1 Friday, 9 December 2016
2 [Defence Closing Argument]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.32 a.m.
6 JUDGE ORIE: Good morning to everyone in and around this
8 Mr. Registrar, would you please call the case.
9 THE REGISTRAR: Thank you and good morning, Your Honours. This
10 is case IT-09-92-T, the Prosecutor versus Ratko Mladic.
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 Mr. Lukic, is the Defence ready to present its final argument?
13 MR. LUKIC: Yes, we are, Your Honour.
14 JUDGE ORIE: Then please proceed.
15 MR. LUKIC: Thank you, Your Honour. Good morning to everyone.
16 The Prosecution has made clear that they consider
17 General Ratko Mladic guilty, but this is according to their view of how
18 someone should be tried for war crimes. This view attempts to establish
19 new rules for assessing guilt and started with the proclamation first
20 stated in the indictment in paragraph 12 that makes it clear how the
21 Prosecution defines guilt.
22 If someone is a member of the JNA, the Serbian police, Serbian
23 authorities, or a member of the Bosnian Serb government, Bosnian Serb
24 police structures, Bosnian Serb municipal structures, the VRS, or just a
25 local Bosnian Serb, then you are automatically guilty of being part of a
1 JCE, which includes two separate genocides. Later it was pointed out by
2 the Defence that this literally applied to every local Bosnian Serb over
3 the age of 16, which the Prosecution did not ever contradict, deny, or
4 correct. This definition of guilt has always been ever-present in the
5 background of the Prosecution's case and in how they interpret the
7 Thus, according to the Prosecution, General Ratko Mladic is
8 already guilty at the moment the indictment is signed because he is a
9 soldier and an officer in first the JNA and later the VRS. He is guilty
10 per the Prosecution just because he is a Serb and tried to defend his
11 country, first Yugoslavia and then Republika Srpska, from attacks and war
12 that were started and pursued by others, not by Serbs. The Prosecution
13 wants to assert strict liability for everyone who is Serbian and everyone
14 who had any position within legitimate Serb government, civilian and
15 military organs. This is nothing more than impermissible collective
16 guilt. They would have General Mladic stand to be on trial for the
17 crimes of the Serb people, as perceived by the Prosecution.
18 We must stress that the Prosecution case, at least how it is now
19 presented in their final brief, which is not how it was presented in the
20 indictment, is that General Ratko Mladic is guilty for things that
21 occurred in Bosnia-Herzegovina prior to his becoming commander of the VRS
22 Main Staff on May the 12th, 1992. Again, this betrays that the true
23 essence of the Prosecution's motive is to convict General Mladic because
24 he is a Serb, because he acted in accordance with the domestic laws and
25 his duty and obligations to serve in his country's army to defend its
1 people from a war being prepared and pursued against them, both on a
2 local level and on the international plain. If that is the appropriate
3 standard of proof - that is to say, if being a Serb and a member of the
4 JNA and later VRS defending his country and its people against an armed
5 enemy that used ethnic and religious fanaticism to try and take power -
6 then General Mladic is guilty. And guilty alongside General Mladic is
7 every single military officer that has ever served in any country's army
8 in the entire world. That is the absurd [sic] that ultimately would come
9 from the Prosecution's tactic of selectively presenting the evidence and
10 attempting to alter the way burden of proof works for criminal justice.
11 It is our job today and in the next few days to remind
12 Your Honours and remind the public, of which the non-Serbian portion of
13 the public have perhaps already convicted our client in their minds upon
14 reading of the indictment, that the Prosecution's indictment and policy
15 of collectively blaming all Serbs of being part of a JCE and then blaming
16 General Ratko Mladic for all crimes ever committed by any Serbs, known or
17 unknown, is inappropriate. Later we will discuss the appropriate
18 standards and how burden of proof is supposed to function and demonstrate
19 that under the appropriate standard, this Prosecution has failed to meet
20 that burden and, thus, Ratko Mladic is not guilty.
21 But first, now I want to remind everyone that Your Honours will
22 judge Ratko Mladic, but history will judge these proceedings and you as
23 Judges for what verdict you came back with. History will judge if
24 justice was done and seen to be done, or if shortcuts were taken and if
25 the Prosecution is permitted to rely on propaganda, faulty evidence, and
1 the wrong standard to convict Ratko Mladic because he is already deemed
2 guilty by many.
3 Indeed, this is the first time in my career as a lawyer over
4 33 years now, that I stand before three Judges where two of the Judges
5 have already in prior cases explicitly found my client guilty before he
6 even was on trial and without the ability to defend himself. It is the
7 first time that I stand before a Trial Chamber where its staff have come
8 over in part from another case having already convicted my client there
9 too, again, without giving him the ability to defend himself, because he
10 was not on trial yet. It is your obligation and duty to set aside the
11 prejudicial view that you may have from these prior cases and focus on
12 this evidence in this case, not what the Prosecution wants it to be or
13 what you remember it to be from those prior cases. I hope that you can
14 set aside as professional Judges that pre-judging and rule fairly and in
15 accord with the evidence in this case. Some of your decisions worry us
16 that this may not be the case, especially when recently you confirmed
17 that you did not see it as a problem that you had already started work on
18 the judgement even before final briefs were filed. History will judge
19 what is done in this courtroom.
20 Indeed, these and other things that transpired during the trial
21 have shocked legal professionals from around the world because procedures
22 are so different in this trial than they were in other ICTY trials or
23 even in criminal trials in the rest of the world. But I remind you, as
24 much as the ICTY has modified certain procedures, it has not modified the
25 essential items. Article 21 ensures that General Mladic be treated
1 equally like all other accused before this Tribunal. It also guarantees
2 him a fair trial.
