Tribunal Criminal Tribunal for the Former Yugoslavia

Page 20884

 1                           Wednesday, 19 March 2014

 2                           [Rule 98 bis Hearing]

 3                           [Open session]

 4                           [The accused entered court]

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

 6             JUDGE ORIE:  Good morning to everyone.

 7             Madam Registrar, would you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.

 9             This is the case IT-09-92-T, The Prosecutor versus Ratko Mladic.

10             JUDGE ORIE:  Thank you, Madam Registrar.

11             Mr. Ivetic, if you are ready.

12             MR. IVETIC:  I am, Your Honour.

13             JUDGE ORIE:  Then please proceed.  And I think we -- the

14     Scheduling Order said that you have one hour for --

15             MR. IVETIC:  That's correct, Your Honour.

16             JUDGE ORIE:  -- rebuttal evidence, argument, I should say.

17             MR. IVETIC:  Thank you.  Good morning, Your Honours.  The Defence

18     and General Mladic reiterate that General Mladic never intended nor

19     ordered any crimes and acted honourably at all times to defend his people

20     and his country amidst a time of conflict.  We emphasise that our

21     thoughts go out to all those aggrieved.  It is in this light,

22     Your Honours, we would like to start by responding to the Prosecution's

23     use of the testimony given by RM070.

24             The Prosecution has not provided evidence during their submission

25     demonstrating that General Mladic knew about these wrong-doings or that

Page 20885

 1     they were reported to him.  The Defence points out that it has been

 2     proven that where General Mladic had knowledge of crimes by others, he

 3     always issued orders seeking to have perpetrators disarmed, arrested,

 4     investigated, and prosecuted.  One striking example addressed in both the

 5     submission of the Prosecution and the Defence was in relation to the

 6     Arkan's Tigers in Sanski Most and the order to remove paramilitaries.

 7     There is no indication that General Mladic would act differently in

 8     relation to these wrong-doings.

 9             The Defence notes that the Prosecution cannot rely on RM070's

10     opinion testimony as being indicative of genocidal intent.  RM070

11     themselves highlights not all Serbs are the same.  At transcript

12     page 17652, the witness quotes:

13             "Because if there were -- there hadn't been for some Serb, she

14     wouldn't be sitting here today.  Because there are some good people among

15     the Serbs."

16             At transcript page 20805, the Prosecution invites the Chamber to

17     consider the six strategic objectives as indications of a common plan

18     encompassing genocidal intent.  The Defence would like to stress that our

19     position is the same as that of the Stakic, Krajisnik, and

20     Sikirica Chambers, which found no evidence this specific general

21     political doctrine carried any genocidal intent.  Furthermore,

22     Your Honours, the Prosecution's own expert, Robert Donia, acknowledged

23     that General Mladic issued harsh warnings and expressed concern in

24     relation to the creation of the six strategic objectives.

25             At this stage, the Defence would like to express its awareness of

Page 20886

 1     the Chamber's perception communicated on 19 July 2012 that there "might

 2     not be a factual basis for the basis of the knowledge of the intent" of

 3     Mladic.

 4             I would now like to turn briefly to P431, the 16th Assembly

 5     transcript.  At page 33 in e-court, page 37 of the hard copy,

 6     General Mladic is quoted as saying:

 7             "I would like to make one suggestion here that we adopt such a

 8     wisdom that we are against the war but that we will fight if attacked,

 9     and we do not want a war against the Muslims as a people, or against the

10     Croats as a people, but against those who steered and pitted these

11     peoples against us."

12             Further, at page 35 in e-court, page 39 in hard copy,

13     General Mladic is quoted as saying:

14             "But that does not mean the Muslims have to be expelled or

15     drowned.  The minister would, it's a pity that we did not record it

16     yesterday.  To keep a long story short, as I said, they all gathered at

17     my place, had a drink there, those from my village and from the

18     neighbouring village, both Serbs and Muslims, all must take care of one

19     another."

20             These fragments fly in the face of genocidal intent.  Further, at

21     transcript page 20813, the Prosecution itself refers to P431, page 49,

22     which the Defence has discovered is in error as the text can be found at

23     page 37 in the hard copy, page 33 in e-court, and appears just before the

24     text -- the first text that I just read, and the Prosecution implies that

25     shifting the people from here to there is an organised campaign of ethnic

Page 20887

 1     cleansing, which is an interpretation completely out of context and

 2     irreconcilable with these remaining words which we have now drawn the

 3     Chamber's attention to.  Yesterday the Prosecution submitted other

 4     personal statements and utterances of the accused as proof supporting

 5     counts in the indictment.  We would recall the principle in dubio pro reo

 6     which is applied to these and also urge the Chamber to consider that

 7     these have been taken out of context as well by the Prosecution.

 8             Additionally, Your Honours, the Prosecution improperly made

 9     reference to events in 1991 and events relating to Croatia to attempt to

10     establish the intent of General Mladic and to allege the commission of

11     crimes attributable to him.  This is at transcript pages 20807 through

12     20808.

13             The Defence reiterates that such time-period and subject matter

14     is beyond the scope of the indictment and has been repeatedly objected to

15     by the Defence.  If the Prosecution has not been able to establish

16     criminal liability for the events occurring during the indictment, it is

17     not permissible for it to expand the indictment period to include 1991

18     and Croatia, without going through the steps necessary to give

19     appropriate notice to the accused and to seek to amend the indictment.

20             At the outset of their response, the Prosecution, at 20803 of the

21     transcript, referred to police figures being members of the JCE.

22     Your Honours, I remind you of those arguments advanced by the Defence on

23     Monday relying upon the Prosecution expert, Mr. Theunens, and the

24     Prosecution's evidence demonstrating that police were not subordinated to

25     General Mladic and that he exerted all possibilities within his authority

Page 20888

 1     to apprise the police minister and Karadzic about the actions of the

 2     police and paramilitary units operating within the auspices of the

 3     police.  This is again P3095, P5133, and P5065, among others.

