would do business with us,"

6 including rape and having other men rape them.

7 After about 15 days or a month, the soldier Jasko Gadzic took AB

8 away, and no one has seen her since. After eight years without a trace, I

9 think that the evidence is fairly clear that she is most likely dead.

10 Witness 75 was helped, on the other hand, by two sympathetic Serb

11 soldiers who eventually helped her to escape in March of 1993.

12 Meanwhile, the accused Kovac kept Witness 87 for himself while

13 Kostic kept AS. The girls were locked in to Kovac's apartment. They

14 could not leave on their own. They had no contact with their families or

15 with the outside world. They couldn't go outside unless Kovac allowed

16 it. And when he wanted to, he took Witness 87 out by having her put on a

17 Serb military hat where he made her take -- go with him to a cafe and sit

18 next to him like an ornament.

19 People that they encountered in this manner were not friendly

20 toward her. In fact, they stayed away. The Defence witnesses themselves

21 testified that they never asked Witness 87 where she came from or how she

22 came to be with Kovac. They didn't have to ask; they knew. Everyone

23 knew. She was not his girlfriend, as he claims. She was his slave.

24 Kostic kept Witness AS as his slave. He beat her when he wanted,

25 raped her when he wanted. He kept her locked up, threatened to kill her

1 until Kovac made the decision that they would both be sold, 87 and AS, and

2 he sold them to two Montenegrin soldiers for 500 Deutschmarks each. These

3 two soldiers bought those two girls just like they bought weapons on that

4 same trip because they regarded, as Kovac did, these girls not as people

5 but as objects, goods, that you could buy and sell and trade.

6 These two Montenegrin soldiers took 87 and AS to Montenegro where

7 they were forced to work, they were forced to be abused by whoever wanted

8 to, and they were lucky, eventually, because, from Montenegro, they were

9 able to escape finally to safety several months later.

10 Now, the accused Kovac has never denied that he lived in the

11 apartment in Lepa Brena during this time or that 87 was there with him;

12 and in fact, all the Defence witnesses that he himself called verify that

13 he lived in that apartment from the summer of 1992 until at least the

14 spring of 1993. And that apartment was previously inhabited by Muslims,

15 but Kovac took it over and used it, although his parents also lived in

16 Foca, not too far away.

17 If you add to this the fact that the Defence witnesses also

18 testified that they knew AS was being kept in that apartment and that

19 Jagos Kostic also lived there, plus the fact that all three of the

20 surviving girls identified Radomir Kovac here in court, you have

21 irrefutable proof, proof beyond a reasonable doubt, that this accused,

22 Radomir Kovac, was indeed the man who kept and enslaved these girls.

23 With regard to the identity of the accused Dragoljub Kunarac, the

24 Prosecution contends that there is also evidence beyond a reasonable

25 doubt. His victims, also identified him in court. And

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1 he, like the accused Zoran Vukovic, openly raped these girls. They made

2 no effort to disguise themselves, and they used their names and nicknames

3 so that identification ultimately at trial is not an issue.

4 The accused Kunarac has admitted that he took the Witnesses 75 and

5 DB to the house at Ulica Osmana Djikica No. 16, and he admits that he had

6 sexual relations with DB at that house while 75 was alone in the other

7 room being gang-raped. Therefore, his identity with regard to this

8 incident is not in issue at all.

9 And likewise, the identification of Kunarac by Witness 87 is not

10 contested because he himself admits that he saw her at Karaman's House,

11 and he admits that he called her out by her name at Partizan and took her

12 as well as Witness 75 and DB and another girl to Miljevina. And that

13 other girl was Witness 190 who also identified this accused in the

14 courtroom.

15 Regarding Witnesses 191 and 196, again, there is no problem of

16 identification. Kunarac himself admits that he saw them at the Trnovace

17 house, and that they were kept there, though he characterises his action

18 with regard to them as not criminal. And in addition, there's evidence

19 that identifies this accused Dragoljub Kunarac, nicknamed Zaga, as the man

20 who came with his soldiers to Partizan and took women out and raped them.

21 Witnesses 105, 95, and 48 all identified him in the courtroom as someone

22 who came frequently to Partizan and took them or others out for rape.

23 Witness 50 also identified the accused Kunarac as raping her at

24 the tailor's house. She pointed out his picture in a photo array before

25 testifying in court, but at that time she told you she was too careful to

1 say from the photograph that this was the right person. But when she saw

2 the accused sitting here in court, she did recognise him. And do you

3 remember how she said she recognised him in court? The eyes. She said it

4 was the eyes.

5 Witness 183 also identified the accused. She had ample

6 opportunity to see him, and therefore to identify him when she testified.

7 The accused came to her house. He spoke to her; he threatened her. He

8 stayed with her while the other two soldiers looted her apartment, and

9 then he took her to a wooded area where he and the other soldiers raped

10 her. And while he raped her, he specifically told her to look him in the

11 eyes, and she did because that's what he told her to do. These are the

12 eyes that she recognised, and these are the eyes that she identified as

13 belonging to the man Kunarac who raped her.

14 I'll turn now to the accused Zoran Vukovic. It is true, and it is

15 a fact that the Prosecution has never hidden, that there were several men

16 by the name of Zoran Vukovic in Foca at this time. Indeed, several

17 Prosecution witnesses testified about other Zoran Vukovics they knew who

18 were not the man who is sitting here in court today with that same name.

19 But does this throw a reasonable doubt on the Prosecution case? We

20 contend that it does not. What is in a name? In this case, very little,

21 because it was not the name that identified the accused in this case, but

22 his face. There may be more than one Zoran Vukovic, but there is only one

23 Zoran Vukovic with this face, the face of the accused in court.

24 Witness 50 identified the accused by his face in the courtroom

25 because he orally raped her at Buk Bijela. This was an incident that was

1 so traumatic for her that it took her eight years finally to describe it.

2 She saw him again at Partizan when he forced her mother to betray her

3 hiding place and turn her personally over so that she could be raped by

4 this man. The face of the person who did this to her stuck in her memory.

5 Witness 75 identified the accused Zoran Vukovic by his face as

6 well. He told her that he killed her uncle, and in fact, that confirmed

7 what she already had seen, that the accused Zoran Vukovic led her uncle

8 away at Buk Bijela, and then her uncle disappeared. The accused Zoran

9 Vukovic raped her orally in Klanfa, Kovac's, apartment.

10 The Prosecution did not charge that incident in the indictment,

11 again, because it was revealed later before -- during trial rather than at

12 the time when the indictment was prepared; and again, we're not asking and

13 we cannot, we believe, ask the Court to convict on this specific count,

14 but the evidence is certainly, certainly relevant to show that the accused

15 Zoran Vukovic was not only involved in the attack on the civilian

16 population, not only knew the context in which his crimes occurred, but

17 also that he was indeed a member of the Dragan Nikolic Detachment, the

18 same unit to which Kovac belonged.

19 Witness 87 also identified the accused Zoran Vukovic by his face.

20 He raped her at Foca High School while two other soldiers raped two other

21 girls in the very same room, in plain sight of one another.

22 Witness 95 identified the accused Zoran Vukovic spontaneously upon

23 seeing him in the courtroom. She didn't even know his name, but when she

24 saw him in the courtroom, she could recognise him as one of the people who

25 came to Partizan, took her out, and raped her. This was not a random or a

1 suggested identification, and as evidence of that, we submit, the Witness

2 95 did not identify Radomir Kovac, who sat next to Zoran Vukovic, although

3 she could have if all she were trying to do was name anybody in the

4 courtroom, but she didn't, because she specifically recognised the face of

5 Zoran Vukovic. Zoran Vukovic may be a common enough name, but is this a

6 common face? We submit that it is not.

7 You'll recall that Witness 48 testified that she was raped by a

8 man named Zoran Vukovic, whom she knew before the war, but she

9 specifically stated that this man in Court was not the Zoran Vukovic who

10 raped her, and she could tell the difference between the face of one Zoran

11 Vukovic and the face of another, and we submit to you that her complete

12 candour in that instance shows to you how reliable the identification in

13 the courtroom has been in this case. Witness 75 also testified that there

14 was another Zoran Vukovic who raped her after she was sold by Kovac, and

15 his nickname was Kifla, and she too could tell the difference between the

16 face of that Zoran Vukovic and the face of this Zoran Vukovic.

17 We submit to you that there can be no question whatsoever that

18 this man here in Court, this man, the accused Zoran Vukovic, is indeed the

19 right man, the man who raped the victims as charged in the indictment.

20 There are some other identifying features of the accused Zoran

21 Vukovic which support his identification. The witnesses who did not know

22 him from before the war could only have known these details if he himself

23 had told them. For example, Witness 50 testified that the accused told

24 her after raping her that he would have done more to her except that he

25 had a daughter her age. And in fact, he does have a daughter about the

1 age of Witness 50, who was 16 at the time -- Vukovic's daughter was about

2 15 -- and the Witness 50 could not have known this fact except if this man

3 had told her that after raping her.

4 Furthermore, there was only one Zoran Vukovic who belonged to the

5 Dragan Nikolic Detachment. Even the Defence witnesses told you that. And

6 in fact, this is that man. And when you put everything together, again we

7 submit to you there can be no question whatsoever that this is the right

8 man.

9 Now, throughout the trial, the Defence for all three accused have

10 tried to attack the credibility of the witnesses, but we submit to you

11 that the credibility of the Prosecution witnesses has remained intact.

12 Let's look at what the Defence has tried to say. They have

13 attacked the memory of the witnesses and the slight inconsistencies

14 between their prior statements and their testimony in court.

15 With regard to memory, everyone knows that memory fades over

16 time. These events took place over eight years ago, and the witnesses

17 often did not remember the events with the clarity of things that may have

18 happened just yesterday. They did not remember every detail; indeed, they

19 did not remember certain incidents. And this often had consequences for

20 the Prosecution case. For example, in response to a direct Prosecution

21 question about a particular rape that is described in the indictment under

22 paragraph 7.13, Witness 87 stated simply that she did not remember. And

23 the Prosecution accepts this, because this is what happens when witnesses

24 tell the truth, so we concede that the incident described in that

25 particular incident has not been proven. But it's only natural that a

1 witness like 87, who was raped over such a long time, by so many people,

2 in a prolonged nightmare, could not remember every incident, and the fact

3 that she told you about that makes her credible.

4 What, on the other hand, were the witnesses able to remember?

5 Quite a bit. There were particular incidents and particular details that

6 stood out in their minds. I'll give you a few examples.

7 Witness 87 remembered being raped by the accused Kunarac at

8 Karaman's House in particular because she wondered to herself how a man

9 who had plaster, a plaster cast on a part of his body, could rape, and yet

10 he did.

11 Witness 75 remembered being gang-raped by 15 soldiers at the

12 tailor's house, and while she was still being raped, the accused Kunarac

13 came into the room and told her to hurry up and get dressed so they could

14 leave.

15 Witness 87 and AS remembered being so hungry while they were

16 locked up in Kovac's apartment, with no way to get out and no access to

17 food, that they had to beg for food from the neighbours and use a rope and

18 a string -- a rope and a bag to get food through the window.

19 Witnesses 191 and 186 remembered that they had to hide all the

20 knives in the house in Trnovace because they were so terrified of the

21 female soldier Jadranka, who had been brought in to terrorize them.

22 The witnesses remembered the way in which Zaga, the accused

23 Kunarac, acted with authority toward his soldiers and all the witnesses

24 remembered the terror, the humiliation, and their hopelessness.

25 If there was any selective memory, as the Defence has tried to

1 say, this is how the memory was selected: The things that made a deep

2 impression, the things that lasted over time.

3 You could also see how personality affected the amount of detail

4 that the witnesses were able to provide. You will recall how Witness 87

5 admitted that she was not very good with time sequencing, and therefore

6 she couldn't say specifically when something happened in relation to

7 another thing, but she could remember very well that things did happen.

8 And Witness 75 was particularly good with names and nicknames, and she

9 provided quite a list of those as well. We submit to you that these

10 variations in personality and ability are perfectly human and, we submit

11 to you, perfectly credible.

12 The Defence has at times challenged the ability of the witnesses

13 to accurately observe things because of the trauma that they were

14 undergoing. However, there is absolutely no evidence that trauma affects

15 in a negative way the reliability of these witnesses. On the contrary, we

16 submit to you that whatever one notices in the course of trauma remains

17 forever etched in one's mind and repeats itself like a bad dream. The

18 witnesses have described this to you as well.

19 There were times when two witnesses might have testified about the

20 same incident, and there were slight variations in their testimony. For

21 example, one witness may have testified that she was present at a

22 particular time and place and incident, and another witness who was there

23 at the same time may not have noticed her. But we all know from common

24 experience that we notice more what's happening to ourselves than what is

25 happening to other people, and therefore we submit to you that if there's

1 a variation between this kind of testimony, that the testimony of the

2 witness regarding what happened to her personally is more reliable than

3 what another person is observing. But, of course, in most of the

4 incidents in this case, the witnesses do indeed corroborate each other and

5 corroborate each other's presence; corroborate what happened.

6 Finally, there is the very common problem with narrative and how

7 we describe things that happened to us. We all know from common

8 experience that when we tell a story, the same story, over and over again,

9 that each time we tell it there is a slight variation. Some details are

10 added, some details are left out, but it is still a true story. Add to

11 this the fact that witnesses have often had to tell about instances that

12 spanned several months, with several occurrences and several

13 perpetrators. Witness 95 put it very well. She said, "There are always

14 things left unsaid. I would need at least ten days to tell it all, to

15 tell my story, and I still wouldn't tell it all." Only with a memorized

16 script would there be absolute consistency, but that is not what the

17 witnesses in this case, the Prosecution witnesses, anyway, it is not what

18 they had.