3 Rather than focusing on the actual orders and conduct of
4 General Ratko Mladic, the human being and person, the Prosecution in both
5 their final brief and the submissions we have had to listen to the last
6 week attempts to pump General Mladic to superhuman proportions and
7 abilities as if he was all-knowing and all-powerful to see, hear and
8 control everything and everyone in Bosnia-Herzegovina, even before he
9 came to Republika Srpska, even before he was named commander of the
10 Main Staff.
11 It is our job to remind Your Honours, remind the Prosecution, and
12 remind the public, not only watching today but future generations who
13 will judge these proceedings as a part of history, that Ratko Mladic is a
14 person, not a superhuman being. Ratko Mladic is an accused who stands
15 before you an innocent man and protected by certain due process rights
16 afforded by the ICTY Statute. He is innocent because the presumption of
17 innocence which forces the Prosecution to prove his guilt beyond a
18 reasonable doubt and because the evidence, which later my colleague
19 Mr. Ivetic will painstakingly show you, demonstrates that the Prosecution
20 has failed to overcome the presumption of innocence when the proper
21 burden of proof analysis is applied.
22 I wish to also remind you that context is always important and is
23 often ignored or misstated by the Prosecution. To accept the Prosecution
24 case, one must pretend that the Serbs or Bosnian Serb forces, as they
25 call them, acted in a vacuum where there only existed alongside innocent
1 Bosnian Muslim and Bosnian Croat civilians.
2 Can we see the next slide, please.
3 To believe the Prosecution's vision of the case, one has to
4 ignore the presence and activities of an opposing armed opponent
5 consisting of multiple paramilitary organisations and armies. It is my
6 job to remind you that General Mladic and the VRS and the people of
7 Republika Srpska were threatened and attacked by not just the armed
8 Patriotic League of the SDA - it's P5897, P6277, P3133 - not just the
9 Green Berets - it's P3844, P4068, P6565 - not just the Army of B and H -
10 P7171, D1243 - not just the Croat HVO, not just the regular Croatian army
11 that illegally crossed over into Bosnia-Herzegovina - P482; P4922;
12 transcript page 41103; D1661, page 37; D867; D614 - but also by the NATO
13 alliance and UNPROFOR that took the side of these enemy forces and acted
14 in a biased manner ultimately using deadly force to kill Serbs and
15 destroy Serb infrastructure. If Ratko Mladic is to be judged for
16 everything that happened in Bosnia and Herzegovina, then we have to
17 consider everyone else that was there, that was armed, and that had a
18 role and effect on things.
19 In this regard, I remind you of the evidence that the Bosnian
20 Muslim SDA was preparing for war and secretly arming and establishing the
21 Patriotic League and Green Berets in all the municipalities of
22 Bosnia-Herzegovina, already since 1990 and 1991, long before
23 General Mladic came to be appointed as head of the VRS Main Staff on the
24 12th of May, 1992. The evidence demonstrates that the Main Staff of the
25 Patriotic League was set up in Sarajevo with nine Regional Staffs, with
1 103 municipal and numerous other staffs for smaller territorial units,
2 with a large number of units from platoon to brigade rank. By the
3 beginning of August 1992, through these SDA activities, about 170.000 men
4 were armed and organised in 28 brigades, 138 detachments of various
5 purposes and 16 independent battalions. Armed members of the
6 Patriotic League and Green Berets existed throughout the municipalities
7 of Bosnia-Herzegovina already, as I said, in 1991. We can find it in
8 D1870; D646; P1999, page 42; D1661, page 9. And these armed combatants
9 did not disappear and did not just sit quietly and peacefully after
10 General Mladic came to Bosnia-Herzegovina. Their presence and activities
11 in Bosnia-Herzegovina are an important context for viewing the evidence
12 and activities, events that are referred to by the Prosecution.
13 Similarly, we have evidence that in 1992 in Posavina there were
14 15 brigades from Republic of Croatia which rotated or were present on
15 this front in the critical stages of the conflict. There were also
16 50.000 armed members of the VHO present in Bosnia at the time of the war.
17 D1661, page 54.
18 I'm sorry, my colleague Ivetic just remind that I said HVO. I
19 should have said -- yeah, HVO, I should have said HVO. Thanks.
20 We need another slide.
21 Let's also remember that Bosnian Muslim SDA President
22 Alija Izetbegovic came to power on a platform advocating Islamic
23 fundamentalism and superiority over Serbs. D1532 is a 1983 judgement,
24 before the war, long time before the war, against Alija Izetbegovic for
25 his activities against the SFRY at that time issued by the Sarajevo
1 District Court. At page 14 in e-court, we see that his judgement takes
2 into account numerous lectures and discussions where Izetbegovic promoted
3 the following ideals:
4 "That the goal of the Islamic revolution in our country is the
5 creation of a unified Islamic state comprising Bosnia and Herzegovina,
6 Kosovo, and Sandzak.
7 "That a Jihad should be pursued to its final outcome in order to
8 exterminate the enemy and the infidel. 'We should not wait for a
9 challenge or a provocation. Muslims must devise that challenge
10 themselves. They must be the ones who produce the challenge, and the
11 goal will then disclose itself.'
12 "That Muslims must confront all non-Muslims and communists."
13 Izetbegovic's "Islamic Declaration" was re-published in 1991. It
14 is in evidence as D557. Only an excerpt of that book is actually in
15 evidence but it says enough. At page 14 in e-court:
16 "The first and the most important of these conclusions is
17 definitely the one about the incompatibility of Islam and existence of
18 non-Islamic systems. There can be no peace between the Islamic faith and
19 non-Islamic social and political infrastructures and institutions."