 4             Moving along, Your Honours, at transcript page 20817 and 20818,

 5     the Prosecution raised the notion that destruction of non-Serb cultural

 6     sites constituted evidence of genocidal intent and a genocidal campaign.

 7     The Prosecution, however, did not include this in the indictment for

 8     genocide.  If the Prosecution tries to indicate that the Chamber ought to

 9     infer genocidal intent from the circumstances surrounding the alleged

10     JCE, they surely cannot rely on unscheduled incidents of destruction.

11             Your Honours, the Defence has with great detail outlined the

12     evidence as to religious sites and their alleged destruction, and,

13     similarly, our concerns about the quality of the same, which we regard as

14     incapable of belief.  I will not say any more about this, except to point

15     out that the Prosecution did not offer any new or more detailed evidence

16     on this topic to bolster the paucity of evidence that we brought to the

17     attention of Your Honours during our submission on Monday.

18             Further, at transcript page 20803, the Prosecution boldly asserts

19     that the taking of UN personnel, which the Defence did not raise in our

20     98 bis submissions, is indicative of the common purpose behind the JCE

21     constituting genocidal intent.  Additionally, the taking of hostages is

22     not properly pled in Counts 1 and 2 of the indictment.

23             As both the Prosecution and Defence have raised in our 98 bis

24     submissions, it is well established case law before the Tribunal to apply

25     JCE to specific-intent crimes.  However, in light of the lack of

Page 20889

 1     specificity in this indictment, this could have far-reaching and

 2     undesirable consequences to fairness to the accused and the development

 3     of future jurisprudence.

 4             In the briefest way, the Defence will now address the discussion

 5     of Directives 7 and 7.1 by the Prosecution which can be found at

 6     transcript page 20835.  The assertion was made that Directive 7.1 adopted

 7     the entirety of Directive 7.  This is contrary to the plain meaning of

 8     the language contained in Directive 7.1 which was issued by

 9     General Mladic.  Indeed, looking at P1470, page 2 in English, just above

10     the tasking of the VRS, the only part of Directive 7 which is taken over

11     is identified as additional details on the intentions and possibilities

12     of enemy forces which are said to be contained in Directive 7 and daily

13     intelligence reports of the Main Staff.  For the tasking of the VRS in

14     Directive 7.1, it is said merely:  "On the basis of Directive 7.1," and

15     then the text proceeds to detail the tasking without reference to any of

16     the controversial provisions of making life unbearable for civilians that

17     are contained in Directive 7.

18             Therefore, Your Honours, the Prosecution argument as to this

19     directive is factually misplaced.  P1465, the Krivaja 95 plan, does not

20     contain the language from Directive 7 directing to make life unbearable

21     for civilians, and in fact, the text of the same contains no illegal

22     orders.  P1084, cited by the Prosecution, is merely a map that

23     General Mladic signed after the completion of Krivaja 95 and the map also

24     does not contain any illegal orders to attack civilians.  There thus is

25     not available under this evidence any suggestion that the Krivaja

Page 20890

 1     operation and Directive 7.1 advocated any criminal intent or purpose.

 2     The position of the Prosecution taken yesterday as to the Krivaja

 3     operation is contradictory to their opening statements at transcript

 4     page 486 and the conclusions of their own military excerpt,

 5     Richard Butler.

 6             Your Honours, I will move on to some other outstanding points.

 7     In relation to our arguments about the liability of third party actors,

 8     the Prosecution at transcript page 20824 and onwards focussed primarily

 9     on Prijedor and largely failed to provide counter-arguments or citations

10     to evidence on the record for the remaining municipalities and locations

11     that were the subject of our original submission.

12             The Prosecution spent considerable time on the command and

13     control of General Mladic as to JNA infrastructure and equipment that

14     became the VRS.  The Defence, for purposes of Rule 98 bis, did not raise

15     command and control over the VRS as an issue for a no case to answer

16     submission.  Rather, we were very succinct and clear that the arguments

17     as to command and effective control that we were raising related to

18     non-VRS actors, including the police, paramilitaries, Arkan's Tigers, and

19     Skorpions.  Thus, the Prosecution's arguments are misconceived and do not

20     rebut our submissions on this topic.

21             The Prosecution did briefly address the Skorpions but

22     misapprehended the Defence submission.

23             At this time, I would ask that we go into private session so I

24     may discuss the testimony of a protected witness.

25             JUDGE ORIE:  We move into private session.


Page 20891

 1                           [Private session]

 2   (redacted)

 3   (redacted)

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 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21                           [Open session]

22             THE REGISTRAR:  We're in open session, Your Honours.

23             JUDGE ORIE:  Thank you, Madam Registrar.

24             Mr. Ivetic, could you at any point in time further briefly

25     elaborate on what it is in the position of the Prosecution taken


Page 20892

 1     yesterday that is contradicting what is found in transcript page 486,

 2     that's the opening statement.

 3             If you could do so, not necessarily immediately but to -- yes.

 4             MR. IVETIC:  Yes, Your Honours.  I could do so immediately.  It

 5     might be easiest.  In the opening statement, Your Honour, the Prosecution

 6     indicated that the military operation directed against the 28th division

 7     in Srebrenica enclave to stop the raids of the Armija BiH was not an

 8     illegitimate military action, saying it was a legitimate military action.

 9     Their inference yesterday that the Krivaja plan for that operation

10     demonstrated criminal intent is therefore, in the position of the

11     Defence, contradictory to their concession in opening statements that the

12     military operation was not illegitimate.  And that is the submission that

13     I intended with that terminology.

14             JUDGE ORIE:  I read on page 486 what the objective was but then

15     the Prosecution added that Krivaja 95 had another objective, that was

16     anything but legitimate.  So, therefore, I'm -- I'm trying to understand

17     exactly where -- how this contradicts where the Prosecution has stated

18     that it was not only a military action but it was to attack Muslim

19     civilian and UN observation posts or OPs in order to drive the Muslim

20     population of the enclave into the small urban area of the enclave and

21     create a humanitarian disaster.  I'm just wondering whether this, I would

22     say, this twofold objective is contradicted by what was said yesterday.