19 Sometimes the variations between testimony and prior statements

20 had nothing to do with memory, but rather the reluctance to describe

21 everything. You'll recall Witness 50, who finally came forward with her

22 description of how Zoran Vukovic raped her by putting his penis in her

23 mouth at Buk Bijela. She very candidly told you she was ashamed and that

24 she could not bring herself to utter the words to describe this

25 unspeakable act. It was not a question of memory. She remembered very

1 well that this happened and she remembered very well that Zoran Vukovic

2 did this to her. But she was 16 years old at the time, and she never even

3 told her family. And she explained to you why. She said, "I thought that

4 if I had to suffer, they didn't have to know about it."

5 Consider also Witness AS, who was initially too afraid to respond

6 to requests by the Office of the Prosecutor for an interview. Even though

7 she was still visibly frightened when she was here testifying, she

8 explained why she did come forward. She said, "Because of my future."

9 When pressed, she added, "To say what happened." And when pressed even

10 further, she said, "It will make me feel better." Now, we know the

11 courtroom is not meant to be a place for therapeutic experiences, but very

12 often it was.

13 Witness 50 explained that she was finally able to describe the

14 initial rape because she had made a solemn declaration to tell the whole

15 truth. And likewise, Witness 191 explained that although she has now

16 tried to put everything behind her, "I came here today to talk about

17 everything that happened to me, because I think this is the right place to

18 say it."

19 The Defence has raised an issue in its Final Trial Brief which the

20 Prosecution feels it must address because it is certainly the first time

21 that they have raised it in this trial, and this is the allegation that

22 the Prosecution witnesses were somehow coached. The Prosecution submits

23 that there is not even the slightest hint that this happened.

24 The witnesses were never asked about any of this coaching

25 business, even though the Defence had every opportunity to cross-examine

1 them. The witnesses were never given a chance to counter these

2 allegations with the descriptions of the measures that were taken to

3 ensure that they were impartial and truthful. And we submit to you that

4 if the Defence truly believed that the witnesses had been told in any way

5 whatsoever to say anything but the truth, that they should have aired this

6 during the trial and not have waited until all the witnesses had left The

7 Hague, were not available to explain what happened, to describe how they

8 were being truthful, how they were not coached or told what to say. And

9 instead, at this late stage, we have this innuendo that is just left

10 dangling in the air with nothing left to support it.

11 And likewise, the Defence has hinted that somehow the witnesses

12 have concocted their stories together. Again, there is absolutely no

13 evidence to support this. There's no evidence that the witnesses even had

14 contact with each other, let alone an opportunity to collaborate and make

15 up stories.

16 Many of the victims were thrown together by misfortune. They

17 didn't know each other before this, and after the incidents were over,

18 after they were -- had moved on, they didn't have contact with each other,

19 instead, moved on to their separate lives. And in fact, in one instance

20 when there was some information that a witness who was a family member, a

21 relative of another witness, had contacted that witness, the Prosecution

22 brought this to the Court's attention and brought it to the Defence

23 attention so they could cross-examine on it, and the Defence chose not to.

24 The Prosecution in this case did not present a perfect case, but

25 that is its very strength. If every witness told a perfect story and

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1 every detail fit in precisely, it would be too simple, too easy, and

2 simply not true. Imperfections, as we all know, are the hallmark of

3 reality and point to more truth than the perfect minute-by-minute accounts

4 given by the Defence witnesses.

5 The Defence has complained during trial about the way in which the

6 witnesses answered their questions and has tried in a simplistic way to

7 mischaracterise their answers. The Defence complains, for example, that

8 the witness answered the Prosecution's questions but not theirs. First of

9 all, this is not true. We've given you examples already of when

10 Prosecution witnesses gave candid answers which actually hurt the

11 Prosecution case. Secondly, the witnesses were thoughtful and they

12 listened carefully to the questions before answering.

13 You must ask yourselves, was it the answer or merely the question

14 that was confusing? Did the witness not try to answer as best as she

15 could, and was the question asked in such a way as to provoke the witness?

16 I'll give you another example of how the witnesses in this case

17 were truthful and impartial. They did not paint all Serbs as evil. They

18 did not harbour prejudice or mischaracterise based on stereotypes.

19 Scattered throughout the testimony of exceedingly cruel acts were moments

20 of goodness, and the witnesses told you about them: About the Serb woman

21 who befriended those kept at Partizan and did what she could to protect

22 them; about the guards at Partizan who did manage to turn away the

23 soldiers when they came to take women; about the soldier who saved

24 Witnesses 191 and 186 from the accused Kunarac, and who, as 191 poignantly

25 put it, "Didn't see me just as a Muslim but as a human being," and whom

1 she later married; and even about those Serb soldiers who refused to rape

2 despite all the pressure from their peers.

3 Witness 48 described the soldier who took her to an apartment but

4 did not rape her, took pity on her, and instead gave her shampoo and

5 underwear for the other women at Partizan. DB also testified about being

6 protected at Buk Bijela by a soldier who was a former classmate; and other

7 witnesses described being taken out by soldiers who took pity on them and

8 did not rape them when they saw what a bad state they were in.

9 It is indeed small consolation that the refusal to do evil had

10 become noteworthy during this terrible time, but the witnesses told you

11 about it. They did not paint a black and white picture based on ethnic

12 divisions. They told you in all its complexity about human relationships,

13 the possibilities and limitations of love and hate, and about the choices

14 that people with power like the accused could and did exercise.

15 There was only one reason and one reason alone for the witnesses

16 to point their fingers at these accused while exonerating others, and that

17 is what these accused did to them. These men did these unspeakable things

18 to them. The witnesses in this case did not bear a grudge; they came

19 simply to bear witness.

20 The Prosecution witnesses in this case were reluctant. They were

21 women who had nothing to gain by coming in here and speaking the truth

22 about these horrendous things that happened to them. They subjected

23 themselves to attacks on their credibility and their honour, and to a

24 trivialisation of their very real suffering.

25 Recall the cross-examination of Witness 87 during the rebuttal

1 case. Mr. Kolesar asked her, "Why don't you tell us that Kovac helped you

2 and that you liked him?" She answered with as much dignity as she could

3 under those circumstances, and she said, "To begin with, I did not like

4 him. Secondly, it's not true that he helped me. To be grateful? There's

5 nothing to be grateful for because, because I really don't see why I

6 should be grateful. Because he raped me? Because Kostic raped me?

7 Because he sold me to some Montenegrins? I don't know."

8 You could see the witnesses' demeanor and judge from their

9 expressions and their body language that they were being truthful, and it

10 should have been obvious to everyone in the courtroom how difficult it was

11 for the witnesses to testify, how painful it was still after all these

12 years, and how awkward it was to describe details of these sexual acts in

13 this setting. But you could also see how thoughtful the witnesses were

14 and how they tried to give fair and accurate answers to utterly demeaning

15 questions.

16 We submit to you that the Prosecution witnesses gave careful,

17 measured testimony, that they stood up admirably to vigorous

18 cross-examination, and therefore they are reliable and credible.

19 I'll address specifically the defence put forth by the accused

20 Kovac. Through cross-examination and the presentation of several

21 witnesses, the Defence for the accused Radomir Kovac has attempted to

22 paint the situation in the Lepa Brena apartment as one of salvation rather

23 than enslavement. No credible evidence supports this ludicrous

24 contention.

25 The things that the accused Kovac claims as fact are simply not

1 true. There were no shopping trips, no excursions, no visits to

2 neighbours, no parties. The girls were not free to come and go. His

3 mother never brought them food. There were no fun times. There were no

4 love letters.

5 The Prosecution submits that the Defence witnesses who claimed

6 that they saw the girls going about, happy with their lives, are simply

7 not credible. They found that it was awkward for a Serb soldier to have a

8 Muslim girl in their midst. How was it that that girl would then dance,

9 dance with such strangers that she had just met?

10 The woman who lived downstairs from Kovac claimed to know nothing

11 about what was happening right upstairs from her, even though every

12 soldier who lived there or went to visit had to pass right by her door.

13 And remember the Witness DL, the woman who lived in the same building as

14 Kovac, and who originally claimed that Witness 87 told her personally that

15 she was in love with Kovac, and when she was confronted with her prior

16 statement in which she never mentioned this, she finally had to admit that

17 she never really talked to Witness 87, not really, and that she'd only

18 heard that she was the girlfriend.

19 The fact is, Kovac did not save those girls. You have to ask

20 yourselves if someone were trying to save girls and keep them in an

21 apartment where they were being sheltered, why sleep with them in the same

22 bed when he had his parents' house as a place that he could also stay?

23 The girls did not love him. 87 told you when she was asked by

24 Defence counsel whether, "it was easier for you and better with Kovac than

25 in the secondary school centre, and in Partizan and in Karaman's House,"

1 and Witness 87 told you, "Well, as far as all those other places are

2 concerned, there wasn't any difference because I was raped at all those

3 places, and even at Kovac's apartment by Kovac himself and by Kostic, so

4 that for me, personally, I can make no distinction between those places.

5 There's no difference."

6 And that was the essence of their situation. A slave is a slave,

7 whether it be to one person or to many.

8 The Prosecution does not deny that there was a situation in Foca

9 at this time in which a Muslim girl did fall in love with a Serb soldier,

10 and this was the case with Witness 191 who truly did fall in love with a

11 man who rescued her from the accused Kunarac. She ended up choosing to

12 stay and marrying him. Love does happen, despite the assertions by the

13 Defence psychologist Raskovic-Ivic that it is impossible under these

14 circumstances, and therefore attacks the credibility of Witness 191. But

15 love only happens when someone treats another person like a human being,

16 with tenderness and understanding, and a recognition that love must be

17 given freely if it is to be love at all.

18 Love is not what happened with Kovac and the girls he kept. What

19 love was there when Kovac held Witnesses 87 and AS for months in isolation

20 against their will and then sold them like chattel? What tenderness was

21 there in forcing 87 and the other girls to stand naked on a table in the

22 freezing cold, march them outside, and threaten to slit their throats and

23 throw their bodies into the water? Both Witnesses 87 and 75 told you that

24 they each contemplated killing themselves because of what Kovac had done

25 to them.

1 Your Honours, the Defence may ask you to believe that this was a

2 love relationship, but it was no such thing. It was a hate relationship

3 in which the identities of the victims were mocked and belittled, both as

4 Muslims and as women. It was a fear relationship in which guns and

5 threats and beatings were used to subjugate the victims. And in the final

6 analysis, it was a master-slave relationship in which all that mattered

7 was that the master, Radomir Kovac, could display his power of ownership

8 over another human being, and he did so, with glee.

9 What has the accused Zoran Vukovic claimed as his defence? The

10 medical defence of Zoran Vukovic barely merits comment. Suffice it to say

11 that the only evidence that the accused fell in the woods and injured his

12 testicles so that he was impotent for a year comes from the nurse, the

13 Defence Witness DV, whose logbook clearly did not show what she claimed it

14 would; and also there was a friend of the accused Zoran Vukovic who

15 claimed to see the injury.

16 At the insistence of the Defence, the Trial Chamber appointed an

17 impartial medical expert who conducted two detailed and exhaustive

18 examinations of the accused. This impartial expert found not only that

19 there was no indication to support the accused's story, but in fact, that

20 his account was most likely fabricated because it excluded obvious medical

21 facts which someone who actually experienced such an injury in such a way

22 would undoubtedly describe, namely, that the entire area of this injury

23 would turn black within a few days.

24 And the best that even the Defence medical expert could offer was

25 that he could not exclude the possibility that the injury occurred, not

1 that there was any proof whatsoever that the injury had in fact occurred,

2 and therefore the Prosecution submits this Court is left with no evidence

3 of this alleged injury whatsoever except the secondhand description of

4 circumstances that even a medical expert found to be suspicious. And

5 therefore the only conclusion that this Court should draw from this

6 botched attempt of deception is to regard it as a last-ditch effort by a

7 guilty man.

8 I'll move at this point to a discussion of the legal elements of

9 the crimes charged in the indictments. Four substantive crimes have been

10 charged in this case: rape, torture, outrages upon personal dignity, and

11 enslavement. They have been charged as either a violation of the laws or

12 customs of war, a crime against humanity, or both.

13 I'll start with the description of rape. All three accused have

14 been charged with rape as a war crime and as a crime against humanity.

15 Rape requires sexual penetration, however slight, accompanied by

16 coercion, force, or threat of force. The sexual penetration has not been

17 challenged in any of the particular acts alleged in the indictments.

18 There was vaginal, oral, and, on occasion, anal penetration.

19 The Defence focuses instead on the element of coercion and force.

20 The clear jurisprudence of the Tribunal states that it is enough that the

21 circumstances be coercive so that the victim is fearful, detained, under

22 duress, or psychologically oppressed. In every instance, these conditions

23 were present.

24 War itself is coercive, but the specific situation of these

25 victims encompassed more than the mere fact of war itself. They were all

1 detained; that is, they could not move about freely. Never mind what the

2 Defence says about Foca High School and Partizan being refugee collection

3 centres, these women and children were detained because they had nowhere

4 to go. And in any event, when the soldiers came to take them out to these

5 different houses and apartments for rape, at least at that particular time

6 they were detained because they were not free to leave the soldiers.

7 The victims were scared, and rightfully so. In an ethnic

8 conflict, for a Muslim female to be taken out by a Serb soldier whom she

9 didn't know, who was armed, who often came in groups, and who took her to

10 an unfamiliar, isolated place for no reason other than rape, those are

11 reasons enough to instil fear and ultimately compliance.

12 The victims were under duress and psychologically oppressed.

13 Given what had happened in their villages where their husbands and

14 brothers and uncles were killed, their houses were burned, and their

15 belongings taken away, there was every reason for the witnesses and the

16 victims to believe that resistance was useless.

17 The witnesses themselves used various words to express the idea of

18 forcible sexual intercourse. They used the word "rape," and they

19 characterised their situation as, "It being against my will," "having no

20 choice," or, "being scared what he might do otherwise."