20 Later Izetbegovic pronounces at page 25 of his "Islamic
21 Declaration," I quote:
22 "Islamic order should and can approach the overtaking of rule as
23 soon as it is morally and numerically strong enough not only to overthrow
24 the non-Islamic rule but develop new Islamic rule."
25 Can we have another slide that we'll see.
1 Then other Bosnian Muslim publications took up Izetbegovic's
2 cause such as Vox, published in October 1992, that is in evidence
3 under --
4 [Defence counsel confer]
5 MR. LUKIC: 1991. Sorry, 1991. That is in evidence under D580.
6 And let's take a look not only at the translation but also the Bosnian
7 original to see the image and what is represented.
8 Here we have a Handzar Division Islamic soldier from
9 World War II, that is a Nazi unit, standing on the severed heads of
10 apparent Serb Chetniks resembling, among others, Radovan Karadzic, with
11 the banner, "The Fourth Reich is coming, Welcome!"
12 This particular article was met with a lot of fear and anxiety by
13 Serbs who dreaded what was in store for them. Witness -- one of the
14 witnesses told us about it at transcript page 24198 and further.
15 The Vox paper was not some fringe group. It was published by the
16 SDA local president and son of the mayor of the Sarajevo municipality who
17 worked closely with Alija Izetbegovic, as two witnesses told us at
18 transcript page 24198 and transcript page 23973.
19 Another article from Vox, also October 1991, is in evidence as
20 D558, and let's take a look at that that one. And that's the right-hand
21 part of this PowerPoint presentation.
22 Obituaries published for prominent Bosnian Serb political leaders
23 in Bosnia-Herzegovina. Witness Kecmanovic told us that all these persons
24 were alive at the time of the obituary being published. If you put this
25 side by side by the other image as we have it now on our screens, we see
1 that Karadzic, Koljevic and Kecmanovic resemble three of the severed
2 heads. All of this occurred before Ratko Mladic ever set foot in
3 Bosnia-Herzegovina in a VRS uniform. Yet certainly such things had
4 influence upon later.
5 Then we have the missing context of how the constitutional
6 structure of Bosnia-Herzegovina provided equal tripartite representation
7 for all three ethnic groups, which each having a veto power to prevent it
8 from being discriminated against or threatened. We have it on transcript
9 page 23807, transcript 42216, and 23806.
10 However, the Bosnian Muslim and Bosnian Croat parties bypassed
11 and violated these constitutional rules to call for an illegal referendum
12 on independence, disenfranchising the Serbs. We have that in our
13 transcript on page 42229. We have it in P3005, pages 34 and 35; P3006,
14 page 1; P7770, page 22; D1517, page 1; P7040, page 1.
15 Then there is the context of how the Bosnian Muslim SDA began
16 promoting ethnic Muslims into the MUP police beyond the established
17 tripartite rules of equal representation and calling up reservist MUP who
18 were Muslim while getting rid of Serb officers. We have it in P3208,
19 pages 1 and 2; D759, pages 1 and 2; D734; P6900; P3005, page 7. Again,
20 all of this before Ratko Mladic arrives.
21 Still, before Ratko Mladic's arrival, we have two orders issued
22 clandestinely by the Sarajevo SDA leadership's personnel, Hasan Efendic,
23 the TO commander, and Alija Delimustafic, the police minister, calling
24 upon their brethren to attack JNA convoys and attack JNA installations
25 and lay siege to them. It's D625 and D829. We have bloody attacks by
1 Bosnian Muslim forces upon JNA personnel a couple of days after these
2 instructions in Sarajevo and in Tuzla, even when the same, the JNA
3 personnel, were withdrawing peacefully and unarmed in accord with a
4 negotiated settlement. It's P4946; D646, number 34; and D968,
5 paragraph 22.
6 And we have evidence of Mujahedin being brought in to fight on
7 the side of Izetbegovic's Bosnian Muslim forces even from the ABiH, UN,
8 and others. D1871 is ABiH source; and D2128 is UN Expert Group.
9 D917 is a video in evidence based on footage that the Bosnian
10 Muslim side took of its own actions.
11 And we will see several videos now. First, we will see the
12 establishment of Mujahedin unit, the establishment of it. Can we play
13 it, please.
14 [Video-clip played]
15 MR. LUKIC: So it was played 10:42 up to 11:02.
16 Next video shows Alija Izetbegovic touring this Mujahedin unit,
17 and we will play from 12 minutes, 21 seconds, up to 13 minutes.
18 Can we play it, please.
19 JUDGE ORIE: Mr. Lukic, just for my information, we heard a lot
20 of words. My recollection doesn't serve me well to know whether the
21 translation is in evidence as well.
22 MR. LUKIC: Yes, Your Honour, it is in evidence, yes.
23 JUDGE ORIE: Have you given, then, the relevant portions to the
24 booths so that we can hear the English translation as well?
25 MR. LUKIC: We haven't provided the booths with the transcript of
1 this video.
2 JUDGE ORIE: Because if you want us to pay full attention to the
3 video-clip, then, of course apart from the pictures --
4 MR. LUKIC: There is time recorded in the transcript so it is
5 easy follow if you know that it was 10:42 up to 11:02, and it's in
7 JUDGE ORIE: Finally we'll find it, but, of course, this is a
8 public trial in which, I take it, the audience might not be that --
9 easily find the relevant portions of the translation into English. So,
10 therefore, if you would play any further videos today, please provide the
11 booths with the transcripts and the transcripts of the translation as
13 But for the time being, I think we can continue --
14 MR. LUKIC: I will just skip a bit and we'll come back to that
15 after the break.