23             MR. IVETIC:  It is contradicted by what is contained in the

24     Krivaja 95 order which I had --

25             JUDGE ORIE:  You are pointing at the contradiction between what

Page 20893

 1     the Prosecution said on page 486 compared to what they said yesterday.

 2     That is what I'm trying to understand reading page 486 and having

 3     listened to what the Prosecution said yesterday.

 4             MR. IVETIC:  It was my recollection that they had said that the

 5     operation itself was not illegitimate and what happened later that they

 6     claimed it was part of the second -- additional objective, I guess they

 7     called it, was illegitimate.  And my point is that the additional

 8     objective is not to be found in the text of the Directive 7.1 by

 9     General Mladic or the Krivaja 95 attack order, or the map as signed by

10     General Mladic after the operation.

11             JUDGE ORIE:  So your objection is mainly that the position taken

12     by the Prosecution is not supported by evidence, which is, of course, not

13     the same as a contradiction between what they said in the opening

14     statement and what they said yesterday.

15             MR. IVETIC:  Yes, Your Honour.  You have said it much more

16     succinctly than I did.

17             JUDGE ORIE:  Thank you.  Please proceed.

18             MR. IVETIC:  Nothing in the Prosecution's submissions has

19     rebutted the Defence submissions as to the Scorpions.

20             The Prosecution, at transcript page 20853, has raised Kravica

21     warehouse and has given a description of events at that location that are

22     not supported by the evidence on the record.  Rather, the Chamber should

23     look to the evidence of RM374, a protected witness, who testified that

24     there was a bus taking Muslims to Kravica warehouse, guarded by policemen

25     on the bus.  The Muslims on the bus overpowered the policemen and started


Page 20894

 1     exchanging fire from within the bus and with other policemen outside the

 2     bus.  This is how one policeman was killed and another injured.  This is

 3     at transcript page 12755 through 12779.

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13             JUDGE ORIE:  We move into private session.

14                           [Private session]

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24                           [Open session]

25             THE REGISTRAR:  We're in open session, Your Honours.


Page 20895

 1             JUDGE ORIE:  Thank you, Madam Registrar.

 2             MR. IVETIC:  Thank you, Your Honours, Madam Registrar.

 3             At transcript page 20850 to 20851, the Prosecution has challenged

 4     only the qualification of Kingori as a principal witness for the genocide

 5     in Srebrenica [sic].  While demonstrating their position that he is

 6     merely very important for their case, the Prosecution fails at all to

 7     address the conflicts between his testimony and several UNPROFOR officers

 8     that we believe renders Kingori's testimony incapable of brief.

 9             In relation to Skrljevita, at transcript page 20831 and onwards,

10     the Prosecution asserts that the evidence demonstrated VRS officers

11     intervened to have the perpetrators of the crime released from custody.

12     The evidence cited does not support this proposition.  P2371 is dated

13     10 September 1993 and is written on letterhead of the SDS Municipal Board

14     of Sanski Most, not on behalf of any unit or formation of the VRS.  This

15     is a letter that is signed by the president of the SDS Municipal Board of

16     Sanski Most and also by a captain who is a battalion commander in the

17     VRS.  Given the letterhead, it is clear that this is given in a personal

18     capacity and is not an official VRS document.  Further, the content of

19     the letter amounts only to character reference and mitigating facts;

20     whereas, the letter seeks the military court to "take this into account

21     and pass fair judgement on him."

22             The Prosecution's case has collapsed.  They can try to now expand

23     the scope of the indictment.

24             JUDGE MOLOTO:  May I interrupt you a little bit.

25             Mr. IVETIC:  Yes.

Page 20896

 1             JUDGE MOLOTO:  Did you say "pass fear" or "pass fair"?

 2             MR. IVETIC:  Pass fair judgement, Your Honours.  Fair, f-a-i-r.

 3             JUDGE MOLOTO:  Oh, f-a-i-r.  Thank you.

 4             MR. IVETIC:  Yes.

 5             The Prosecution's case has collapsed.  They can try to now expand

 6     the scope of the indictment to try and demonstrate intent and they can

 7     try to expand to have hostage-taking and destruction of religious sites

 8     bolster their case for concerted action between alleged JCE members.

 9     However, they have failed to explain how there can be concerted action

10     between alleged JCE members, given the clear evidence on record of

11     irreconcilable differences between General Mladic and SDS members like

12     Karadzic, including the evidence that President Karadzic tried to remove

13     General Mladic from his position and issued orders directly to VRS units

14     bypassing General Mladic.  The Defence recalls Exhibit P501 where

15     General Mladic is trying to find out who has instructed the

16     Sarajevo Corps to use aerial bombs against Sarajevo which the Main Staff

17     did not order.  Further the Prosecution has failed to demonstrate how

18     there can be a meeting of the minds when Karadzic and Mladic differed and

19     clashed as to their views on the use of Arkan and other paramilitary

20     groups.  In short, the Prosecution theory of the case only works if one

21     ignores half of the evidence, and this Chamber must take the evidence as

22     a whole.

23             In our Monday submission, the Defence briefly addressed

24     Exhibits P1547, P2141, P2142, D410, and P816 which dealt with prisoner

25     exchanges and conditions.  The Prosecution has not presented evidence

Page 20897

 1     contrary to this.