21 Witness 132 explained that even the language itself does not

22 permit the separation of rape and force. She explained to you, "In the

23 Yugoslav language there is a word, "silo," which means power, strength.

24 To me, that very word, "silovanje," (which means rape), meant that they

25 used force, power, strength, to bring me there, and that means

1 everything. Everything I went through, as well as the other girls,

2 occurred not through my will or my acquiescence, but by the use of force,

3 power, and strength."

4 The circumstances that the victims found themselves in were

5 coercive enough, but in addition, those who tried to resist were hit or

6 beaten. Women and girls who were taken out from Partizan were beaten,

7 like Witness 95, and everyone saw that. The perpetrators displayed

8 weapons constantly, and they threatened to kill the women or their

9 children. Consent under these circumstances is unimaginable.

10 You'll recall the reaction of Witness 95 when asked even by the

11 Prosecution if the sexual contact was against her will. She answered with

12 appropriate outrage: "Please, madam, if over a period of 40 days you have

13 sex with someone, with several individuals, do you really think that that

14 is with your own will?"

15 Neither this Tribunal nor any of the national jurisdictions

16 examined in its prior judgements requires resistance as an element of

17 rape. The Defence mischaracterises the law in this way in a clear affront

18 to the legal system and to the victims. That the victims often sank into

19 despair and indifference does not make their passivity any form of

20 consent.

21 And indeed, the specific circumstances surrounding many of the

22 rapes support even the most narrow interpretation of force. Jagos Kostic

23 slept with a gun under his pillow when he was raping AS in Kovac's

24 apartment. When witness 75 refused to go with Slavo Ivanovic to be raped,

25 Kovac made AB go instead. And although specific questions were not asked

1 about this, it was obvious to everybody that the physical ability of these

2 three soldiers to overpower 15- or 16- or 19-year-old girls, that was

3 obvious.

4 I'll address the rape of DB specifically. She acted under the

5 direct threat of Kunarac's deputy, "Gaga," who threatened to kill her if

6 she did not sexually satisfy his commander. Aside from the obvious fact

7 that Kunarac knew about this and heard the threat and understood perfectly

8 what was going on, let's assume for the moment that he did not. Is

9 consent real, or can there be even the appearance of consent under the

10 circumstances, as even Kunarac himself claims? He admits that DB had been

11 detained, he had taken her from Partizan and brought her to this house,

12 allegedly to confront the soldiers. He admits that she was afraid and he

13 admits that he knew at that time that she had previously been raped by

14 soldiers. That was the reason he was bringing her to the house. The

15 Prosecution submits that there is no way the accused Kunarac can assert

16 that he was mistaken about her willingness under these circumstances to

17 engage in any sexual act with him.

18 Next I'll address torture. Torture requires the infliction of

19 severe mental or physical suffering, coupled with official involvement and

20 a prohibited purpose. In this case, it has been charged in relation to

21 the rapes by the accused Zoran Vukovic against the girls at Foca High

22 School, the rapes by Kunarac and Vukovic against those detained at

23 Partizan, and by Kunarac as he committed the rape against Witness 183.

24 The Prosecution submits that the act of rape in and of itself

25 involves severe mental and physical suffering.

1 The Defence puts forth two faulty arguments in this regard.

2 First, they state that the suffering must be greater than that "normally"

3 suffered in rape. It is hard to imagine an act that causes greater

4 suffering than rape. The Defence psychologist Raskovic-Ivic also

5 testified to this herself, and therefore nothing more is required than the

6 act of rape itself for the infliction of the severe suffering.

7 The Defence also claims that the extent of the suffering must be

8 verified through medical or scientific tests, and this is also wrong. The

9 Rules of this Tribunal do not require any corroboration of the witness'

10 testimony. The witnesses themselves told you they how suffered, how

11 painful it was during the rapes, and how they continue to suffer even

12 today. Witness 95 told you that the soldiers raped with fury. And

13 Witness 50 stated that while Kunarac raped her in the house number 16, "He

14 was very forceful. He wanted to hurt me as much as possible, but he could

15 never hurt me as much as my soul always hurt me." The suffering inflicted

16 by the rapes is surely sufficient to constitute torture.

17 With regard to official involvement, the Prosecution contends that

18 it is sufficient that the perpetrators were soldiers, as they were in this

19 case. It is not important that they were "simple soldiers," as the

20 Defence has claimed. The evidence is undisputed that the accused were

21 active in the fighting during the time that they also raped, that they

22 were in uniform, and that they were armed.

23 Moreover, the evidence of official sanction, that is, the apparent

24 complicity of the military and the police in the repeated and widespread

25 rapes, reinforce this element.

1 Finally, for torture, the prohibited purpose for which these rapes

2 were inflicted included humiliation, discrimination, intimidation,

3 obtaining information, and punishment.

4 Discrimination is based on the fact that the victims in this case

5 were all Muslim and female. The evidence shows that the perpetrators made

6 derogatory comments about Muslims. Kunarac, for instance, told 183 to

7 look a Serb in the eye when he was raping her, and Kunarac also told

8 Witness 48 that she would bear Serb babies.

9 In every incident, humiliation was also a goal. The public and

10 open nature of the rapes, where girls were being raped in the same

11 classroom, also point to humiliation. Returning the raped girls to their

12 mothers or returning the raped mothers to their children also was part of

13 the intent to humiliate. During the gang-rape of Witness 183, the accused

14 Kunarac taunted her and said, "Now you'll never know whose child you'll

15 bear." And wasn't the rape of Witness DB, this elaborate set-up with Gaga

16 forcing her to take an active role in her own rape, also designed to make

17 this an especially humiliating circumstance? The Prosecution submits that

18 it was.

19 Intimidation was also present in every case. The open rapes of

20 the girls and women at the high school and at Partizan served to

21 intimidate all the detainees. Indeed, the rapes served to intimidate the

22 entire Muslim population. When the victims left the territory of the

23 municipalities, others would learn of these crimes and the rapes would

24 serve the ultimate purpose of ethnic cleansing.

25 For the girls taken from Partizan on the 2nd of August, 1992,

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1 punishment was also an apparent reason for their rapes. The accused

2 Kunarac picked these girls specifically because they had spoken to a

3 journalist a few days earlier, and he said, "Those who like to talk, come

4 with me."

5 Finally, in the rape of Witness 183, there was the further motive

6 of obtaining information. The accused Kunarac and the other two soldiers

7 who raped her had accused her of sending messages over the radio, and they

8 also tried to obtain information about where she had hidden money and

9 gold.

10 Therefore, the Prosecution submits all the elements for torture

11 have been proven beyond a reasonable doubt.

12 I'll now turn to enslavement. The only legal definition of

13 enslavement that currently exists in international criminal law is that a

14 person exercise powers of ownership over another. In its written

15 pleadings, the Prosecution has enumerated several indicia of ownership,

16 such as the ability to control movement, the assertion of exclusivity, the

17 ability to buy or sell, and abusive treatment, such as sexual assault.

18 The main characteristic of enslavement in this case was the sexual abuse.

19 What made the situation with the accused Kunarac --

20 THE INTERPRETER: Could you please slow down for the translation.

21 Thank you.

22 MS. KUO: What made the situation with the accused Kunarac and

23 Kovac more than rape alone was the long-term, repeated abuse, coupled with

24 the stripping away of personhood, the reduction of a person into a thing.

25 This included parading girls around like cattle, being able to dispose of

1 them when he was tired of them. The evidence of being forced to do

2 housework can very easily be trivialised as an aspect of slavery, but it

3 was one component of the overall condition of slavery that the girls were

4 forced to serve hand and foot the very men who raped them.

5 The Defence has challenged the evidence on this charge by

6 contending that the girls must have wanted to stay voluntarily because

7 they made no effort to escape and that slavery cannot exist unless there

8 is permanent ownership. They are mistaken on both counts.

9 First, attempts to escape, like resistance to rape, must be

10 evaluated in context. The witnesses told you that they had nowhere to go

11 once they were taken to houses convenient only to the accused, isolated

12 from people who could help them. AS described being taken around town but

13 not encountering anyone who was willing to help. Witness 75 described

14 being mocked by the Serbs who remained in Foca. Why didn't these girls

15 try to escape? Because they couldn't. And how do we know that? Because

16 when they could, they did. Witnesses 191, 186, 87, 75, and AS all managed

17 to escape when they could, and often with the help of other people.

18 Regarding the length of time necessary for enslavement to exist,

19 there is no magic measure of time when slavery begins. If a person is

20 bought and then sold within a minute, would you deny that a master-slave

21 relationship existed during that minute? Likewise, as long as the

22 evidence supports the exercise of ownership over another person, time is

23 only one factor among many which you should consider. In the case of both

24 the accused Kunarac and Kovac, the duration of enslavement lasted several

25 months, and that, by any measure, is sufficient.

1 And finally, I'll turn to outrages upon personal dignity. In

2 previous cases before this Tribunal, rape has been charged as an outrage

3 upon personal dignity. However, in this case, because rape is charged

4 separately and directly, the Prosecution has limited the charge of

5 outrages upon personal dignity to those actions separate from rape

6 itself. And in this way, we submit to you, there is no overlap between

7 the individual acts of rape and the outrages upon personal dignity, which

8 is composed of other actions. And primarily these other actions are those

9 attaching to the conditions of enslavement, and therefore involve

10 Kunarac's treatment of Witnesses 191, 186, and JG, and Kovac's treatment

11 of Witnesses 87, 75, AS, and AB.

12 Therefore, included under the charges of outrages upon personal

13 dignity are the following acts: treating the victims like property,

14 making them stand or dance naked, making them walk in public naked,

15 keeping them as personal sex slaves, forcing them to have sex with other

16 men, forcing them to endure threats and taunts from other soldiers,

17 including a woman soldier, buying and selling and disposing of the

18 victims. That the victims have emerged today with their dignity restored

19 is in no way a diminishment of the outrages done to them by the accused

20 Kunarac and Kovac.

21 I'll turn now to the jurisdictional elements of Articles 3 and 5.

22 In order to constitute a violation of the laws or customs of war under

23 Article 3 of this Tribunal's Statute, there must be an armed conflict,

24 there must be a nexus between the criminal act and the armed conflict, and

25 there must be some violation of treaty or customary law. In addition, the

1 victims must be persons taking no active part in the hostilities, and in

2 this case, the victims were all civilians. That is undisputed.

3 The existence of the armed conflict was stipulated by both parties

4 at the beginning of trial, and it doesn't matter for purposes of this

5 Article who started the war. There was an armed conflict in the

6 municipalities of Foca, Gacko, and Kalinovik from 8th of April, 1992,

7 until at least the spring of 1993.

8 The accused all took part in this armed conflict. That is also

9 undisputed.

10 The Defence has argued that Article 3 protects only property and

11 not persons. This is nonsense. The very foundation of this provision

12 against war crimes is the protection of persons, persons who are not

13 involved in the hostilities but are nevertheless caught up in the middle

14 of it. The judicial interpretation given to this Article has been broad

15 and all-embracing.

16 The other Defence argument about Article 3 seeks to attack the

17 grounding of the substantive crimes in this provision. But these are not

18 new crimes. The prohibition against rape existed in treaty law so long

19 and so commonly that it has now become part of customary law. Rape has

20 been prohibited in the Lieber Code of 1863, and the Regulations Annexed to

21 the Fourth Geneva Convention of 1907, the 1929 Geneva Convention, the

22 Allied Control Council No. 10 governing the subsequent proceedings after

23 Nuremberg, as well as the Geneva Conventions of 1949 and the 1977

24 Additional Protocol II. In several trials before a Dutch military court

25 in Batavia after World War II, several Japanese military officials were

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1 also convicted of rape as a war crime. Therefore, there can be no

2 argument whatsoever that rape is somehow a new crime or a new violation of

3 the laws or customs of war. While rape has always existed during war,

4 rape has also always in modern times been a war crime.

5 The evidence has proven beyond a reasonable doubt that all these

6 jurisdictional elements existed to support the characterisation of rape,

7 torture, and outrages upon personal dignity as war crimes under Article 3.

8 In order to constitute a crime against humanity under Article 5 of

9 the Statute, there must also be an armed conflict, the criminal acts must

10 be in the context of a widespread or systematic attack on the civilian

11 population, and furthermore, the perpetrator must be aware of the context

12 of his crime.

13 Here, the armed conflict again is not in dispute.

14 The widespread or systematic attack on the Muslim population has

15 been proven beyond a reasonable doubt. An attack in this regard does not

16 have to be military in nature. In fact, we can put aside the ten days of

17 actual fighting in Foca town because everyone has testified and agreed

18 that by about the 17th of April, 1992, after the fighting in Foca, the

19 fighting was over and the Serbs had won.

20 Let us say, then, that the attack on the Muslim population began

21 at that time in earnest. In Foca, after the 17th of April, Muslim men

22 were arrested, weapons were seized, and mosques were destroyed. This was

23 no longer in any kind of military context. Rather, this was an attack

24 aimed specifically at the civilian population. Neighbouring Muslim

25 villages were burned, the men were shot, and the women taken into

1 detention. A column of Muslim women, children, and elderly persons trying

2 to reach safety in the direction of Konjic were stopped at Ulog and taken

3 back to Kalinovik and detained. In Foca High School, Partizan Sports

4 Hall, and the Kalinovik school, all the detainees were Muslim. All the

5 rape victims in this case were Muslim.

6 It doesn't matter for purposes of this case what may have happened

7 to Serb or Croat women at the same time. Evidence of those crimes can be

8 presented in a different proceeding in a different case. What matters in

9 this case is what the accused did and the attack in which they

10 participated.

11 This attack on the Muslim population was widespread, and that

12 means there were a large number of victims, and it was also systematic.