16 [Defence counsel confer]
17 MR. LUKIC: Actually I tried to skip but I cannot since it will
18 be out of context. We will see the video and the public would be able to
19 see the video at least, not the -- what was said in those videos, but I
20 think that videos are telling for themselves. So it is easy to follow
21 without the text.
22 JUDGE ORIE: Well, if text is spoken, to say that it speaks for
23 itself, that's not very satisfactory. Is there any way that, for
24 example, you could read and I could just have a look at the words spoken.
25 This is not the way in which we should proceed even if we would do so for
1 the next 20 minutes. You should take care that after that, that both the
2 Judges and the Prosecution and the public would know what words are
4 MR. LUKIC: Thank you, Your Honour. We'll prepare transcript in
5 the future.
6 JUDGE ORIE: Another way would be to --
7 MR. LUKIC: But we have it on our screens. We cannot televise
9 JUDGE ORIE: Another way of dealing with it would be to take an
10 early break.
11 MR. LUKIC: Yeah. Then if it is possible, we would gladly accept
13 JUDGE ORIE: Yes. I take it, then, that if we divide the
14 remaining time equally for the four sessions, that Mr. Mladic would not
15 have any problem because there may be one or two which are a little bit
16 over one hour.
17 MR. LUKIC: I will check with that, but I am sure that there
18 wouldn't be any problems.
19 JUDGE ORIE: Yes, I saw, but you couldn't see it, I saw that
20 Mr. Mladic was nodding in the affirmative.
21 Then we'll take an early break and we'll resume at 10.30.
22 --- Recess taken at 10.07 a.m.
23 --- On resuming at 10.32 a.m.
24 JUDGE ORIE: Mr. Lukic, I hope that matters could be resolved
25 during the break.
1 MR. LUKIC: We checked the video, and actually there is no
2 transcript for this part in evidence so that's why it's not provided.
3 JUDGE ORIE: But then we should switch off the sound because if
4 there is no transcript, we cannot rely on any text. And under those
5 circumstances, I think, to present a text which is unknown to us in a
6 public hearing is not the appropriate way to do it. So we could look at
7 it. You could -- I don't have any recollection about the admission of
8 this document, but then we should switch off the sound and ignore, as we
9 have done before sometimes, ignore words spoken.
10 MR. LUKIC: We'll play two more videos and that -- there is no
11 text in them either, so we'll just see the video. And if it's possible
12 for technicians, they can turn off audio from them. I don't know -- we
13 cannot do it from our station.
14 JUDGE ORIE: Okay. Could we check whether it's possible to have
15 the sound switched off and that we only look at the pictures.
16 Yes, that's possible. Then one second, please.
17 [Trial Chamber and Registrar confer]
18 JUDGE ORIE: Mr. Lukic, I was even informed that you can do it on
19 your computer, so perhaps -- but no problem. It will be switched off
20 anyhow, but we'll then just continue. Then we have seen what we ought to
21 see. We're not going to play that again. And we're now looking at video
23 MR. LUKIC: 917, yes.
24 JUDGE ORIE: Please proceed.
25 JUDGE FLUEGGE: May I ask you, Mr. Lukic, because it was standard
1 procedure to have a transcript and the translation, are these portions
2 you are showing really in evidence? Are you certain about that?
3 MR. LUKIC: Yes. Yes, they are. I am certain about it but there
4 is no transcript for that part.
5 JUDGE FLUEGGE: Thank you for this confirmation.
6 JUDGE ORIE: And we'll have a look at under what circumstances
7 they were admitted.
8 Let's proceed.
9 MR. LUKIC: Thank you, Your Honours. We will play the next video
10 from 12 minutes, 21 seconds to 13 minutes.
11 Can you start, please?
12 This shows Alija Izetbegovic touring Mujahedin unit.
13 [Video-clip played]
14 MR. LUKIC: Thank you. And, then, can we see the next video.
15 We have members of the same Bosnian Muslim forces killing Serbs,
16 decapitating them.
17 [Video-clip played]
18 MR. LUKIC: And then next slide, we have members -- from the same
19 video, we have members of Bosnian Muslim forces standing with their boots
20 on the decapitated Serb heads.
21 [Video-clip played]
22 MR. LUKIC: Just as Vox magazine.
23 JUDGE ORIE: Mr. Lukic, what is it in my e-court system that I
24 have transcripts which you apparently have not?
25 MR. LUKIC: I do have a transcript but not for this portion of
1 video. We have transcripts but not for the portion we played. We tried
2 through the time stamps.
3 JUDGE ORIE: Okay. And you said you were playing from ...
4 MR. LUKIC: For example, the first one, if we check 10 minutes,
5 42, 11:02, there is just stars.
6 JUDGE ORIE: I have at least -- well, let me see. It's a bit
7 unclear. It's also a bit unclear now to what extent why we have an
8 incomplete transcript, whether we have not played the whole of it before.
9 Let's not spend too much time on it now.
10 MR. LUKIC: We can translate that as well but we didn't have time
11 over the break. We would gladly translate that couple of sentences,
12 Your Honours.
13 JUDGE ORIE: Okay. Let's move on --
14 MR. LUKIC: Thank you.
15 JUDGE ORIE: -- at this very moment.
16 MR. LUKIC: Thank you.
17 So just as Vox magazine threatened they would do in 1991, these
18 pictures show us. Let there be no doubt that Serbs in Bosnia-Herzegovina
19 and even non-Serbs who did not go along with the SDA regime had to defend
20 themselves for their very survival, and let's not forget that the Bosnian
21 Muslims and Croats had threatened the survival already in World War II,
22 the survival of Serbs, as part of the Nazi forces that terrorised Serbs,
23 Jews and Romas in Jasenovac and other death camps. That is not to say,
24 of course, that all Muslims were Mujahedin or that all Croats were
1 Can we see the next slide, please.
2 And let's not forget the context that Alija Izetbegovic and the
3 leading Bosnian Muslim cleric, Reis Efendija Mustafa Ceric met to discuss
4 how it would be beneficial for the goal of obtaining foreign intervention
5 if a massacre were staged in Markale and also in the enclaves, with the
6 aim that their own Muslim civilian population be sacrificed for the
7 greater cause as Muslim martyrs. We have that evidence from the witness
8 on page -- transcript page 42688 and onwards.