 2             The Defence implores the Chamber to acknowledge that exceptions

 3     to the count-based approach are essential to uphold the object and

 4     purpose of Rule 98 bis.  Having a presumption against acquitting the

 5     accused of individual charges within a count is one thing, but to remove

 6     any opportunity for this to occur goes beyond what is necessary to

 7     prevent the danger of a piece-meal application of Rule 98 bis.  A blanket

 8     approach by the Chamber offends the fundamental aspect of the Rule's

 9     purpose:  To give effect to ensure the accused is tried expeditiously and

10     to uphold the requirements of due process, and allows the Prosecution to

11     exploit the count-based approach to disguise the evidentiary defects in

12     their individual allegations.  To adjudge and declare that the

13     count-based approach should be applied to the present cases in accordance

14     with the jurisprudence is to confirm that 98 bis is nothing more than a

15     paper tiger, devoid of any practical application for the Defence by

16     virtue of the fact that Trial Chambers apply an overly restrictive

17     interpretation of it.

18             Before this Tribunal, the Tadic Appeals Chamber stipulated that

19     it is only appropriate to apply the notion of "common purpose" in

20     relation to a joint criminal enterprise where the accused shared the

21     intention to take part in a JCE and to further the criminal purpose of

22     this enterprise.  In addition, the accused must foresee the possible

23     commission by other members of the group of offences that do not

24     constitute the object of the common criminal purpose; paragraph 220 of

25     the Tadic appeals judgement.

Page 20898

 1             Your Honours, the standard of Rule 98 bis is to determine if the

 2     Defence has a case to answer.  At transcript page 20812, the Prosecution

 3     claims a "brutally efficient genocidal campaign" occurred.  No evidence

 4     has been presented to substantiate a general factual finding of genocide.

 5     Their own expert, Ewa Tabeau, presented evidence that emphasised there

 6     were only small differences in losses among the three warring ethnic

 7     groups.

 8             We strongly believe that there is no case to answer as to

 9     Counts 1 and 2 because the Prosecution has failed to demonstrate why --

10     has failed to demonstrate by evidence capable of belief that

11     General Mladic wilfully entered the JCE with a common purpose with

12     foreseeability that others may resort to genocide to further that

13     purpose.  Lastly, we would invite the Chamber to consider the

14     far-reaching consequences of including this many actors as sharing in the

15     JCE's common purpose in light of the lack of specificity in the

16     indictment.

17             And with that, Your Honours, I again thank you on behalf of my

18     client and my entire team for listening to our submissions.  We have now

19     completed our portion of the same.

20             JUDGE ORIE:  Thank you, Mr. Ivetic.  Judge Moloto has a question.

21             JUDGE MOLOTO:  Mr. Ivetic, thank you so much.  In light of the

22     Defence's objection to the Prosecution referring to a period prior to the

23     12th of May, 1992, how does the Defence submit that Trial Chamber should

24     interpret paragraph 5 of the fourth amended indictment?

25             MR. IVETIC:  Your Honours, if I can get access to the same.

Page 20899

 1             JUDGE MOLOTO:  I can read it to you.

 2             MR. IVETIC:  If you could, Your Honours.  That would assist.

 3             JUDGE MOLOTO:  Paragraph 5 says:

 4             "Ratko Mladic committed each of the charged crimes in concert

 5     with others through his participation in several related joint criminal

 6     enterprises, each of which is described below.  Radovan Karadzic and as

 7     of 12th May 1992, Ratko Mladic, were key members of an overarching joint

 8     criminal enterprise which lasted from at least October 1991 until

 9     November 1995."

10             MR. IVETIC:  Your Honours, the Defence would ask the Chamber to

11     interpret the indictment as it is supposed to be interpreted based upon

12     the notice jurisprudence.  Here, in paragraph 5, the participation of

13     General Mladic is alleged to begin.  His entry into the JCE is alleged to

14     begin 12 May 1992.  The schedule of the indictment giving incidents for

15     which it is alleged that General Mladic has criminal responsibility have

16     likewise focussed on the time-period post-12 May 1992.  We have cited to

17     jurisprudence relating to a JCE that indicates that the notice of a JCE

18     needs to be specific as to the precise events alleged to be part of the

19     JCE, the precise identity of perpetrators of the same, the precise manner

20     of the accused's participation in the same, and we would argue that given

21     that the indictment, this indictment, claims to limit General Mladic's

22     criminal liability as flowing from 12 May 1992 onwards that this evidence

23     that predates that time-period which has not been put in the indictment

24     should not be considered for purposes of the guilt or innocence of

25     General Mladic.

Page 20900

 1             JUDGE MOLOTO:  Let me just make sure I understand you.

 2             The Defence objects to the Prosecution referring to actions of

 3     Mr. Mladic prior to the 12th of May, but the Defence does not object to

 4     the Prosecution talking about events by other participants which

 5     constitute JCE which were committed before 12th May 1992.

 6             MR. IVETIC:  That's correct.

 7             JUDGE MOLOTO:  Thank you very much.  That's -- I understand.

 8             MR. IVETIC:  Thank you, Your Honour.

 9             JUDGE ORIE:  Mr. Ivetic, I have two questions for you:

10             The first one is that you referred to P501, where you said

11     General Mladic is trying to find out who has instructed the

12     Sarajevo Corps to use aerial bombings against Sarajevo which the

13     Main Staff did not order.

14             Could you be a bit more precise where that exactly is found in

15     P501.

16             MR. IVETIC:  If I can pull it up, Your Honours, and I might be

17     able to.

18             My recollection was that the document reads:  We have information

19     that you are planning on using an aerial bomb against Sarajevo.  Please

20     advise us.  Please advise us - don't have the document here - how that

21     has been issued since the Main Staff is supposed to be issuing them.  If

22     the Supreme Command has issued an order directly, it should be sent to

23     the Main Staff.  That's my recollection of the document.  I hope I have

24     the right one.

25             JUDGE ORIE:  Yes.  That's perhaps what I wanted to verify.

Page 20901

 1             MR. IVETIC:  Your Honours, perhaps I can -- since we are done at

 2     the break, I can find that out.