13 In a matter of months, the more than 5.000 Muslims who lived in Foca town

14 alone were expelled, driven out, arrested, or killed. Other Muslims in

15 the neighbouring municipalities of Kalinovik and Gacko, as well as Foca

16 municipality itself, faced a similar fate. The witnesses who testified

17 here are the survivors of this ethnic cleansing. Not a single one of them

18 lives in Foca, Gacko, or Kalinovik anymore, and in fact, the Muslim

19 villages of Mjesaja, Tresanj, and Jelec no longer exist.

20 The attack was systematic. The repeated and continuous nature of

21 the attack was evidence enough that it was systematic. Nevertheless,

22 there was also evidence that there was an official policy behind all

23 this. When mosques were burned, for example, although on paper there was

24 a regulation against it, no one was ever held accountable. The arrest and

25 execution of Muslim men by soldiers and military police was officially

1 sanctioned. The Witnesses 48 and 95 described going to the police and

2 complaining about what was going on at Partizan, and instead of being

3 helped, one of the witnesses was raped. When Witness 183 was fleeing the

4 accused Kunarac and seeking help from the police, she too was turned away

5 and harmed by being hit with a rifle. And Witness 95 described how the

6 soldiers coming to Partizan said they had official papers saying that they

7 could take women out of Partizan because sexual contact would be good for

8 the soldiers' morale.

9 Did the accused act with awareness of this context? The evidence

10 shows indisputably that they did. All three were soldiers in the Serb

11 army. All three lived in Foca. All three could see the rounding up of

12 the Muslim men, the detention of the Muslim women and children. Witness

13 75 identified Kovac as actually participating in the attack and the arrest

14 of civilians in Mjesaja. She and Witness 50 also both saw the accused

15 Zoran Vukovic at Buk Bijela. Zoran Vukovic participated in the killing of

16 75's uncle at Buk Bijela and Kovac also told 75 that he had killed her

17 brother.

18 As soldiers, all three of the accused were right in the middle of

19 the conflict. They were right in the middle of the attack on the civilian

20 population. Only with the greatest of effort could a Serb civilian fail

21 to know what was going on, let alone a soldier who was involved.

22 The witnesses told you that, even before they were brought to

23 Karaman's House, they had already heard about it, and they had already

24 heard that this was a so-called brothel where girls were being brought

25 involuntarily. And Kovac's defence, that he had saved the girls from

1 Karaman's house really hinges on his knowledge of what was going on at

2 Karaman's House; otherwise, how could he even claim that he was saving

3 them? Saving them from what, you might ask? He knew what was going on.

4 He knew the context, as did Kunarac and Vukovic.

5 And likewise, the accused Kunarac also knew about Karaman's House

6 because he testified that the soldiers there had told him to pick out a

7 girl, and he did: 87. He knew the context. He also admits himself that

8 he heard from the journalist about rapes by soldiers that were occurring

9 at Partizan, and in all his testimony and in all the evidence he

10 presented, he never once doubted the truth of what she told him. He knew.

11 Vukovic as a member of the Dragan Nikolic Detachment was

12 associating with other members such as Kovac, whose apartment he visited,

13 DP1, and DP6, each of whom also enslaved girls, and each of whom was also

14 charged in the indictment.

15 It is therefore utterly incredible, we submit, that the accused

16 would not have known about the context of which their actions formed an

17 essential part.

18 And finally, I will address the personal responsibility of the

19 accused. Each accused is personally responsible for each and every act of

20 rape, torture, outrage upon personal dignity, and enslavement that he

21 personally and physically committed.

22 In addition, whenever the accused acted in concert or as part of a

23 plan, all the accused must be held responsible for each other's actions.

24 That is, with soldiers who were acting with them in that same plan. So,

25 for example, when Zoran Vukovic raped Witness 87 at the high school after

1 Dragan Zelenovic divided up the four girls among the four soldiers, he

2 should also be held responsible for all four rapes. He knew what was

3 going on, and he participated willingly and knowingly in that plan.

4 Likewise, the accused Kunarac must be held responsible for the

5 gang-rape of Witness 75 by soldiers in the same house at the same time

6 that he was raping DB. He brought them both there specifically for the

7 purpose of rape. He knew what was happening, and he participated in that

8 plan. He must be held responsible for that rape as well as all the other

9 rapes which occurred in and around that house when he brought the victims

10 from Partizan.

11 The accused Kunarac is also personally responsible under the law

12 for all three rapes that occurred against Witness 183 by him and by the

13 other two soldiers who were there with him. They acted together and raped

14 her at the riverbank.

15 And finally, the accused Radomir Kovac must be held personally

16 responsible not only for the rapes that he physically perpetrated against

17 Witnesses 87, 75, AS, and AB, but also for the rapes perpetrated by other

18 soldiers, for instance, Jagos Kostic and his repeated rapes of Witness AS

19 and the soldiers to whom he gave Witnesses 75 and AB.

20 All three accused must bear personal responsibility for all these

21 crimes, and in addition, the accused Dragoljub Kunarac bears superior

22 responsibility because of his role as the commander of the Independent

23 Zaga Detachment.

24 I'll now turn to my colleague Dirk Ryneveld who will address these

25 points.

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1 JUDGE MUMBA: Thank you. Mr. Ryneveld?

2 MR. RYNEVELD: Yes, Your Honour. I note the time, and I can

3 assure you that the areas that I intend to address, 7.3 responsibility and

4 sentencing considerations, ought to be able to be completed in the

5 afternoon session. If you wish, I could start, but I should be able to

6 finish well in advance of the time for the afternoon session. I'm in your

7 hands.

8 JUDGE MUMBA: The Trial Chamber is of the view that you may start.

9 MR. RYNEVELD: At the outset, Your Honours, our submission is

10 that, based on all the evidence that you have heard, you ought to have no

11 doubt at all that at the time of the commission of the offences covered by

12 the indictment, Mr. Kunarac was a commander of other soldiers who

13 committed war crimes, and is therefore criminally liable under Article

14 7(3) of the Statute. We say that we have proved that he is a commander

15 both by means of de jure command and by de facto command.

16 I propose to deal with the issue of de jure command first. We

17 must remember that, according to the evidence, when the armed conflict

18 broke out, the Bosnian Serbs did not necessarily appoint their commanders

19 from persons with equivalent ranks in the former JNA. For that matter,

20 neither did the Bosniaks.

21 Colonel Mohamed Nogo, who served as Chief of Staff of the centre

22 for combat training of the Army of BiH, testified that rank was not taken

23 into account at the beginning of the armed conflict in order to be

24 appointed a commander. In his testimony, he indicated that what was taken

25 into account was who was capable of leading men and being in charge.

1 You will also recall that, when examined in chief by Mr. Mundis,

2 witness Husein Alic testified that, although he was not a professional

3 soldier, he became Chief of Staff of Tactical Group II. He also indicated

4 that none of the individuals within the tactical group had military ranks.

5 Those didn't come, I understand, until 1994. Prior to that, leadership

6 was based on functional responsibilities rather than rank.

7 Similarly, the Bosnian Serb army in the initial stages of the

8 conflict followed the same pattern. The Defence expert, General

9 Radinovic, acknowledged as much. He specifically agreed with Colonel

10 Nogo's evidence that, "At the beginning of the war, rank did not count.

11 What counted was who was able to lead men and be in charge."

12 He went on to say in examination-in-chief that, "Dragoljub Kunarac

13 was the leader of a reconnaissance group ... The nature of his command

14 duty followed from the nature and type of the men he was in charge of and

15 whom he commanded."

16 These phrases come from the Defence's own expert in direct

17 examination, "command duty," "in charge of," and "commanded." We submit

18 there can be no question that the accused Kunarac, one, had a command

19 duty; two, was in charge of his men; and three, commanded them in a de

20 jure capacity as well as in a de facto capacity.

21 Consider also the evidence of Kunarac himself, both in his

22 statement to the investigators before his trial and before you from the

23 witness stand. To begin with, in his March 13th, 1998, statement, he

24 talked about coming to Foca with five or six men from Montenegro who were

25 all volunteers. They joined the Bosnian Serb forces together. He

1 concluded by saying, "So from that day on, 6 June, you can treat me as the

2 commander of a special unit but not paramilitary."

3 He went on to talk about where his men were accommodated when not

4 on duty. "If you were asking where my men were when not on duty, it is

5 true that one group of people was accommodated at the address which is

6 mentioned here." He was referring to the indictment.

7 "Q. Can you tell us that address, please?

8 A. It was Osmana Djikica No. 16, that this is where they

9 would come back from the field to change, wash, rest."

10 From these admissions alone, we can see that he considered himself to be

11 their commander from the 6th of June onwards, and that they wanted to be

12 under his command. Further, he referred to them as "his men."

13 Prior to the armed conflict, Kunarac had attained the rank of

14 corporal in the JNA. During the armed conflict, he acted as a commander

15 of a squad or a special military formation of about ten to 15 men in the

16 capacity of a lance corporal. He admitted to having the rank of corporal

17 in his statement of 22 April 1999. Similarly, during the

18 cross-examination of the Prosecution's expert witness, Colonel Nogo,

19 Defence counsel Mr. Prodanovic indicated that Kunarac had the rank of

20 lance corporal.

21 Now, if that's all the evidence you had, we submit that would be

22 evidence that you could weigh and rely upon in determining that Dragoljub

23 Kunarac was a commander at the relevant time, and accordingly, hold him

24 responsible for the actions of his men under 7(3). But that is not all

25 the evidence that you have to consider. There's more, lots more.

1 Before I turn to what is "lots more," I wonder whether this might

2 be a convenient time to break. I can continue, I'm just looking at

3 the ...

4 JUDGE MUMBA: Yes, Mr. Ryneveld, we have confusing clocks,

5 actually. On the screen, it's well over 1300 hours. Let's break for now

6 and continue this afternoon at 1430 hours.

7 --- Luncheon recess taken at 12.58 p.m.

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1 --- On resuming at 2.31 p.m.

2 JUDGE MUMBA: The Prosecution is continuing. Mr. Ryneveld.

3 MR. RYNEVELD: Thank you, Your Honour.

4 Consider next, if you would, the submission that Kunarac had de

5 jure command responsibility by virtue of the Battle Order dated the 7th of

6 July, 1992, which was the subject of considerable testimony.

7 First of all, you will recall that that document was filed as

8 Exhibit 2. Undoubtedly you will recall it well, since it was referred to

9 many times during the course of evidence.

10 From the English version of this document we know that it was

11 signed by Colonel Marko Kovac, who signed in his capacity as Commander of

12 the Foca Tactical Group. It sets out the plan for the attack of the

13 Ustikolina-Gorazde stretch by the Bosnian-Serb forces against the enemy

14 Muslim -- or Ustasha, as he calls them -- forces. He specifies who is to

15 do what, how, when, and where, and against whom. The Battle Order is

16 divided up amongst various command posts with various tasks assigned to

17 each.

18 At page 3 the Order refers to Command Post Ustikolina. Under that

19 heading, various independent detachments are referred to and given

20 assignments. First, the Independent Dragan Nikolic Detachment is

21 instructed to take part in the liberation and mopping up of Ilovaca

22 village. And then, of more significance to these proceedings, reference

23 is made to the Independent Zaga Detachment. It states in no uncertain

24 terms, in our submission, that the Independent Zaga Detachment shall take

25 part in mopping up inhabited areas in the direction of the 5th Battalion's

1 attack.

2 Now, although there's been considerable discussion concerning the

3 presentation of evidence as to what is meant by reference to "mopping up"

4 in this order, it is respectfully submitted that it is clear, and for that

5 matter, apparently undisputed, that this order specifically refers to the

6 accused Kunarac as "Zaga" and that it was his independent detachment that

7 is being given orders to by the commander, Colonel Marko Kovac.

8 What has been the topic of considerable debate is whether the Zaga

9 detachment was truly an independent detachment; whether it was a

10 detachment or a group; and even whether it was intended to be referred to

11 as such at all, or whether it was a mistake by the commanding colonel.

12 Needless to say, in order to fit into General Radinovic's theory

13 that Zaga was not a commander per se, he would have to attempt to persuade

14 you that reference to Zaga's detachment would have to have been in error.

15 I propose to address these contentious areas at this time.

16 First of all, let's consider what Colonel Nogo said in his

17 testimony concerning the Battle Order. Colonel Nogo, at the time of his

18 testimony, held a rank of Chief of Staff of the Centre for Combat Training

19 of the Army of BiH in Glamoc. At the time of the commencement of the

20 armed conflict, he was a captain in the former JNA. He gave evidence

21 concerning a number of matters of interest to the Court, but in particular

22 he was asked questions concerning the Battle Order.

23 According to Nogo, this Battle Order was to take effect at 5.00 on

24 the 9th of July and it had no time limit, meaning that it was valid until

25 the lifting of the siege of Gorazde. Since Gorazde never fell into Serb

1 hands, it was Nogo's view that this Battle Order remained in effect

2 throughout.

3 When he was questioned about the term "independent detachment," he

4 indicated that normally "it is a detachment which is directly subordinated

5 to its commander and carries out its tasks independently or within the

6 units to which it is attached."

7 He further opined that the leader of the Independent Zaga

8 Detachment was receiving instructions directly from Commander Colonel

9 Kovac. He concluded that "the function and command duty of the leader of

10 the Independent Zaga Detachment was very high up."

11 Significantly, we submit, when asked whether it was feasible for a

12 corporal to have such a functional responsibility or to report directly to

13 a Colonel, he replied: "This refers to functional duties, so if he is the

14 commander of an independent detachment, that is his functional duty.

15 There is no mention of rank. A task is assigned to a detachment, and the

16 commander of the detachment is a commander."

17 Still dealing with the battle order, the Defence expert General

18 Radinovic took a different view of it. On cross-examination, he agreed

19 that the battle order, Exhibit 2, "Contained all the elements that a

20 well-defined order is supposed to contain." He also agreed that the order

21 to the Independent Zaga Detachment gave clear orders to that unit. He

22 also agreed that the Independent Zaga Detachment was subordinate to the

23 higher command authority, but then he limited his answer to, "only for

24 that task."