9 This is the same Alija Izetbegovic who used the civilian
10 population of Sarajevo as human shields, refusing to let them leave
11 Sarajevo - we have it in P6761, page 3; D626, paragraph 63; D597,
12 paragraph 13; D646, number 19; D597, paragraph 13 - and placing ABiH
13 troops in civilian buildings and surrounded by civilians from which to
14 shoot at the Serbs. D1661, paragraph 142; transcript page 25001;
15 transcript page 25107; D613; D509, paragraph 13; D653, paragraph 38;
16 transcript page 767, Harland; D535, paragraph 20.
17 In the modern day, ISIS follows a similar model and acts very
18 comparably to the words and deeds of Alija Izetbegovic and his forces,
19 and the whole world is aligned against ISIS and still is having
20 difficulty to stop the terror. In 1992, when Ratko Mladic came to the
21 VRS in May, all he had to stand against the terror of Alija Izetbegovic's
22 Mujahedin forces was a rag-tag army pulled together from remnants of
23 various units, TO units, mobilized civilian volunteers, with not enough
24 professional officers to effectively command and control the same. Let's
25 remember that the Main Staff of the VRS, rather than having hundreds and
1 thousands of officers like the JNA 2nd Military District, had just around
2 a dozen when it started its work. But it is clear that rather than
3 acting from some criminal purpose, the VRS and General Mladic were driven
4 by the legitimate aim to militarily defend against these threats and
5 attacks from a very numerous army, an enemy, who was armed and not
6 adverse to using terror both against others and their own people to
7 obtain the Muslim-dominated state that they had set out to obtain, as
8 promised in Izetbegovic's Islamic Declaration.
9 Next slide, please. And let's not forget that the Prosecution
10 narrative ignores the words and orders of General Mladic that urge for
11 the non-Serb civilian population to be protected and for POWs to be
12 treated properly and in accordance with the law. Here we have words from
13 Directive 1. It's P474, the same words we can find in D726; D961,
14 page 1, number 1; D711, paragraph 18.
15 Everything good and innocent that General Mladic ever uttered or
16 signed is ignored by the Prosecution or in their final brief it is said
17 to be a lie, because secret, unknown and undocumented alleged meetings
18 decided another fate, as in Srebrenica, where they cannot even identify
19 when that secret, criminal meeting would have taken place, except that it
20 must have taken place in the few hours between two other meetings at the
21 Fontana hotel where the evidence is that nothing improper was discussed.
22 The Prosecution have used innuendo and impermissible inferences to say
23 that when have you two possibilities available under the evidence, you
24 must accept the one indicative of General Mladic's guilt, because he is
25 General Mladic. And that is not the law, that is actually counter the
1 law. They want you to ignore all the evidence that Ratko Mladic was
2 consistently -- constantly seeking a cessation of hostilities and asking
3 for the UNPROFOR to enforce compliance by the Bosnian Muslim side to
4 agreements, which they did not. Ratko Mladic neither started nor
5 prolonged the war. And that we have in our evidence.
6 Can we have another slide, please.
7 Let's not forget that the Prosecution keep talking about
8 separation being a central part of the Serb strategic objectives and thus
9 the alleged criminal plan and enterprise. However, if we look at the
10 context, we see that separation was what all three ethnic parties had
11 been negotiating with international mediators for a long time and which
12 had been agreed to by all three sides as a way to peacefully resolve the
13 situation and avoid the war, and that it was the Bosnian Muslim side that
14 sabotaged these peace negotiations by going back and renouncing its
15 signature. Again, it is Alija Izetbegovic doing this, per advice from
16 the Americans. Ambassador Zimmermann specifically. We have it -- P6665
17 is a map from Ambassador Cutileiro. And we have P7772, also a map of the
18 Cutileiro Plan from March 1992. In front of us on our screens is D1403.
19 It's a letter to Jose Cutileiro from Karadzic, Koljevic, and Krajisnik
20 from March the 2nd, 1992, informing him that Izetbegovic refused the plan
21 and that at the same time and the same day, in the wedding parade in
22 Sarajevo, a Serbian bridegroom's father was killed by a Muslim.
23 If separation is the first step in the Serb's criminal plan, then
24 is that also to say Ambassadors Cutileiro, Akashi, Hurd, Owen,
25 Stoltenberg were the architects of that plan? How about other members of
1 the international community who tried to achieve peace by way of
2 separation? What about UNPROFOR peacekeepers trying to separate the
3 warring parties? Are they part of the JCE, joint criminal enterprise?