 3             JUDGE ORIE:  If you can do that during the break.  I'm looking

 4     forward to your answer.

 5             Then, I have one other question, which is the following:

 6             You very much insisted on General Mladic never have given any

 7     inappropriate order.  You -- you certainly will remember that the Chamber

 8     has listened to an intercepted telephone conversation in which the issue

 9     of engaging Pofalici where not many Serbs were living was dealt with.

10     Could you explain to us -- Mr. Mladic would like to be consulted, but let

11     me first finish my question without being interrupted.

12             Could you further elaborate on how this Chamber would have to

13     interpret and have to look at such a telephone conversation and this

14     observation about to engage Pofalici where not many Serbs are living.

15             If you want to consult before you answer the question with

16     Mr. Mladic, then, of course, you have an opportunity to do so.

17             MR. IVETIC:  I would appreciate the opportunity to consult and

18     then I will attempt to answer your question.

19             JUDGE ORIE:  Thank you.

20                           [Defence counsel confer]

21                           [Prosecution counsel confer]

22                           [Trial Chamber confers]

23             MR. IVETIC:  Your Honours, after consulting with my colleague and

24     the General, and recalling that particular purported intercept, we remind

25     the Chamber first and foremost that we have objected to the authenticity

Page 20902

 1     of many of the intercepts and I believe that intercept as well.

 2             But to look at the content of the same, there is another meaning

 3     behind the same.  Where the VRS attacks enemy formations in a particular

 4     location, if there are Serbs that lived nearby, there's always the

 5     potential for reprisals against those Serbs by the ABiH forces.  And so

 6     the intercept, if authentic, has an alternative meaning behind it that is

 7     equally reasonable under the evidence and in the principle of in dubio

 8     pro reo, the inferences must go towards the innocence of the accused.

 9     There is this meaning of limiting the ability of the enemy to undertake

10     reprisals aimed against your own friendly civilians who may be in the

11     area.

12             And that would be the -- what I have to attempt to answer

13     Your Honour's question.

14             JUDGE ORIE:  Yes.  Then I would have one follow-up question or

15     perhaps rather to -- to see whether we agree on a matter, which is that

16     in this telephone conversation, if it is reliable, if it is authentic

17     that nothing is said about any military target in Pofalici but rather is

18     talking about firing at Pofalici.  And if we missed something that there

19     was any specific military target mentioned elsewhere so that we could

20     understand this to be an indication of to engage that military target at

21     Pofalici, I'd like to hear from you.

22             MR. IVETIC:  My recollection, Your Honours, during the testimony

23     when this was brought up was that there was a discussion of when

24     artillery plans are made within the army that specific locations are

25     identified on a map and that when communications are given it -- the

Page 20903

 1     common term is used rather than the precise location that would be known

 2     to those looking at the map together.  That's all that I recall as being

 3     in the evidence upon this.  We have, of course, intend to present more

 4     during our Defence case in-chief but that is irrelevant now for 98 bis.

 5     But that's all that I recall as being in evidence.  Your Honour is

 6     correct that the purported intercept itself does not give any more

 7     specific detail, apart from just saying Pofalici, as to the intended

 8     target of the action.  But there was, I believe, some evidence of maps

 9     having pre-coded targets included on them, such that commanders could

10     refer using general terms and those on the other end looking at the same

11     map would know which target is -- is intended.  But I do concede that the

12     intercepted itself as recorded again does not have any further

13     specification, apart from saying just Pofalici.

14             JUDGE ORIE:  And as far as other materials is concerned, is there

15     in the evidence to be found anything which specifically, in maps or

16     whatever way, specifically refers to Pofalici as being the location of

17     any military target?  I don't expect an answer right from the top of your

18     head, Mr. --

19             MR. IVETIC:  I could maybe also look during the break.  Off the

20     top of my head, I cannot think of any.  The only map that I remember was

21     related to another location, not to Pofalici.

22             JUDGE ORIE:  I think Mr. Mladic again would like to consult with

23     you.

24             MR. IVETIC:  One moment, Your Honours.

25                           [Trial Chamber confers]

Page 20904

 1             JUDGE ORIE:  Mr. Mladic, as you know, you are always invited to

 2     remain seated when you consult with counsel.  Would you please sit down.

 3             THE ACCUSED:  [No interpretation]

 4             JUDGE ORIE:  You --

 5             THE ACCUSED: [No interpretation]

 6             JUDGE ORIE:  I don't receive any English translation.  One

 7     second.  One second.  I don't receive any English translation.  Is

 8     there --

 9             THE INTERPRETER:  Can you hear the English now?

10             JUDGE ORIE:  Yes, I can hear the English now.

11             Mr. Ivetic, if there's anything Mr. Mladic would like to bring to

12     the attention of the Court, you may do so on his behalf.

13                           [Defence counsel confer]

14             JUDGE ORIE:  No.  No.  No loud speaking.  Apparently consultation

15     is over.

16             Mr. Ivetic, anything to add?

17             MR. IVETIC:  Yes, Your Honours.  I would like to add what the

18     General has just reminded me of, that his own home was in Pofalici and

19     prior to this time-period, the ABiH forces had engaged the local Serb

20     civilians and had -- had engaged in combat against them and had forced

21     them out and that his own home had been under fire and was burning and

22     was seen burning by him in this area precisely, Pofalici, so there was a

23     presence of an enemy force known to him.

24             JUDGE ORIE:  I don't know whether this is to be found anywhere in

25     the record.

Page 20905

 1             MR. IVETIC:  [Overlapping speakers] ...

 2             JUDGE ORIE:  But Mr. Mladic is not expected to give testimony in

 3     his own case unless he presents himself as a witness and then be

 4     cross-examined on whatever he says.

 5             So, therefore, in that respect we'll ignore that as a piece of

 6     information.  And you know how to have this information to be introduced

 7     into the proceedings.