25 He went on to opine that, although the word "detachment" was used,

1 it should only have read as "group." The difference, according to

2 Radinovic, was that this was not a permanent unit, but only a temporary

3 functional one. He would have the Court believe that the unit was not a

4 permanent unit with a permanent commander, but rather was an ad hoc unit,

5 with an ad hoc commander, I presume.

6 The reference to "detachment" in the battle order was in error,

7 according to Radinovic. The reason, of course, that Radinovic would

8 attempt to persuade you of the fact that the battle order was in error was

9 because, as he admitted in cross-examination, "This is of crucial

10 importance for assessing command responsibility."

11 He disagreed with Colonel Nogo's evidence that, "Responsibility is

12 responsibility. It is the same for all. Every rank bears its own

13 responsibility. If someone is the commander of a certain unit, then he is

14 responsible for that unit." The reason given for disagreeing with Colonel

15 Nogo is simply based on the fact that, in Radinovic's opinion, "In order

16 to have someone be the commander of a unit, there first has to be a unit.

17 There was no unit here." With the greatest of respect, just because

18 Radinovic wants you to believe that is so doesn't necessarily make it so.

19 He wants you to believe that there was no Zaga Detachment as a

20 permanent unit because he researched the documentation of the entire

21 Herzegovina Corps and claims he didn't find it in that document;

22 therefore, ipso facto, it didn't exist, says Radinovic.

23 If you are to believe him, you will have to take his word for it

24 because no one else -- not the Prosecution, not the Trial Chamber, nor do

25 I suspect even Defence counsel -- had the opportunity to check the

1 document that Radinovic says did not contain reference to the Zaga

2 Detachment.

3 Nevertheless, still in cross-examination, Radinovic was forced to

4 admit that, on the face of the battle order, there is no distinction

5 between the 1st Independent Dragan Nikolic Detachment in its description

6 from the Independent Zaga Detachment. They are both referred to as

7 detachments. He accepted that the Dragan Nikolic Detachment is a unit,

8 but he does not accept that the same description of the word "detachment"

9 refers to Zaga or Kunarac's unit.

10 The reason, he would have you believe, is because the

11 documentation that only he had the opportunity to examine was silent with

12 respect to the creation of the Independent Zaga Unit. As to that

13 evidence, we have only Mr. Radinovic's word. He claims it was from a

14 strictly confidential document that is kept in the Corps archives. In

15 response to my question why he would not bring a copy of such an important

16 document with him to court, his answer was, "If I were to attach all the

17 documents, I would have had to have an enormous truck, I would have to

18 attach everything that I had studied so far."

19 Whether you choose to accept such an evasive answer to a pertinent

20 question or whether you choose to accept his evidence at all is for you to

21 decide.

22 When deciding whether to accept his evidence, I would ask you to

23 consider whether you found the rest of his evidence to be wholly

24 believable as the unbiased, independent evidence of an expert upon whom

25 you can rely to present a factual and balanced view of circumstances. If

1 you reflect on the balance of his evidence and weigh it carefully, I

2 respectfully submit you will find that General Radinovic was more of an

3 advocate than an unbiased expert. Accordingly, you may wish to attach

4 very little weight to his evidence where it is obvious that he chooses to

5 make certain assumptions, ignore certain facts, make some highly suspect

6 technical distinctions, rely on documents that only he has purportedly

7 seen, and come to the conclusion that the accused was not the commander of

8 a permanent unit and therefore was not subject to the legal consequences

9 of command or superior responsibilities. No, you may instead prefer to

10 look at hard evidence: The battle order itself.

11 With respect, that battle order speaks volumes. It is prima facie

12 evidence that the Independent Zaga Detachment was directly ordered by the

13 commander of the battalion, Colonel Marko Kovac, and that Zaga reported

14 directly to him. There was a chain of command. There is documentary

15 proof that the Independent Zaga Detachment existed, and it was used in the

16 same breath, in the same battle order, in the same command structure, as

17 was the Independent Dragan Nikolic Detachment.

18 In my respectful submission, based on that hard evidence, you

19 should have no difficulty in concluding that Kunarac was a commander of

20 the Independent Zaga Detachment and that his detachment was under the

21 command of Colonel Marko Kovac. As such, Kunarac was a commander

22 responsible under the doctrine of superior responsibility.

23 Still with the battle order, I want to turn next to the reference

24 of "mopping up." Professor Radinovic acknowledges that the Dragan Nikolic

25 Detachment was a permanent unit and part of the tactical group, but

1 maintains that Kunarac's group was set up anew every time he was given a

2 task. I invite you to consider the battle order on its face. Look at the

3 way they're set up. Both are under the heading "Command Post Ustikolina

4 Barracks." Both are set out with bullet-type paragraphs indicating what

5 it is they are to do. Both are instructed to take part, inter alia, in

6 mopping up operations.

7 Now, you will undoubtedly recall the exchanges between Radinovic

8 and myself concerning what "mopping up" means. I won't belabour that

9 point here. Suffice it to say that Radinovic tried to persuade you that

10 mopping up meant the clearing of terrain of mines and explosive devices,

11 but it did not imply collecting civilians. He went on to indicate that

12 Kunarac's group was uniquely qualified for the task of clearing mines and

13 explosive devices.

14 But when asked if the Dragan Nikolic Detachment had any such

15 experts, he agreed that they were not a reconnaissance unit. When I next

16 asked him why they would also be instructed to perform mopping up

17 operations, if that term did not include finding pockets of resistance and

18 arresting the enemy, his response was that all soldiers were expected to

19 deactivate mines or explosive devices.

20 It's for you to decide whether you accept his answer. It is for

21 you to decide whether, on the whole of the evidence, this reference to

22 "mopping up" by both units does not equate the two independent

23 detachments to the same kind of units with similar responsibilities.

24 Radinovic, in his attempt to make a distinction, has, in my respectful

25 submission, made a distinction without a difference and, for that matter,

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1 one that does not agree with the opinion of the Prosecution expert witness

2 Colonel Nogo.

3 I specifically asked Colonel Nogo what the term "mopping up" meant

4 to a soldier in wartime. He said, and I quote, "Mopping up activities

5 imply fighting in built-up areas with remaining pockets of enemy soldiers,

6 taking prisoner those who remain behind, enemy wounded, the population,

7 de-mining, and mopping up, collecting remaining weapons."

8 Ask yourselves whether that definition does not make a lot more

9 sense than Radinovic's restricted view, especially in light of the fact

10 that both the Dragan Nikolic and Zaga Detachments were assigned these

11 tasks in the battle order.

12 Finally on this issue, General Radinovic was forced by a series of

13 questions with specific answers to finally admit that nowhere in the

14 documents that govern the rules and regulations of the military was there

15 a section that says that functional commanders are not responsible for the

16 actions of their subordinates.

17 He had agreed in viva voce evidence, under cross-examination, with

18 the opening paragraph in his report, which read: "Command responsibility

19 is the responsibility of a superior officer for the deeds committed by his

20 subordinates over whom he has and exercises control."

21 JUDGE HUNT: Mr. Ryneveld, have you finished on that particular

22 issue?

23 MR. RYNEVELD: On the particular issue of the Battle Order, Your

24 Honour?

25 JUDGE HUNT: Yes.

1 MR. RYNEVELD: Almost, yes.

2 JUDGE HUNT: I'm sorry. I thought you, when you said "finally,"

3 you were coming to the end of it. But having interrupted you, may I ask

4 you this question?

5 MR. RYNEVELD: Certainly.

6 JUDGE HUNT: You are seeking to equate this particular detachment,

7 or whatever it was, with the Nikolic -- Dragan Nikolic Detachment. What

8 do we know about the way in which it was formed? Was it formed by picking

9 people up every day, as the accused here suggests that his detachment, or

10 whatever it was called, was formed? And what was the responsibility of

11 the commander of that detachment, that other detachment, for the actions

12 of the men overnight? I mean, that's what we're really dealing with in

13 this case. It's a nice argument that you've put about what the Battle

14 Order says, but it doesn't say anything about that in relation to either

15 of the two detachments. So if you want to equate one with the other,

16 we've got to know something about the other one.

17 MR. RYNEVELD: My attempt to equate one to the other relates, as I

18 indicated, on the face of the Battle Order how they are set up. They are

19 both under the command of Colonel Marko Kovac, both of them are set out

20 with specific instructions, and both of them have direct reporting to and

21 from Kovac. The evidence that we have before us, of course, is the way in

22 which the Independent Zaga Unit was operating, and we have to draw

23 inferences from the way in which it operates in order to establish the

24 set-up. Now, we have the opinions of both Nogo and Radinovic. My

25 argument is simply that, when you look at the face of the document, it's

1 clear that these two are equated.

2 JUDGE HUNT: But do we know anything about that other unit other

3 than what you've told us here today? My recollection is no.

4 MR. RYNEVELD: Well, we know, of course, what was in the evidence

5 in terms of who some of the members of that unit were. We know that two

6 of the co-accused, for example, were members of the Dragan Nikolic

7 Detachment. We know that they were involved, for example, in the early

8 April rounding up of prisoners, women, and children, in the areas outside

9 of Foca. We know that there's a Battle Order which instructs them to do

10 things after this particular date in the Battle Order, and we also know

11 that there were a number of members of that unit which appear to have been

12 members that came and went, much like Zaga Kunarac's men came and went.

13 They had their own apartments. They didn't stay in barracks. There are a

14 lot of similarities that can be drawn between these two.

15 But to answer Your Honour directly --

16 JUDGE HUNT: It's that last bit that I'm interested in about them

17 coming and going. Now, if there is some particular evidence about that, I

18 don't want you to look for it now, but I would be very interested to see

19 the references to it so I can look for it in the transcript myself, about

20 the men from the other unit, or detachment or whatever it is, coming and

21 going.

22 MR. RYNEVELD: To answer Your Honour as I can now, and perhaps I

23 might be able to supplement later in response to your question, but the

24 point that I want to make now is that the evidence that, of course, was

25 called by the Prosecution dealt with some -- in some attempted detail with

1 respect to the Independent Zaga Detachment. The Dragan Nikolic Unit, we

2 know that it had certain members.

3 The point I'm trying to make about their comings and goings is not

4 so much their activities on the battlefield and off the battlefield and

5 whether they picked up new members every time that they had a new battle

6 assignment. What I was trying to equate was that we know that the members

7 of the Independent Zaga Unit seemed to have free time that they were able

8 to spend in Osmana Djikica No. 16 and were able to participate in the

9 sexual assault of various women from Partizan and other places.

10 The connection I'm trying to draw is that the members of the

11 Dragan Nikolic Unit -- i.e., Mr. Vukovic and Mr. Kovac -- also seemed to

12 have the opportunity to not be at barracks, that they also had the

13 opportunity to have apartments at the Brena Block, and they also had

14 opportunities to go to various places and collect women to sexually

15 assault them. In other words, their off-hour activities appear to have a

16 certain consistency.

17 But Your Honour's question is, and I take it: Is there any

18 evidence on the transcript before you about whether or not these

19 units -- the Dragan Nikolic Unit was a permanent unit or whether they were

20 able to pick up men? Unless my colleagues are able to tell me, I believe

21 that the transcript is silent on that issue with respect to the Dragan

22 Nikolic Unit itself. But I'm making the other connections, the other

23 similarity comparisons in my argument before you now.

24 JUDGE HUNT: Well, your answer is that my memory is correct.

25 Thank you very much.

1 MR. RYNEVELD: Yes, unless I stand to be corrected by my

2 colleagues. But your recollection is the same as mine on that issue, yes.

3 You asked if I was almost done on that particular topic. I said

4 "almost." Allow me to just quickly sum up on that issue.

5 We say that we have proved de jure command responsibility beyond a

6 reasonable doubt. But that is still not all the evidence before you

7 concerning command responsibility. Much of the evidence, in fact the

8 largest portion of it, relates to circumstances from which the irrefutable

9 inference is to be drawn that Kunarac exercised de facto command authority

10 over his men.

11 The incidents themselves are too numerous to mention exhaustively,

12 and you will undoubtedly be able to recall instances not referred to in my

13 oral submissions or contained in our written Final Trial Brief. I will,

14 however, try to provide a list of some of the instances that readily come

15 to mind.

16 1. From the mouth of the accused himself.

17 a) He admitted that the Battle Order was addressed to him, the

18 Independent Zaga Detachment, and that he carried out the tasks assigned to

19 him therein.

20 b) He admitted that he received instructions which were ordered

21 directly by the commander of the battalion in whose area of responsibility

22 he worked.

23 c) He referred to himself in an earlier interview as "a soldier

24 and commander of one of the sides in the conflict under the command of my

25 side of the conflict in that area."

1 d) He said, and I quote, "I commanded. I issued all the orders

2 in the field. I always had about 15 men in the area."

3 e) He was allowed to select his men and decided how many he

4 needed for each task that he was assigned. You will recall that Colonel

5 Nogo said that this fact indicated to him that Kunarac was trusted by his

6 superiors and was accorded significant authority as a result. You will

7 also undoubtedly recall that these men were picked from a group that was

8 loyal to him. Many of these men accompanied him time and again from

9 assignment to assignment. In fact, according to his evidence, many of

10 these men came with him from Montenegro and signed up as volunteers on the

11 condition that they serve in the same unit as did Kunarac.

12 f) He frequently referred to them as "my men." In particular, in

13 one answer to a question in the 13th of March interview, he said:

14 "If you were asking where my men were when not on duty,

15 it is true that one group of people was accommodated at

16 the address which is mentioned here.

17 Q. Can you tell the address, please?

18 A. It was Ulica Osmana Djikica No. 16. This was where

19 they spent their time off, where they could come back

20 from the field to change, wash, rest."