4 No, they are not. Why? Because we return to the Prosecution's
5 central theme. It is okay if someone else does or promotes something,
6 like separation, but if you do the same thing and you are an ethnic Serb,
7 a member of the Bosnian Serb government, police, military, or a local
8 Bosnian Serb, then you are automatically guilty. You are then
9 automatically a liar if you say something else that is indicative of
10 following the law. You are damned with guilt that you cannot wash off
11 yourself because that guilt is made to define you by ethnicity and
12 membership in a legitimate military organ, rather than by your acts or
14 Vox magazine, if it were operating today, would probably react to
15 the Prosecutor's absurd assumptions by proclaiming: "Welcome to the
16 Fourth Reich."
17 There is much more context that the Prosecution narrative chooses
18 to ignore but for which there cannot be any question that Ratko Mladic is
19 not responsible for those things, and yet they happened, and they had a
20 profound effect on people and events in Bosnia-Herzegovina, and that
21 those uncontrollable contextual matters riled up people's emotions and
22 tensions and that they created a threat and a powder keg all over
23 Bosnia-Herzegovina. And that subsequent efforts to try and deal with the
24 same cannot thus be viewed in a vacuum but they must be viewed in a
25 context and understood according to the context.
1 Can we have another slide. Thank you.
2 Ratko Mladic is not a monster. He was a soldier, defending
3 against a monster. That monster being the Islamic war machine and terror
4 let loose by Alija Izetbegovic and his calls for Jihad, and eventually
5 that Islamic war machine was supported by outside help, per the
6 Prosecution's own expert, General Richard Dannatt, the US Pentagon
7 co-ordinated NATO air-strikes to coincide with Bosnian Muslim and Bosnian
8 Croat military attacks to defeat Serbs. And we have it at transcript
9 page 19188, line 19 to 19194, line 8.
10 That is why Ratko Mladic is here today. Because he is a Serb and
11 dared stand up against Alija Izetbegovic's Jihad which was covertly
12 backed by the forces of NATO.
13 Now I want to shift gears to give you a brief overview of what we
14 will be presenting as our case theory before I hand over to Mr. Ivetic.
15 And I will try to be brief and those things will be developed later. The
16 Defence does not deny that unfortunate and opportunistic crimes occurred,
17 but those in no way can be connected to General Ratko Mladic. And in any
18 event, not every crime alleged by the Prosecution actually occurred as a
19 crime in the manner alleged. This case still has the Prosecution seeking
20 to hold Ratko Mladic guilty for events that have been proven under the
21 evidence to have been the acts of the other side, Alija Izetbegovic's
22 forces, including various shellings in Sarajevo, like Sirokaca, Markale,
23 et cetera.
24 This case still has the Prosecution seeking to hold Ratko Mladic
25 guilty of destruction of cultural and religious buildings based on
1 adjudicated facts and scant witness testimony, when the Prosecution's own
2 expert, Riedlmayer, has confirmed that some of these mosques did not
3 exist or were damaged or destroyed before the war. It is all an insult
4 to the criminal justice system to be bringing charges like this.
5 Ratko Mladic arrived as VRS commander of the Main Staff on the
6 12th of May, 1992. Predating that were many contextual events that gave
7 rise to a legitimate fear, a legitimate threat, from armed Bosnian Muslim
8 military forces sponsored by the SDA that caused a war situation to
9 develop and explode, in which Ratko Mladic had no role. Many events in
10 the municipalities, even crimes occurred and were pursued by others,
11 before Ratko Mladic came to the VRS, and without any involvement of him,
12 yet this Prosecution wants to hold him responsible.
13 As to the interactions with others, the Prosecution has
14 improperly recast these as illegal and secret criminal conspiracies where
15 Mladic agreed to the JCE. But another interpretation is more logically
16 available because these are really legitimate meetings of state organs to
17 discuss self-defence and difficult and complex situations caused by the
18 war. The Prosecution, by attempting to define as a JCE member every
19 Bosnian Serb civilian, police and military member, has attempted to thus
20 redefine every legitimate meeting as a criminal meeting. That is not
21 appropriate. At those meetings, Ratko Mladic would speak in support of
22 moderation and efforts for all persons of the Republika Srpska to live
23 peacefully irrespective of ethnicity. The Prosecution would try to hold
24 General Mladic responsible for the actions undertaken by other
25 structures, such as police, Crisis Staffs, and other government organs,
1 over which he had no authority and of whose actions he would not be
3 At the VRS, Ratko Mladic, when he arrived, had drastic shortages
4 of personnel, shortages of professional officers and junior officers, and
5 had to deal with conflicting interests and conflicting notions of how to
6 wage a war. He, along with all other VRS officers, were excluded from
7 the Supreme Defence Command or Council that made binding decisions for
8 the RS. Further, civilian leaders declined to declare a state of war
9 which further limited the powers of the army and General Mladic and his
10 military commanders to act like an army despite the war conditions.
11 Facing manpower shortages, sanctions, and an enemy that
12 outnumbered him, General Mladic was further limited in terms of his
13 abilities to effectively wage a defensive war. He did his best, trying
14 to instill discipline, honour, and courage in his soldiers. It is
15 instructive that not a single Prosecution witness who was a former
16 officer of the VRS had anything negative to say about General Mladic and
17 did not implicate him in any illegal orders. Not a single one. Even
18 Momir Nikolic's evidence can only claim that General Mladic gave a
19 dismissive hand gesture, not that he ordered any criminal killings.
20 Surely if General Mladic were guilty of leading a criminal campaign, at
21 least one insider witness would have something bad to say about him as a
22 military officer. That is the man before you today as an accused.
23 In the municipalities, the Prosecution sees separation of peoples
24 and a military campaign directed against civilians to drive out or
25 destroy all non-Serbs. But there is a more logical alternative under the
1 evidence. Namely, the efforts in line with the Cutileiro Plan that were
2 undertaken together by Muslims and Serb leaders in the municipalities to
3 split the police and split the municipality, which were intended to
4 prevent not foster war. Unfortunately, the Bosnian Muslims abandoned the
5 efforts for peace and instead initiated attacks in municipalities and
6 refused to disarm after same. The presence of armed Bosnian Muslim
7 forces that did not disarm created a security risk, especially with
8 further attacks initiated by them. These attacks and the threat of an
9 escalated combat situation with continued fighting led many persons, both
10 Serb and non-Serb alike, to leave the area to seek more security. The
11 lack of jobs, resources, utilities, and food likewise made persons leave.