 8             Mr. Mladic wants to consult again.  I suggest that he consults

 9     with you during the break.

10             We take the break, and if there's anything to be brought to our

11     attention, we'll give you an opportunity to do so immediately after the

12     break.

13             MR. IVETIC:  Thank you.

14             JUDGE ORIE:  Mr. Groome I'm just wondering but I'm also

15     addressing you, Mr. Ivetic, whether we should take a break of 20 minutes

16     or whether you would prefer to have the advantage of a little bit more

17     time - not the same as between yesterday 2.30 and this morning, the time

18     Mr. Ivetic had available - but at least perhaps half an hour before we

19     resume --

20             MR. GROOME:  That would be appreciated, Your Honours.  And I

21     think our submissions would be less than an hour.

22             JUDGE ORIE:  Less than an hour, and half an hour would be enough

23     for a --

24             MR. GROOME:  Yes, Your Honour.

25             JUDGE ORIE:  Then we will take a break and we resume at 11.00.

Page 20906

 1                           --- Recess taken at 10.28 a.m.

 2                           --- On resuming at 11.04 a.m.

 3             JUDGE ORIE:  Before I give an opportunity to the Prosecution to

 4     make further submissions, Mr. Ivetic, P501 was, I think, a question I had

 5     put to you.

 6             MR. IVETIC:  That's correct, Your Honours.  And the correct

 7     number is P581.

 8             JUDGE ORIE:  P581.  That may clarify matters.

 9             MR. IVETIC:  I think it showed the entirety of the document,

10     which is one page deals with the issue that I was going from memory on.

11     And you also had asked about Pofalici.  I was able to find evidence on

12     the record of the matters that the General spoke of, the enemy presence

13     in Pofalici.  There's transcript page 15544, dealing precisely with

14     May 1992, Prosecution Witness Robert Donia confirming that the Muslim

15     forces had engaged in combat and against the Serbs -- civilians in

16     Pofalici, and then we have transcript page 8172 which is from time-period

17     of 1994 talking about the UN confirming that the BiH side was shooting

18     from Pofalici.  Those were the only two references I could find in the

19     transcript during the break.  And I thank you for the opportunity to --

20             JUDGE ORIE:  Anything more specific?  Because I read in the

21     transcript of the intercepted conversation, again, if authentic, that

22     there are references made to shoot there, around Dobrovoljacka, up there

23     around Humska and Djure Djakovica Street, up there, which is not a very

24     specific -- at least it sounds as if it is not referring to a very

25     specific target to be engaged.  If you could, not necessarily now --

Page 20907

 1             MR. IVETIC:  I can.  I did read these.  With respect to these two

 2     transcript references, the one from 1994 only said it was near the

 3     Serbian church in Pofalici which I don't know where that would be

 4     located.  Dr. Donia's testimony was of a particular time-period but a

 5     very general nature not giving any geographic assistance.

 6             JUDGE ORIE:  If the parties could agree on where those streets

 7     were at the time so that it may be close to the church or not close to a

 8     church.  It may be that it is a very small street, 50 metres, which makes

 9     it far more specific or whether it's a very long street, as you find

10     sometimes, then that might assist the Chamber in better understanding

11     your explanation, Mr. Ivetic.  If the parties could try to reach an

12     agreement on that, it would be appreciated.

13             Then we move on --

14                           [Trial Chamber confers]

15             JUDGE ORIE:  And I would also like to put on the record that

16     there apparently was some problem with the interpretation and some

17     problem with microphones which apparently caused Mr. Mladic to be

18     concerned about that, and then -- so the Chamber understands that he

19     intervened at that moment and has -- fully understands that this was the

20     case.

21             Mr. Groome, are you ready to proceed?

22             MR. GROOME:  Yes, Your Honour.

23             Just with respect to that -- the Pofalici matter, I would also

24     recall for the Chamber that they received evidence in RM511 about how

25     targeting decision were made.  The Chamber will recall a full-size

Page 20908

 1     military map that was actually presented in court and the Chamber took

 2     some time to review that and of the targets.

 3             Your Honour, the first matter I would like to deal with are the

 4     characterisations by Mr. Ivetic of the Prosecution's argument.  He has

 5     made a number of submissions related to this.  For example, he said

 6     today:

 7             "Further, at transcript page 20803, the Prosecution boldly

 8     asserts that the taking of UN personnel which the Defence did not raise

 9     in our 98 bis submissions is indicative of the common purpose behind the

10     JCE constituting genocidal intent."

11             He also brought to your attention transcript page 20805.  He

12     characterised what was there, suggesting a particular interpretation of

13     our submissions related to the six strategic objectives.

14             I have re-read those two pages and believe that our position is

15     clear.  I think I articulated our case clearly, and rather than repeat

16     myself now, I would simply ask the Chamber to not -- if it needs to be

17     reminded of my arguments, simply look at those arguments rather than

18     relying solely on Mr. Ivetic's interpretation of them.

19             Mr. Ivetic then addressed the 16th Assembly Session.  And my

20     submission with respect to that would be the following:  Mladic's long

21     and somewhat meandering speech at the 16th Assembly Session deals with

22     many different topics.  To dissect and make submissions about the context

23     of Mladic's comments and submission about how the Chamber should

24     interpret his words is something that is beyond the time that we have

25     today.  We have made some submissions placing some things that he said in

Page 20909

 1     context.  We will deal in detail with this speech in our final trial

 2     brief and final submissions.  We believe that at this stage of the

 3     proceedings the Chamber is able to read Mladic's speech which occurs at a

 4     very significant time just before he is appointed the commander of the

 5     Main Staff, and the Chamber will be able to come to its own views

 6     regarding what inferences are to be drawn from it for the purpose of the

 7     decision that the Chamber must take at this juncture in the trial.