21 g) He quite clearly issued orders to his men and they obeyed him

22 in instances when they were not "on the battlefield."

23 In one particularly revealing instance of this fact, Kunarac

24 seemed to forget the script of the defence position that he was their

25 commander only when on assignment, but had absolutely no control over them

1 once the assignment out in the field was completed.

2 I am, of course, referring to the evidence at trial about the rape

3 of DB and the gang-rape of Witness 75 in August. He related to the Court

4 of talking to Gaga about his version of how he had been seduced by DB and

5 then later with reference to the girls at Miljevina. He indicated that he

6 "issued an order to Gaga to go over there and bring them to me so that I

7 could protect them."

8 An even more blatant example of Kunarac acting as their superior

9 or commanding officer while they were off duty is the incident concerning

10 the allegations by the female reporter that Kunarac and his men had raped

11 75, Witness 75, and others. In his 13th of March statement concerning

12 that incident, he described the occasion when he confronted his men with

13 the allegations of the two women in their presence. After the denials, he

14 said:

15 "And I then issued a military order for all men to leave, and I

16 only left one at the entrance to the house. I issued him an order to not

17 allow anyone to enter the house."

18 What is even more interesting is that, during his evidence before

19 you, he clearly showed that they were subordinate to him through his

20 actions. Not only did he exercise the authority to confront his men, but

21 he acted the role of the commander who had the right to report and punish

22 his men for their misdeeds. He stated, "Then we, all together, went to

23 the yard of Ulica Osmana Djikica 16. I talked to all of them, and all of

24 them said that they had nothing to do with this. I was angry then, and I

25 said that if anyone did that and implicated me in any way, that I would be

1 capable of killing him, and that I would be looking for punishment for

2 these people. I would make every effort to have them punished. And then

3 I went to Partizan."

4 In fairness, Kunarac was then quick to point out that he didn't go

5 there as a commander of any kind, but only as a man who had been

6 slandered. Whether you accept that in light of his earlier references to

7 issuing military orders is for you to decide. He would have you believe

8 that he intended to report and punish, according to his evidence. If that

9 is true, that is clearly the prerogative of a commander and not of a mere

10 soldier. Also consider that this threat to report and punish was related

11 to conduct off the battlefield.

12 Kunarac admitted in a roundabout way under cross-examination that,

13 despite his professed outrage, he never reported the matter either to the

14 local police or subsequently to the military authorities.

15 But there is still more evidence. Let's consider some of the

16 other indicators that Zaga was the commander of these men, not only while

17 on the battlefield, but also at the various locations where the women and

18 girls were detained, called out, raped, tortured, or robbed and otherwise

19 abused.

20 It was clear from the evidence of many of the victims that Zaga

21 was clearly in charge. They could see that from the way he acted, from

22 the way the men obeyed him, and from the way they acted around him.

23 Kunarac acted as if he were in charge, and his men acted as if he were

24 their superior. There were numerous incidents during the course of

25 testimony where the victims told you that it was clear to them that

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1 Kunarac or Zaga was in charge. But it must be remembered that these

2 incidents didn't occur on the battlefield either.

3 For example, you'll recall the evidence of Witness 191. She told

4 you that Kunarac told her that he was a commander and that, "we knew."

5 She knew he was a commander because she saw it and heard it, and according

6 to her evidence, she was 100 per cent sure. She also told you that Zaga

7 had told her that the girls were a reward for the Serb soldiers who had

8 taken Rogoj.

9 Similarly, Witness 205 told you that the soldiers were Zaga's

10 soldiers because Gica told her so, and that he also told her that Zaga had

11 sent them to take her back to the house where she had been.

12 Witness 105 indicated that, "The soldiers addressed Zaga, and he

13 ordered them to take us back to Partizan." Later in her evidence, she was

14 asked:

15 "Q. When you saw Zaga at that house, would you describe how

16 the other soldiers acted toward him?

17 A. I had a feeling that he was commanding them, I saw that,

18 and they were addressing him."

19 Similarly, Witness 75 told you that the leader of the group of

20 soldiers was Dragoljub Kunarac, Zaga. She said she knew he was the leader

21 of the group because he led everybody. Likewise, Witness 87 testified:

22 "Q. Could you tell if Kunarac was in charge of the other

23 soldiers or what his relationship with them was?

24 A. It was my impression that when Zaga would come to

25 Partizan or when he took us away to the house in Aladza,

1 that he was the one issuing orders, and I felt -- I had

2 the feeling that the other soldiers who were there

3 listened to him."

4 Now, the Defence would have you believe that Zaga led his men only

5 when on military duty on the battlefield. It's quite clear that the

6 perception of these women and girls was formed far away from the

7 battlefield. They formed their impressions and heard the assertions as to

8 whom the commander was at their places of detention, in the houses where

9 they were raped and abused, and while in the company of the soldiers in

10 and around Foca.

11 Witness 61 told you that she based her conclusion that Zaga was in

12 charge of the group by the way, "This man behaved and since he took

13 Witness 183." She told you as well that the other soldiers seemed to be

14 showing respect to him, and she concluded by the way he was holding

15 himself, by his bearing, that this was a "dangerous man."

16 The fact that Zaga was the soldiers' commander was not only

17 limited to the perception or inferences drawn by the girls of the

18 behaviour of Zaga and his men, but also because they were told directly by

19 the soldiers that their commander was coming. For example, you've heard

20 this before, but it bears repeating, Witness DB was asked in her

21 testimony:

22 "Q. Who was the commander?

23 A. Zaga.

24 Q. How did you find that out?

25 A. They made me take a shower. They said, `Take a shower

1 because our commander is coming now.' Thereafter, Zaga

2 made his appearance."

3 Similarly, Witness 191 was told directly by the soldiers that Zaga

4 was his superior. She testified about speaking to a young guard who

5 mentioned Zaga's name. She said, "He said something about Zaga being his

6 superior and that he couldn't help us. He didn't know where they were

7 taking us or why." Witness 191 did not have to rely only on this incident

8 to form her impression. She was able to draw appropriate inferences from

9 the behaviour she witnessed in relation to Zaga and his men.

10 "Q. How did the other soldiers behave towards DP6

11 and Dragoljub Kunarac?

12 A. With great respect. When DP6 entered, I saw that this

13 was a major figure. Also, as far as Zaga was concerned,

14 you could see immediately that he was in charge of these

15 soldiers. You could tell by the behaviour."

16 Remember as well the evidence of Witness 190.

17 JUDGE MUMBA: Yes, Mr. Prodanovic?

18 MR. PRODANOVIC: [Interpretation] Your Honour, as far as I can

19 notice, the person that is being mentioned by my learned colleague is a

20 protected person, that is, DP6, actually. So could he please bear that in

21 mind, and could he please mention that person accordingly as DP6, and

22 could we please have this deleted from the transcript.

23 JUDGE MUMBA: Yes, Mr. Ryneveld, you remember that.

24 MR. RYNEVELD: Yes. I must admit that at the time that this

25 evidence was given, the protective measures with respect to him were not

1 in place, and I think that in much of the transcript I'm quoting

2 directly. I will try to refer to that witness as DP6 from here on in.

3 JUDGE MUMBA: Yes, because once the pseudonyms are granted --

4 MR. RYNEVELD: They're retroactive.

5 JUDGE MUMBA: -- they should be -- yes, they're retroactive.

6 MR. RYNEVELD: But I was quoting, unfortunately, and I suppose I

7 ought to have edited the quote.

8 JUDGE MUMBA: Yes.

9 JUDGE HUNT: Also, Mr. Prodanovic, it's not "deleted," it's only

10 "redacted," which is perhaps a very technical form, but the public

11 document is the only one where it has been deleted from.

12 JUDGE MUMBA: Yes, you may continue, Mr. Ryneveld.

13 MR. RYNEVELD: Thank you, Your Honour.

14 Remember as well the evidence of Witness 190, who was asked:

15 "Q. Could you tell what Zaga's relationship was to those

16 men? You said `Zaga's men.' Could you describe how you

17 saw that?

18 A. Yes. He had the greatest authority there. In a way, he

19 ordered them what to do.

20 Q. When Zaga ordered the soldiers what to do, did they obey

21 him?

22 A. Yes."

23 There can be, in our submission, no doubt that the groups of

24 soldiers known as Zaga's men were under Kunarac's command. Furthermore,

25 we respectfully submit that these same men were involved with Zaga in

1 raping various of the victims called at trial, and as such, under the

2 doctrine of command or superior responsibility, Kunarac is guilty of those

3 rapes as well.

4 Specifically, you will recall the evidence of many witnesses that

5 a group of mostly Serb soldiers from Montenegro resided at a house in the

6 Aladza neighbourhood in Foca at Ulica Osmana Djikica No. 16. Witnesses

7 105 and 87 testified that they were taken to this house, along with other

8 girls, on a number of occasions for the purpose of rape. These women

9 testified that they were raped by the soldiers who were the occupants of

10 the house. Whenever Kunarac was in the house, No. 16, he was the one

11 issuing orders, and the other soldiers would listen to him. From this

12 evidence, it is safe to draw the inference that these men who raped the

13 victims at the house were men under Kunarac's command.

14 The same witness, 87, told you that, on a prior occasion, she,

15 along with Witness 50 and DB, were taken to a house by the bus station

16 where she was raped by two soldiers, including Kunarac. Although we do

17 not know the exact identity of those two soldiers other than Kunarac, you

18 are entitled to draw the inference that the fact that they were in

19 Kunarac's company in those unique circumstances is an indicator that they

20 were his men.

21 More specifically, those inferences which we ask you to draw are

22 bolstered by the fact that you were told by Witness 75 that Kunarac took

23 her and DB to No. 16 on a number of occasions. On one of those occasions,

24 which she recalls being a night between the 18th and 26th of June, 1992,

25 Kunarac came to Partizan together with his deputy Gaga and an individual

1 with a nickname of Bane, who was also a member of the Independent Zaga

2 Detachment. These men took the girls to the house at No. 16. Upon

3 arrival, soldiers were already there and, later, even more soldiers

4 arrived.

5 DB told you of that incident as well. She told you that she was

6 taken into a room and was raped by a soldier nicknamed Jure, following

7 which Gaga raped her as well. Shortly thereafter, she was raped by a

8 young soldier referred to as Gaga's son.

9 Most significant to the evidentiary link between the rapes

10 perpetrated upon the victims by these soldiers was what happened next.

11 You were told by DB that, shortly after having suffered these three rapes

12 in succession, she was told by Gaga to have a shower and now his commander

13 was supposed to come. And as you've already heard, Gaga threatened her

14 that if she didn't satisfy his commander, he would kill her.

15 You already know the two versions of what happened in the room

16 when Kunarac showed up later that evening. Well, one thing is not in

17 question: Kunarac had sexual intercourse with her. He admitted it.

18 Given the circumstances leading up to that event, a couple of things ought

19 be very clear. One, during the course of the events in the bedroom, Gaga

20 came into the room and asked, "Commander, are you satisfied?" Two,

21 therefore, Gaga and the others who had raped her earlier that evening were

22 soldiers under Kunarac's command.

23 Not only that, but while Kunarac and DB were occupied in one

24 bedroom, as you've already heard, 75 was suffering the horrendous

25 experience of being gang-raped by approximately 15 soldiers over about a

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1 three-hour period. Many of these soldiers, it is submitted, were under

2 Kunarac's command. I say this for two reasons. First of all, Kunarac

3 knew what was happening to 75. According to DB, he told her that, "One of

4 the girls would really be in trouble." He must have known what fate was

5 in store for 75 who was in the other room with all those soldiers,

6 including Gaga and other members of Zaga's men who lived in that house.

7 Secondly, Witness 75 told you that she recognised many of these

8 soldiers by name or nickname. She identified Gaga, Jure Radovic, DP8,

9 DP7, and soldiers with the nicknames of Tolja, Bane, Scepo, Puko, and Miga

10 among those who raped her that night.

11 I will not go into the horrible details of what she had to endure

12 that night at this time. You did hear her tell you that, while Bane was

13 still raping her, Kunarac entered the room and told everyone to leave.

14 He, Kunarac, then told Witness 75 to get dressed, and he drove DB and 75

15 back to Partizan.

16 From this incident, apart from the obvious conclusions to be

17 drawn, you also see that Kunarac had the power to put an end to the orgy

18 of rape and sexual assault. When he decided it was time to take the girls

19 back to Partizan, he simply ordered the men who were busy raping that they

20 were to leave. Most significantly, they obeyed him.

21 By this means you have a double indicator of Kunarac's 7(3)

22 responsibility. First, many of the men who were actually identified as

23 raping in that house that night were soldiers under his command. Second,

24 the others who were not identified by name or nickname actually obeyed his

25 orders.

1 We know from his evidence that Kunarac joined the Bosnian Serb

2 forces with Aleksandar Krnojelac, nicknamed Aco, and Ljubisa Markovic. I

3 won't go into how all these people got together, but en route they stopped

4 in Niksic and they were joined by Miroslav Kontic, nicknamed Konta, and

5 DP8. All five continued on to Foca, and you already know that they wanted

6 to join, provided that they could all serve in the same command as

7 Kunarac.

8 Well --

9 JUDGE MUMBA: Yes, Mr. Kolesar?

10 MR. KOLESAR: [Interpretation] Your Honour, my client would like

11 permission to go to the bathroom while my learned colleague continues with

12 his argument.

13 JUDGE MUMBA: It's okay. The accused can leave and can come back

14 when he's ready.

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

16 [The accused Kovac withdrew]

17 MR. RYNEVELD: Would you like me to continue in his absence or

18 wait?

19 JUDGE MUMBA: Yes, because the counsel is here anyway.

20 MR. RYNEVELD: Thank you.

21 JUDGE MUMBA: Yes, and I'm reminded that the accused actually did

22 say that you can continue.