12 Still others left because of orders by the SDA party or ABiH to leave an
13 area so they could attack it or to go to another area to mobilise and
14 strengthen ABiH forces. Persons also left when legitimate combat was
15 undertaken to disarm these Bosnian Muslim military units and clear areas
16 of hostile forces. Military actions were aimed at armed hostile forces
17 and meant to separate these forces from the territory to neutralize their
18 threat. None of this leads to the conclusion that General Mladic is
19 criminally responsible for departures of the population or for legitimate
20 military actions against hostile opposing forces.
21 That military actions were tied to a legitimate military propose
22 [sic] and not genocide against non-Serbs is best illustrated by the fact
23 that non-Serbs who disarmed and were not hostile stayed in municipalities
24 and not -- often were protected by the very VRS. Non-Serb personnel
25 served in the VRS and were sought to be mobilized into VRS. Where other
1 actions including crimes were undertaken by renegade individual VRS
2 personnel of their own accord or non-VRS organs, such as police or
3 paramilitaries, such actions were not under the authority of General
4 Mladic and he cannot be criminally responsible for the same. There is no
5 linkage between the actions and General Mladic.
6 In the chaos of war in the municipalities, various detention
7 facilities were set up, but most of them were operated by non-VRS organs
8 and the accused had no role in their operation or function, and thus
9 cannot effect conditions. Incidents, like the so-called Room 3 massacre
10 at Keraterm, were reported as legitimate casualties from an attempted
11 escape by the police, and thus could not be known to the accused as
13 As to VRS-run facilities, there were only two: Manjaca and
14 Batkovic. As to each, the VRS orders from General Mladic were to treat
15 POWs in accord with the law. Shortages in resources and supplies made it
16 difficult to meet dietary and other requirements 100 per cent and the VRS
17 asked for assistance from humanitarian aid agencies. Prisoners were
18 registered with ICRC and known crimes against them were punished and
19 sought to be prevented. The VRS and General Mladic had a policy of
20 seeking always to exchange prisoners with the other side and worked with
21 various humanitarian organisations to make that happen. None of this
22 leads to the conclusion that General Mladic is criminally responsible for
23 treatment in detention facilities. Again, there is no linkage with
24 General Mladic.
25 As to Sarajevo, contrary to the Prosecution's false image of the
1 SRK as an aggressor against an undefined [sic] and vulnerable city of
2 civilians, the evidence supports the alternative conclusion that
3 legitimate and proportionate military actions were taken against a
4 defended city that had a significant number of ABiH troops interspersed
5 with civilians. The SRK was essentially an army of local residents
6 inexperienced in combat who were cobbled together by necessity and held
7 as one by the small number of professional officers in their midst and
8 the desire to protect their homes and their families from what they
9 perceived as a rising tide of Bosnian Muslim fanaticism and hostility
10 unleashed by Alija Izetbegovic.
11 The SRK and VRS had little desire to take Sarajevo. Their
12 objectives were simpler than that: They wanted to feel that they would
13 be safe in a territory that valued the rights of all peoples equally, in
14 which they were free from the threat of subjugation. Their war was one
15 of self-defence. That is how General Mladic understood the situation
16 around Sarajevo, and that is how General Mladic intended to lead the VRS
17 around Sarajevo, in a war of self-defence.
18 In the context of Sarajevo, it is important to note that the
19 legitimate combat ensued in and around Sarajevo between 1992 and 1995 was
20 not meant to terrorise. The Serb political leaders and General Mladic
21 negotiated cease-fires and held diplomatic talks for the resolution of
22 the conflict, but those on the ground felt little relief. Cease-fires
23 were constantly violated by Army of Bosnia-Herzegovina, who also ignored
24 weapons exclusion zones and did not demilitarise Sarajevo. Weapons were
25 illicitly shipped in through humanitarian convoys for the ABiH. The SRK
1 were attacked by ABiH mobile mortars that evaded their defensive return
2 fire. They were harassed by ABiH artillery positions in civilian areas,
3 sniped at from high-rise buildings, and despite their mounting
4 frustrations and the death of civilians located within the territory they
5 were trying to protect, they were constantly told by their superiors to
6 hold fire unless absolutely necessary. It became a question of how much
7 they could tolerate before it became absolutely imperative to return
9 The Army of Bosnia-Herzegovina fired in provocation and to
10 inflict damage to the SRK from amongst Sarajevo's residential
11 neighbourhoods and from their hiding places in residential tower blocks
12 and the grounds of the local hospitals knowing that this limited the
13 ability of the SRK to return fire and defend themselves and could be used
14 to further fuel propaganda efforts of the ABiH to portray Serbs as
15 ruthless villains. It was a constant balancing act for the SRK to
16 determine exactly what force was required to halt these attacks and how
17 much was too much and would unduly impact on the local civilian
18 population in which the Army of BiH had hidden themselves. The VRS and
19 General Mladic constantly appealed to the UN to act according to its
20 mandate and take action against Army of BiH violations of cease-fires and
21 violations of the rules of war, but to no avail.