 8             With respect to perpetrators that were not VRS members, at

 9     several points Mr. Ivetic against raised arguments about perpetrators

10     associated with police forces at some points mixing his arguments about

11     those forces with arguments about paramilitaries.  The only evidence

12     Mr. Ivetic referred to is evidence from after the majority of mass

13     executions in Srebrenica had been completed, evidence related to

14     Trnopolje or documentary evidence from September or October 1995.

15     Mr. Ivetic presents this evidence as if it relates to crimes by RS police

16     forces in 1992.

17             Instead each document comes after the incidents charged in the

18     indictment in which police forces were involved in committing crimes in

19     partnership with the VRS.  In some cases, for instance, related to crimes

20     in detention facilities like Keraterm and Omarska these documents come

21     several years afterwards.

22             Moreover, taken in their entirety, these documents reflect that

23     the JCE members were continuing to use paramilitary forces which they had

24     known for years were committing crimes.

25             Mr. Ivetic also suggested today that the Prosecution did not

Page 20910

 1     address certain incidents where he suggested paramilitaries or MUP

 2     personnel had been perpetrators.  In fact, the Prosecution addressed

 3     every Schedule A incident Mr. Ivetic discussed and on Monday, and

 4     explained in detail the partnership between different JCE forces in

 5     maintaining the system of detention facilities and committing crimes

 6     there.

 7             With respect to his submissions regarding RM070, the Defence

 8     suggests that the use of RM070's testimony and sexual violence related to

 9     offences that Mladic was unaware of.

10             JUDGE ORIE:  Please proceed.

11             MR. GROOME:  However, we turn to the Mladic notebook entries.  If

12     the Court considers P357 at page 67, you will see a 14th of January, 1993

13     meeting of Mladic with Slobodan Milosevic who gives Mladic a list of

14     Muslims to be released from detention.  Mladic notes that one of the

15     women is:  "She is in Elez prison in Miljevnina."

16             We also ask the Chamber to review Mladic's notebook from

17     November 1993 at P359, page 13, where he specifically notes by name women

18     being held.

19             For additional context, we ask the Trial Chamber to review the

20     closed session testimony of RM048.  General Mladic was well aware that

21     women were being held and he did nothing to stop systematic sexual

22     violence inflicted on them.

23             It is also worth noting that P338, page 45, the Main Staff combat

24     readiness report of 1993, explicitly refers to allegations of rapes and

25     various other crimes as part of a "brutal and ruthless anti-Serbian media

Page 20911

 1     campaign."

 2             So these claims of crimes of sexual violence were dismissed as

 3     propaganda, as it were.

 4             With respect to submissions regarding Ewa Tabeau, we can say that

 5     if the Chamber reviews Ms. Tabeau's report in whole, you will see that

 6     the Defence misconstrues the evidence.

 7             With respect to the issue of the relevance of events that

 8     occurred prior to 12th May, my submissions are rather brief.  I think one

 9     only has to consider a simple criminal case, such as a murder case, to

10     appreciate that there may very well be relevant evidence of mens rea and

11     planning that occurs before the actual homicide.  There's nothing new or

12     controversial about this.

13             The Mladic Defence raised this in a number of objections to the

14     admission of evidence.  The Chamber heard and considered the Defence

15     arguments fully.  The evidence was admitted and it should not be

16     re-argued now.  I won't repeat the rationale for why evidence before an

17     indictment period may be relevant to the indictment period.  I believe is

18     self-evident.

19             The differences between Karadzic and Mladic.  Mr. Ivetic raises

20     the argument that the relationship between Karadzic and Mladic was such

21     that a JCE could not have existed and points to the issue of Arkan's

22     presence in Sanski Most.  It would require a very long time to give a

23     useful narrative about the relationship between the two men over the

24     years.  I would simply say that it is important to consider the time and

25     context when examining evidence about their relationship.  For example,

Page 20912

 1     the situation Mr. Ivetic referred to occurred in 1995 and -- and to

 2     understand that, the Chamber really has to understand the context of

 3     their relationship at that stage.

 4             All I will say in response to Mr. Ivetic's submission is that the

 5     professional relationship between Karadzic and Mladic always functioned

 6     and functioned well.  At no time during the indictment period did

 7     tensions between Karadzic and Mladic rise to a level that they

 8     compromised their respective participation in or contributions to a

 9     common criminal plan or rise to a level which compromised the

10     superior/subordinate relationship between Karadzic and Mladic and Mladic

11     and his subordinates.  And I would recall for the -- the Chamber the

12     evidence of General Milovanovic who addressed this -- this very point.

13             During the course of the indictment period, there was from time

14     to time disagreement among JCE members regarding the best way to achieve

15     its goals, but there is ample evidence before the Chamber establishing

16     that the goals remained constant throughout the indictment period.

17             Mr. McCloskey will now address the Chamber on a few matters

18     related to Srebrenica.

19             Thank you, Your Honours.

20             JUDGE ORIE:  Thank you, Mr. Groome.

21             Mr. McCloskey, you may proceed.

22             MR. McCLOSKEY:  Good morning, Your Honours, Mr. President.  I

23     won't take much of your time today.

24             Mr. Ivetic spoke briefly of Directive 7, and the arguments are --

25     are out.  I won't say anything on that except to reiterate -- and I know

Page 20913

 1     you will take a good look at the documents.  They speak for themselves.

 2     And they stand together, 7 and 7.1.  Radovan Karadzic and General Mladic.

 3     Consistent with each other.  As President Karadzic and General Mladic

 4     stood together, as just referenced by Mr. Groome.