23 MR. RYNEVELD: Very well. Just thought I'd clarify that, thank

24 you.

25 Well, those soldiers that I've just referred to would have been

1 among the group that resided at Ulica Osmana Djikica No. 16 and were part

2 of the group of Zaga's men that were involved in the rapes at that

3 location.

4 The Prosecution submits that, on the evidence before you, it has

5 been established that Kunarac commanded a group of soldiers, including

6 Mika Kovacevic; Uros Radovic, Jure; Miroslav Kontic, Konta; Dragutin

7 Vukovic, Gaga; DP8; Bane; Miga; Miko; and Puko as the core group. We also

8 have evidence from Kunarac himself that his deputy, Gaga, along with DP8,

9 DP7, and Konta Kontic lived at Ulica Osmana Djikica No. 16 while many of

10 the remainder of his unit lived in the adjacent house.

11 What evidence is there that these men under his command actually

12 were involved in the rapes and sexual abuse of the women and girls in the

13 indictment which would trigger 7(3) responsibility? Specifically, first

14 of all, you have evidence that at least two of his men, DP8 and Konta

15 Kontic raped Witness 75 at that location on the night of the 2nd of

16 August, 1992, the night when the mosque was destroyed.

17 Secondly, on another occasion, while DB was having to satisfy

18 Kunarac in the other room, 75 was gang-raped by Jure Radovic, DP8, DP7, as

19 well as by soldiers with the nicknames of Tolja, Bane, Scepo, Puko, and

20 Miga. During this ordeal, Bane threatened to cut off one of her breasts

21 with his knife.

22 Witnesses 190 and 205 both testified about being raped by soldiers

23 at No. 16 the night of the 2nd of August as well. Later that night, DP7

24 took 190 to a house near the bus station where he raped her. Kunarac was

25 present when another soldier was raping 205, and he saw the fact that she

1 was crying, and he noticed her dishevelled state.

2 Jure, the soldier with the ponytail, raped DB in the corridor of

3 No. 16 on the same night, the night of the mosque explosion. Jure also

4 raped 75. It is also highly likely, from the description given by 105,

5 that her ponytailed rapist was Jure as well, although I'm not suggesting

6 for a moment that that issue by itself has been proved beyond a reasonable

7 doubt.

8 [The accused Kovac entered court]

9 MR. RYNEVELD: Without dwelling on details, all of which are

10 contained with footnotes to the transcript in our written Final Brief, it

11 is contended by the Prosecution that many of the men under Zaga Kunarac's

12 command were guilty of rapes and sexual assaults against many of the girls

13 and women who testified at this trial. My colleague Ms. Uertz-Retzlaff

14 has already outlined in some detail the instances of rapes of the various

15 victim witnesses committed by Kunarac and his men.

16 As such, Kunarac is guilty by virtue of 7(3) responsibility, since

17 this conduct occurred either at his instance, with his encouragement, with

18 his knowledge, or with his retroactive concurrence. He did nothing to

19 stop the conduct, did nothing at all to punish or report it. As Colonel

20 Nogo put it during his evidence, a commander who tolerates that type of

21 behaviour and in fact supplies the women to his men is nothing more than a

22 pimp.

23 I propose now to turn to sentencing considerations, if I may.

24 Needless to say, the task of crafting an appropriate sentence for

25 each of these accused in light of all the circumstances is a very

1 difficult one. It can be said that no sentence this Court can possibly

2 devise will adequately deal with the injustices that the victims suffered

3 at the hands of these men. Yet the International Community will expect

4 that not only will justice be done, but that it will also be seen to be

5 done.

6 In order to accomplish that objective, it is the Prosecution's

7 submission that we must focus in our submissions on the principles of

8 sentencing recognised by the Tribunal's jurisprudence.

9 At the outset, it must be understood by all who are privy to these

10 submissions that the only remedy available under the unique mandate of our

11 Statute at present is one of imprisonment. The issue then becomes one of

12 how long should each accused be sentenced to imprisonment for his crimes

13 against the Statute?

14 In deciding that crucial issue, the Chamber ought, in our

15 submission, and in accordance with Tribunal precedent, take into

16 consideration the principles of retribution, deterrence, incapacitation of

17 the dangerous, punishment and rehabilitation.

18 Obviously, other factors to be taken into account by the Court are

19 gravity of the offences, aggravating factors, mitigating circumstances,

20 sentencing practices in the former Yugoslavia, and case precedents found

21 within the jurisprudence of international criminal law.

22 I propose next to briefly highlight some of those considerations,

23 keeping in mind that we have provided a detailed submission in our Final

24 Brief.

25 At the outset, the charges that you are considering in this case

1 of enslavement, torture, rape, and outrages upon personal dignity are

2 extremely serious violations of international humanitarian law.

3 You heard in evidence that the many victim witnesses were

4 individually terrorized and endured inordinate physical and mental

5 suffering. These girls felt helpless and were terrified of what would

6 happen to them. Not only did they suffer the pain, indignity, and terror

7 of being repeatedly violated, but they also didn't know whether they would

8 survive the ordeal. The fear of unknown, the threats of death at the

9 point of a weapon were layered over top of the trauma of relentless rapes

10 and sexual abuse inflicted upon them by countless soldiers.

11 You heard the victims tell you of how they still felt, now some

12 eight years after the offences occurred. One told you that what she

13 suffered at the hands of Kunarac still hurt her soul; another experiences

14 fear to this day every time there is an unexpected knock on her door; yet

15 others talk about recurring nightmares to this day. Not one of them will

16 ever forget. They are but representative samples of the suffering

17 inflicted upon these girls and women.

18 Quite apart from the fact of rape was the manner in which it was

19 committed. Many of the soldiers raped, as we've heard, with unmitigated

20 fury. Many victims were gang-raped. One witness was gang-raped one

21 evening by an estimated 15 soldiers in succession. Still others were

22 raped in the presence of or with the knowledge of their small children or

23 their mothers.

24 Not only did they suffer at the time of the rapes, many still

25 require medication to relieve persistent mental symptoms from their

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1 experiences suffered in 1992. These experiences were so terrible that you

2 heard that one witness would have preferred death; another was still so

3 affected, even once she was safe in a third country, that she attempted

4 suicide.

5 Finally, for many of these young Muslim women and girls, there was

6 both a social and religious stigma attached to having been raped,

7 adversely impacting upon their sense of self-worth, impairing their

8 possibility of marriage, and lowering their status in the community. In

9 all respects, the impact of these crimes continues to haunt and torment

10 the victims and their families.

11 The Prosecution submits that the gravity of these offences ought

12 to be taken into account in the imposition of sentence.

13 I want to turn next to aggravating factors.

14 At the outset, it must be remembered that the victims were

15 unarmed, defenceless, Muslim female civilians. They were further made

16 more vulnerable by being detained under inhumane conditions causing weight

17 loss, starvation, lack of sleep, and enduring filthy living conditions.

18 Many lived in fear of being killed, having either witnessed or heard of

19 others, including family members, being killed by their captors.

20 Secondly, often young girls between the ages of 12 and 16 were

21 singled out to be taken out and raped.

22 Mr. Kunarac:

23 It is submitted that as a commander of other soldiers, Kunarac's

24 conduct is particularly reprehensible. He set the example for his

25 soldiers. He, by his conduct, actively encouraged the commission of war

1 crimes against defenceless female civilians by other soldiers. That is a

2 further aggravating factor.

3 Not only did he take out women and girls from detention

4 facilities, rape them, encourage others to rape them, but he also failed

5 to stop the crimes of his men. He neither punished nor reported their

6 crimes to his superiors, as required by law.

7 Another aggravating factor is the fact that these crimes were not

8 isolated. They went on over a considerable period of time. Kunarac and

9 his men removed women and girls from Partizan on regular occasions between

10 the 13th of July and the 13th of August. He also sexually enslaved

11 witnesses, such as Witness 191 and 186, for a month and a half at the

12 Trnovace house.

13 You will recall that during my opening I provided a chart setting

14 out dates, locations, victims, and perpetrators, as an overview of what

15 you could expect to marry in evidence. We have also appended as Annex A

16 to our Final Closing Brief similar charts for each victim witness, based

17 on the evidence they gave during the trial. You will see that we have

18 listed it by victim with a time line and what was done to them, by whom,

19 and where. What becomes crystal clear by reviewing those charts is the

20 all-encompassing scope of the criminal conduct: the number of occasions,

21 the number of perpetrators, and especially the length of time that the

22 victims had to suffer these ordeals.

23 These crimes were not just motivated by lust. There was a more

24 insidious nature to many of these crimes. Much of the criminal conduct

25 was based on ethnic hatred of Muslims, religious discrimination, and

1 sexism. Kunarac often cursed his victims with ethnic slurs in the course

2 of perpetrating his crimes upon them.

3 Next, consider the multiplicity of his victims. The evidence

4 discloses that Kunarac directly or indirectly participated in the rapes of

5 Witnesses 50, 75, 87, 95, 183, 186, 191, as well as 175, RK, and JG. Not

6 only that, but you will recall that these rapes were not single events.

7 Many of these victims were raped by him repeatedly over a long period of

8 time. Worse yet, 50, 87, 186, 191, and JG were mere children by

9 definition of law in most countries at the time they were raped.

10 Consider also, if you would, that after raping Witness FWS-183 on

11 the banks of the Cehotina River, he threatened to harm her son, cursed

12 her, and then robbed her of her money and jewellery. These too are

13 aggravating factors, in our submission.

14 The next factor stems from Kunarac's evidence before this Trial

15 Chamber in his defence. It is open for you to conclude that he testified

16 untruthfully under solemn declaration. He did so, in our submission, both

17 on the issue of his rape of DB and on his alibi defence. Should the Court

18 conclude that he in fact has fabricated this evidence, it would be an

19 aggravating circumstance in relation to contempt of the Tribunal as well

20 as showing an amazing lack of remorse for his conduct. The only behaviour

21 that could even begin to border on an expression of remorse was his

22 narration of the incident relating to DB, which he nevertheless tended to

23 describe as a form of seduction of him by her. It is for you to decide if

24 he was truly remorseful or whether he tried to make himself look like the

25 victim.

1 Mr. Kovac:

2 In addition to being subject to the common aggravating factors

3 described for Kunarac, Kovac displayed a particular, definite, gratuitous,

4 and unnecessary mean streak in the commission of his offences.

5 For example, he threatened to slit the throats of Witness 87 and

6 75. During the period that he was keeping 75 as his sexual slave, Kovac

7 bragged to her that he had killed her brother. Now, what was that in aid

8 of, if not merely to add further grief and perpetrate gratuitous mental

9 violence against his helpless captive? He also physically beat 75 and 87,

10 forcing them to further humiliate themselves by dancing naked on a table

11 while he pointed a gun at them. You will also recall 75 and 87 telling

12 you about an incident when Kovac threatened to kill them. He forced them

13 to go outside naked, while it was cold, and marched them down to the

14 river. The whole time, the girls told you, they were terrified that they

15 would be killed.

16 It is almost as if he revelled in inflicting these aggravating

17 factors. He apparently delighted in raping 75 and 87 together in the same

18 bed while Swan Lake was playing in the background.

19 He also seemed to love the control factor. He played the perfect

20 host to other Serb soldiers, including the accused Zoran Vukovic, inviting

21 them to his apartment to indulge in being sexually serviced by the

22 enslaved women. He had told 75 that he would beat her or send 12-year-old

23 AB to be raped if she refused.

24 Also, consider the length of time that he enslaved them. He kept

25 87 and AS in his apartment for about four months. AB and 75 were there

1 for about a month before he transferred them like chattels to another

2 soldier. To show his ownership of 87 during her enslavement, he promised

3 Jezic, a fellow soldier, during a night out, that he could rape Witness

4 87.

5 You also heard that Kovac and his accomplice Kostic raped

6 Witnesses AS, 87, 75, and 12-year-old AB almost every night when they were

7 in the Lepa Brena apartment block.

8 Finally, showing his contempt for them as persons but their value

9 to him as chattels, he sold AS and 87 to other soldiers for 500

10 Deutschmarks each. Witness 75 told you that she saw Dragec buying

11 12-year-old AB from Kovac, who laughed when he saw the soldier counting

12 his 200 Deutschmarks.

13 The audacity of his claim to you during the course of his defence

14 that 87 fell in love with him and wanted to marry him is, in our

15 respectful submission, yet another aggravating circumstance, if you do not

16 accept that such an unlikely claim is truthful. Quite the contrary to

17 showing remorse for his behaviour in relation to 87, such an attempted

18 defence perpetuates the denigration of the witness' dignity.

19 Lastly, I turn to Zoran Vukovic.

20 Zoran Vukovic's conduct, according to the evidence you heard,

21 covered the whole scope of the conduct perpetrated against the Muslim

22 civilians in the armed conflict. You heard the evidence of how he

23 participated in the military attack of the civilians who were later

24 detained at Buk Bijela. While there, he, according to FWS-50, orally

25 raped her while he was armed with a weapon. Now, although this incident

1 is not charged as a count per se, it is part of the overall evidence of

2 the attack on the civilian population.

3 He also orally raped FWS-75 at Kovac's apartment, and just before

4 doing so, told her that he had shot and killed her uncle near the Drina

5 River. Now, the fact that her uncle had been shot and killed was not news

6 to her. That she already knew. The fact that it was Vukovic who did it

7 was the disturbing part of this information. It was clearly calculated to

8 bring her more grief and show his control over her life and that of her

9 family members. That information, whether it was true or not, added

10 another parameter to the fact that this very man who claimed to have

11 killed her uncle was now raping her.

12 And that was not the end of his war crimes. He also participated

13 in a group rape in which several women were raped simultaneously by

14 soldiers. Vukovic at that time raped 87, who was a minor.

15 You may also wish to consider his in-court behaviour in imposing

16 sentence. His conduct, as described more fully in our Final Brief, is

17 clearly indicative of the accused's lack of remorse and the way he

18 perceives the solemnity of the proceedings before this Court.