 5             Mr. Ivetic's allegation regarding the contradiction in the

 6     Prosecution's opening statement, I -- from the -- the observations, the

 7     questions of the President, I think it cleared that up.  The Prosecution

 8     has always argued that there was a two-part purpose to the attack on the

 9     enclave.  One, legitimate; and one illegitimate.  And the various

10     arguments and documents based on that remain the same and untouched by

11     Mr. Ivetic's arguments.

12             Mr. Ivetic brought up the testimony of RM374, again, Kravica, and

13     I will very briefly bring out some of the key points there.  RM374 met

14     with Colonel Beara in Zvornik.  You may -- you will recall that

15     testimony.  He also recalled receiving a story from a bus driver who said

16     he was at the Kravica warehouse when a Muslim grabbed a gun from a Serb,

17     and Muslims and Serbs were shot.

18             Now, this version sounds a lot like what we refer to as burned

19     hands, and possibly could be.  As you know, the Prosecution does believe

20     that a burned-hands incident happened.  That a Muslim at the warehouse

21     came out, grabbed a gun from a Serb policeman, and shot and killed one

22     Serb and wounded another and that people were killed on both sides.

23             There are two interpretations related to the Kravica warehouse.

24     One, that this is what started the incident that led to the murder of

25     some 800 to a thousand men; the burned-hands incident started it.  The

Page 20914

 1     other version is that it started before that and, as a result of the

 2     executions, a Muslim came out, grabbed a gun, and killed a Serb.

 3             The first version, the Prosecution feels, is unreasonable.  The

 4     second version, reasonable.  Should the Court differ and find that the

 5     first version -- or that both versions are reasonable, we understand the

 6     law requires you to take the Defence version.  And if you do that, also

 7     recall that these men that -- that died at the Kravica warehouse on the

 8     evening of 13 July were already marked for death and were killed during

 9     the process of the murder operation.

10             But when you're making this important determination about which

11     is reasonable, please recall the testimony of RM256.  And if I could

12     bring up one picture from P1539, page 60, that's the road book that was

13     the subject of testimony of Mr. Blaszczyk.  And in that book, we see a

14     picture of the Kravica warehouse with bodies in front of it.  You'll

15     remember the famous video where Petrovic and Borovcanin are driving by

16     from right to left, and we see bodies in front of the warehouse,

17     camouflaged men with their back to the warehouse, and a bus, and then we

18     hear automatic gun-fire, and then the -- the film goes blank.

19             JUDGE ORIE:  Mr. McCloskey, since we have some problems with our

20     screens, could you take us to the relevant page so that we could look at

21     it on our own private scenes.

22             MR. McCLOSKEY:  Did it -- did it just come up?

23             JUDGE ORIE:  Not for me, but that's already half an hour.  So

24     that's -- if you give me the page I'll have a look at it because I --

25             MR. McCLOSKEY:  Page 60 of P1539.

Page 20915

 1             JUDGE ORIE:  I've got it.  Please proceed.

 2             MR. McCLOSKEY:  Thank you.  And this is -- it would not have been

 3     my first choice because unfortunately this -- these two photos are

 4     reversed from the way it was in actuality.  If -- if you remember the

 5     film as it goes from right to left, the bus is actually on the left side

 6     of the bodies, but this separate photograph has been put on the right

 7     side of the -- the bodies in -- in the book.  So just concentrate on the

 8     photo with the bodies and -- and recall that that bus is there but it's

 9     on the left side.

10             This is what is the west side of the warehouse, the one with the

11     bodies in front of it.  And this is where RM256 is located, not far from

12     that opening.  And he is jammed in there with other men, and it's

13     practically full, if not completely full, according to his testimony.

14     And the other side, the east side of the warehouse, according to the

15     testimony, is already full, and that is where the other survivor, RM274,

16     is.

17             And the testimony of RM256 is that a man comes -- a Muslim man is

18     brought into the warehouse, it's so packed he has nowhere to sit, he

19     complains, and then suddenly gun-fire opens up all around them and people

20     are being shot inside the warehouse.  Then hand grenades are thrown in,

21     and he manages to survive.

22             JUDGE ORIE:  Please proceed.

23             MR. McCLOSKEY:  And, at the same time, RM274 is in the east side

24     of the warehouse, and his -- his statements say that he hears gun-fire

25     outside that's going on for a while.  The most reasonable interpretation

Page 20916

 1     of this evidence is that the mass executions begin as they were seen by

 2     RM256.  This person comes into the warehouse, it's jammed, gun-fire opens

 3     up.  After that, burned hands happens.  If it's the bus, people outside

 4     of the bus.  It's in reaction to people on the bus hearing and seeing

 5     what's going on in the warehouse.  Because RM256, if he is just inside

 6     this warehouse, he would have heard a burned hands gun-fire that happens

 7     outside the warehouse.  He would have heard that.  Automatic weapon fire

 8     you can even hear it on the -- you can hear some automatic weapon fire

 9     even on this -- on this video, as -- -- as it drives by.  This is an

10     amazing noise.  Would have been heard had burned hands happened before

11     that.  Also there's evidence of a special police soldier that is ordered

12     by Borovcanin to stop the traffic at the Kravica village.  He does so.

13     Shortly after stopping the traffic he hears automatic weapon fire and

14     hand grenades.  So it's a complicated situation with many witnesses.  Two

15     versions:  One reasonable and one unreasonable.

16             And thank you for your -- for your careful attention.

17             JUDGE ORIE:  Thank you, Mr. McCloskey.

18             Mr. Groome, does this conclude the submissions by the Prosecution

19     or is there anything you'd like to add?

20             MR. GROOME:  Yes, Your Honour, it does.

21             JUDGE ORIE:  Then this concludes, then, this hearing in which the

22     Chamber heard any submissions which would be able to assist us in

23     determining whether Rule 98 bis applies or not.  The Chamber will

24     consider the submissions and will -- since specific submissions have been

25     made, will deliver a decision anyhow, which will be an oral decision.  I

Page 20917

 1     think we have not yet decided when it will be delivered.

 2             Therefore, we adjourn for the day but sine die.  We stand

 3     adjourned.

 4                            --- Whereupon the hearing adjourned at 11.30 a.m.,

 5                           sine die.