19 I shall turn next to mitigating circumstances.

20 Sadly, the proceedings do not disclose much in the way of

21 legitimate mitigating circumstances in the case of each of the accused.

22 As mentioned earlier, the only thing that remotely approaches the concept

23 of remorse came from Kunarac in his account to you that he now in

24 retrospect understands that DB was not acting of her own free will but

25 acted out of fear by threats made by Gaga to please his commander. But

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1 then he went and spoiled it all with respect to mitigation by claiming

2 that he more or less was seduced by her. He couldn't even bring himself

3 to simply express his remorse at that incident and leave it at that.

4 In complete fairness, I do seem to recall that he commented on the

5 fact that FWS-75 was gang-raped and that he felt guilty about that. This

6 undoubtedly was in relation to what was going on in the adjoining room

7 while he was with DB. It is for you to decide whether to interpret that

8 comment as a statement of remorse, in which case it could be a mitigating

9 factor.

10 With respect to Kovac, it could be said in his favour that he, to

11 the Prosecution's knowledge, does not have a previous criminal record.

12 It may be suggested that all these men are family men with

13 children of their own, and that somehow that should be a mitigating

14 factor. On the contrary, the fact that their victims were often very

15 young girls, some as young as 12 years old, renders the submission that

16 they were "family men" as an aggravating factor. In fairness again,

17 though, it must be said that one of them, Vukovic, but only one of them,

18 apparently relented from carrying out worse sexual atrocities against a

19 young girl because his victim was about the same age as his daughter.

20 Finally, it must be said that Kunarac did voluntarily surrender to

21 the Tribunal authorities. That is true, but it ought not be given undue

22 weight in all of these circumstances.

23 The Prosecution's recommendation to the Trial Chamber regarding

24 sentences to be imposed take into consideration all the factors to which I

25 have just referred. In making these recommendations, and in order to keep

1 these remarks as brief as possible, the Prosecution will be asking for one

2 global sentence with respect to each accused. I do not propose to make a

3 recommendation for a specific sentence for each count.

4 In conclusion, the Prosecution respectfully submits that the

5 following sentences be handed down with respect to each accused in this

6 case:

7 As for the accused Kunarac, the Prosecution respectfully requests

8 that he be sentenced in total to no less than 35 years' imprisonment. In

9 making this recommendation, the Prosecution draws to your attention these

10 following particularly aggravating factors: the number of victims that he

11 raped; the comments that he made to several of the victims during the

12 course of raping them; and the fact that he was a commander and both made

13 women available to the men under his command for purposes of rape and set

14 an example for the men under his command that raping these women was to be

15 encouraged.

16 Kovac: With respect to the accused Kovac, the Prosecution

17 respectfully submits that he should be imprisoned in total for a period of

18 no less than 30 years. In making this recommendation, the Prosecution

19 notes the following egregious factors in aggravation: the fact that the

20 accused Kovac enslaved FWS-87 and AS for a lengthy period of time, during

21 which they were subjected to both sexual assaults and other forms of cruel

22 and degrading treatment; the fact that AB was only 12 years old; that the

23 accused Kovac viewed these women as property, eventually selling them for

24 500 Deutschmarks each; and that he forced the victims to walk down the

25 street naked, causing the victims intense humiliation.

1 Concerning the accused Vukovic, the Prosecution argues that he

2 should be imprisoned for a total period of no less than 15 years based on

3 the following aggravating factors: the circumstances surrounding the rape

4 of FWS-50, the 16-year-old school girl, in which the accused Vukovic

5 threatened her mother, Witness 51, and enlisted her assistance in finding

6 50, who was hiding in Partizan; and the rape of Witness 87, a 15-year-old

7 school girl at the time.

8 On behalf of the Prosecution, unless the Trial Chamber has any

9 questions, those are our submissions. Thank you.

10 JUDGE HUNT: Mr. Ryneveld, those recommendations that you have put

11 forward, that you have just put forward for the length of the sentences

12 imposed, have you got any references to the -- any particular cases

13 dealing with this under international law anywhere else that would support

14 those sentences?

15 I have not looked through the volume of authorities, but you don't

16 refer to them in your written submissions, and you haven't in your oral

17 submissions.

18 MR. RYNEVELD: Yes, Your Honour. We have made reference in our

19 Final Trial Brief, and as I indicated, this was an attempt at brevity, and

20 we have made reference to other authorities in our submission in terms of

21 what we are submitting is the appropriate penalty in these circumstances.

22 JUDGE HUNT: When you say that you have referred to them, you say

23 in the written Final Brief you've got references to other cases dealing

24 with sentences of that sort of length, have you?

25 MR. RYNEVELD: I'm not suggesting for a moment, Your Honour, that

1 there are other sentences in terms of case precedence that say 35 or 30 or

2 15. What we have attempted to do is to analyse the other jurisprudence

3 from the Tribunal, look at the kinds of sentences given in other cases,

4 but there are not -- this is not -- a rape case of this nature is not one

5 that you can say is necessarily -- there are a lot of precedents for

6 that. There is, of course, the Furundzija decision. There is, of course,

7 other cases where rape has been part of another, another Article, but --

8 JUDGE HUNT: I did say somewhere else other than this Tribunal.

9 MR. RYNEVELD: We have, of course, made reference to the cases

10 that my co-counsel Ms. Kuo referred, to the Batavia cases. Those have

11 been cited and referred to, and there were, I believe, about seven or nine

12 of those cases. Needless to say, the sentences --

13 JUDGE HUNT: I'll no doubt find them in the second volume of your

14 submissions. I haven't found them in the first volume; that's what is

15 concerning me at the moment. But if you say they're there, then we'll

16 leave it and I'll go looking for them later.

17 MR. RYNEVELD: I cannot say that there were other precedent cases

18 right on point because, of course, this is -- there fortunately aren't

19 that many other cases exactly on point as before you here. But we have

20 made reference to the Japanese Batavia cases, we have made reference to

21 other cases within the jurisprudence of this Tribunal and of the ICTR; but

22 I cannot say that we have had a host of other cases with identical

23 circumstances to suggest to you that there were precedents for what we are

24 asking. This is perhaps a case that will be setting the hallmarks.

25 Thank you.

1 JUDGE MUMBA: Yes, thank you very much from the Prosecution.

2 We now turn to the Defence. We can start; we have a good number

3 of minutes before the end of the proceedings today.

4 Yes, Mr. Prodanovic.

5 [Defence Closing Arguments]

6 MR. PRODANOVIC: [Interpretation] Thank you, Your Honour.

7 I shall start my closing argument with the joint positions of the

8 Defence of the accused Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic

9 with regard to general issues.

10 The mutual relationship of the accused:

11 During the proceedings, the Defence of the accused Dragoljub

12 Kunarac, Radomir Kovac, and Zoran Vukovic acted together in relation to

13 all questions that were related to the Prosecution case, or Defence,

14 before the Trial Chamber.

15 The Defence counsel of the accused therefore at the very outset

16 wish to point out that the Defence stands united, irrespective of the fact

17 that the accused, Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic, in

18 the amended indictment as was presented in the introductory part of the

19 closing arguments in writing, were practically indicted by a single

20 indictment with relation to certain incidents within the same time period,

21 although one has nothing to do with the other.

22 The Defence counsel wish to point out that the accused Dragoljub

23 Kunarac, Radomir Kovac, and Zoran Vukovic, during these events relevant

24 for the indictment, did not visit each other, did not socialise, and knew

25 each other only by sight. So they did not act in concert or together with

1 single intent.

2 The Defence of the accused Kunarac, Kovac, and Vukovic therefore

3 point out that the Prosecutor did not prove the existence of any kind of

4 linkage in actions taken by the accused Kunarac, Kovac, and Vukovic, so

5 individual incidents as described in the amended indictment which was

6 presented to the Court on the 8th of December, 1999, in relation to

7 Dragoljub Kunarac and Radomir Kovac, and on the 3rd of March, 2000, in

8 relation to Zoran Vukovic, have to be established independently for each

9 and every one of the accused in relation to the other two accused.

10 The lack of single intent is of relevance for the later

11 application of legal definition, which will be mentioned in terms of the

12 individual analyses of evidence presented for every one of the accused in

13 parts of the closing arguments that will be submitted separately for each

14 and every one of the accused.

15 The joint position of the Defence of all three accused shall

16 pertain to basic information provided in the indictment, also the

17 legal -- or rather, the factual description of the nature of individual

18 detention centres, the status of civilians of Muslim nationality, and

19 incidents just before the outbreak of the conflict and after the outbreak

20 of the conflict; whereas in relation to actions that are described as the

21 commission of crimes for which each and every one of the accused is being

22 charged and legal definitions, this will be dealt with in separate parts

23 of the closing arguments.

24 In order to be able to look at the indictment and the facts

25 related to the outbreak of the conflict between Serbs and Muslims in the

1 territory of Foca, and in order to be able to draw legal conclusions on

2 the existence of elements of crimes that the accused Kunarac, Kovac, and

3 Vukovic are being charged with, one must also present a brief survey of

4 historical facts and facts that stem from the economic and social

5 conditions that prevailed in the territory of Foca just before the

6 outbreak of the conflict. Without adequate knowledge of these facts, we

7 would be in a situation to present legal conclusions that would have

8 certain shortcomings, and this will certainly be discussed in the parts of

9 the Defence which shall deal with the application of substantive law.

10 The Defence has in writing, in its written Final Brief, analysed

11 in detail a brief survey of historical facts that include the composition

12 and movements of the population therein and also the activities of secret

13 organisations of the Muslims in the territory of the former Yugoslavia.

14 So the Defence will not speak about this in its closing arguments; we

15 shall only mention that the idea of the creation of a Muslim state in this

16 area is derived from that, and that this idea is the underlying idea in

17 the later conflicts.

18 The Defence also shall not dwell longer on the establishment of

19 political parties in its closing arguments because that has also been

20 dealt with in the Final Brief. However, we shall underline that when the

21 SDA, SDS, and HDZ were first established, that is, when more profound

22 ethnic divisions came into being wherein the leadership of the SDA aspired

23 for the creation of a Muslim state, the leadership of the SDS aspired for

24 the survival of Yugoslavia, whereas the leadership of the HDZ wished to

25 have part of Bosnia annexed to Croatia --

1 THE INTERPRETER: Could counsel please slow down.

2 JUDGE MUMBA: Mr. Prodanovic, can you slow down. And we also --

3 the submissions are directed to the events before the armed conflict, at

4 least, this part that you're discussing now. Can you be very, very brief,

5 because, really, it doesn't matter who started the war and the reasons.

6 We already agreed that there was an armed conflict.

7 MR. PRODANOVIC: [Interpretation] Yes, Your Honour. I shall be

8 very brief.

9 Therefore, this was a conflict between local ethnic groups which

10 occurred spontaneously and which take place in order to see who will

11 prevail.

12 In its Final Brief, the Defence presented in detail its view of

13 questions that the Prosecutor dealt with in the indictments as general

14 allegations, and presented its positions that the Serb forces did not

15 conquer Foca, it was that they prevailed in Foca.

16 In this case, this cannot really be discussed, and this has

17 nothing to do with the accused. No detention centres existed. No cruel

18 conditions prevailed, nor was there any physical or mental torture or

19 starvation, because conditions in Foca during the armed conflict were the

20 same for all, which was confirmed by witnesses of the Prosecution and

21 witnesses of the Defence.

22 There were no arrests of civilians nor beatings as is claimed in

23 the allegations in the indictment. The Defence not only believes that

24 this was not proven, but we don't think that this was even discussed

25 properly before this Chamber. The Defence also holds the position that

1 such a concept of the indictment practically leads to a dilemma as to

2 whether an opportunity was given to the Defence to have all facts

3 established.

4 The Prosecutor proceeds from general assumptions and puts every

5 one of the accused in that context; whereas, the Defence believes that the

6 proceedings have shown that such positions are unfounded, especially in

7 relation to the accused.

8 The allegations made by the Prosecutor that there were prisons,

9 brothels, paramilitary formations, are based on hearsay, on a hearsay

10 principle, which is not a principle upon which an indictment can be based,

11 especially when serious charges are concerned.

12 In addition to the general allegations contained in the

13 indictment, the Prosecutor, in relation to the accused Kunarac and Kovac,

14 presents the general allegations contained in the indictment in which

15 certain matters are unsystematically repeated. And that is what the

16 Defence analysed fully in its Final Brief, and we shall underline that

17 there were no plans, nor was there a realisation of an all-out massive,

18 systematic attack against the Muslim civilian population.

19 We wish to point out that, in the territory of the municipality of

20 Kalinovik, there was no conflict and that the conflict took place on the

21 line of delineation between Kalinovik and Trnovo; that the accused had

22 nothing to do with the incidents in Gacko; and that it was not argued

23 before this Chamber at all what happened in the territory of other

24 municipalities, and that therefore, the Prosecutor did not prove neither

25 the systematic nor the all-embracing nature of such incidents, nor can the

1 arrival of civilians in the territory of the municipality of Kalinovik be

2 related to the accused.

3 We wish to point out that neither during the armed conflict in the

4 territory of the municipality of Foca, there was no attack on the civilian

5 population during the conflict. There was a division of territory, both

6 sides wishing to prevail, and civilians were leaving such territories,

7 which in the sense of war doctrine constitutes a legitimate act, and this

8 cannot constitute enslavement, nor can it be considered to be an attack

9 against the civilian population.

10 Perhaps this would be a good point to interrupt.

11 JUDGE MUMBA: Thank you. It's 1600 hours by the courtroom clock.

12 We shall continue tomorrow at 0930 hours.

13 --- Whereupon the hearing adjourned at 4:00 p.m., to

14 be reconvened on Tuesday, the 21st day of November, 2000,

15 at 9:30 a.m.

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