22 These frustrations were borne out of the negotiating table and in
23 meetings with internationals, driving many, including the accused, to
24 make threats and adopt hard-line positions they might otherwise have
25 avoided, but always with the aim of trying to obtain a permanent
1 cessation of hostilities rather than to enflame the war. These
2 frustrations only grew as the international community criticised and
3 protested and punished the actions lawfully undertaken by the SRK,
4 wilfully ignoring the actions of the Army of BiH, both lawfully
5 undertaken or otherwise, including the deliberate sniping and shelling of
6 their own people, for which they often imputed blame upon the SRK,
7 knowing that they could and would get away with it. It seemed to many at
8 the same time like a masterful piece of manipulation of the international
9 community by the Bosnian leadership. The evidence now reveals that,
10 indeed, Alija Izetbegovic chose to sacrifice the lives of his own people
11 in staged massacres which he blamed upon the VRS for sympathy and to get
12 outside intervention on his behalf. General Mladic cannot be criminally
13 responsible for the same.
14 The international community asserted, and continues to try to
15 assert, that Sarajevo was proclaimed as a safe zone. This is, quite
16 frankly, a joke. The Muslim side launched 28 major offensives on the
17 Serb positions within Sarajevo, as well as countless small offensives.
18 Countless. Every day. Sarajevo was definitely a defended city and not a
19 demilitarised zone.
20 As to Srebrenica, the demilitarization of that locale was
21 violated and not adhered to by both the Army of Bosnia-Herzegovina forces
22 of Naser Oric and the UN personnel who turned a blind eye to the same.
23 The presence and attacks of Oric's forces transformed Srebrenica into a
24 defended city rather than a demilitarised zone. The VRS Krivaja 95
25 action was a legitimate military action against a hostile enemy force, as
1 was ambush and combat with the column of Srebrenica's military forces
2 that tried to break through to Tuzla. There was no forcible transfer of
3 the civilian population from Potocari. If the transfers from Potocari
4 were part of a criminal plan, then those that planned it would be guilty.
5 In this case, it was the civilian and military leadership of the
6 Srebrenica Muslims themselves who first declared to leave, and then it
7 was the UN that ordered Colonel Karremans to ask General Mladic to permit
8 and assist in the evacuation in order to prevent a humanitarian disaster.
9 To hold General Mladic criminally liable for a humanitarian action
10 ordered by the ABiH and Bosnian Muslim civilians and ordered -- requested
11 by UNPROFOR would be a gross perversion of justice that would forever
12 tarnish and blemish the reputation and legacy of this Tribunal and
13 threaten the very concept of international law and justice.
14 As to the unfortunate killings that occurred in Srebrenica, the
15 Defence does not deny that some persons were killed in opportunistic and
16 uncontrollable acts of private revenge by members of the MUP, by locals,
17 and even renegade members of the VRS security organs. These killings
18 were not ordered by General Mladic and were not committed in direct
19 violation of the express orders -- and were committed in direct violation
20 of the express orders of General Mladic who was recorded at several
21 instances and by multiple persons as having decreed that all POWs would
22 be exchanged with the other side. The Prosecution expert, Richard
23 Butler, confirms that he has found no express orders from General Mladic
24 for the killings. That is because General Mladic did not order them and
25 was not present when they occurred. General Mladic cannot be criminally
1 responsible for the same.
2 Now as to these killings, it must be understood that not all the
3 deaths that are claimed by the Prosecution are the result of killings
4 that were criminal in nature. The Prosecution does not care to
5 differentiate between criminal deaths and those killed in a legitimate
6 fire-fight after detainees at Kravica overpowered police guards and took
7 their weapons, killing and wounded these guards, which precipitated the
8 revenge killings. The Prosecution, likewise, fails to acknowledge its
9 own expert, Butler, its own body of witness statements taken by
10 themselves, and the fact that Army of Bosnia-Herzegovina itself shows
11 significant number of combat casualties of the column, which numbered up
12 to 6.000 according to the Muslim side. Rather, it includes those deaths
13 to boost the number of victims from the criminal killings. Further, the
14 Prosecution tried to ignore ABiH evidence and its own investigation that
15 indicated persons exhumed from Srebrenica mass graves were casualties
16 that had become deceased in the years prior to 1995 and thus could not be
17 attributed as victims of crimes in 1995. Lastly, the Prosecution relies
18 on unreliable demographic combinatory tactics to get a targeted result to
19 further boost their number of victims. When we say that, we mean
20 Ewa Tabeau.
21 It was revealed at trial that 70 per cent of Prosecution's
22 victims exhumed from Srebrenica mass graves were, in fact, registered
23 soldiers of Army of Bosnia-Herzegovina. Given the lack of care taken to
24 determine the truth forensically and serious questions raised about the
25 Prosecution's own forensic investigation into how they died, including
1 evidence that those leading the OTP and PHR exhumations comprised --
2 compromised that work - William Haglund, by destroying clothes that could
3 have told the military status of a body, and Dr. Kirschner, by forcing
4 pathologists to change cause of death in autopsies - it is impossible to
5 determine with certainty how many of those persons were potentially
6 killed in combat to the degree required to be reasonable doubt standard.
7 This is especially true given that other questions were raised by
8 forensic work and that the reliability of those findings. General Mladic
9 cannot be criminally responsible for the same either.
10 As to the claim of hostages, the Defence again must point out
11 that under the full context of the factual evidence it is clear that UN
12 personnel were detained as POWs and combatants after the UN engaged NATO
13 and both came combatants in striking Serb positions, using UN personnel
14 as the means to identify targets and direct the fighter jets to the same.
15 The only orders of General Mladic were to treat these persons in accord
16 with the laws as POWs. The evidence is not, for the most part -- the
17 evidence -- sorry. The evidence is that, for the most part, VRS
18 commanders followed General Mladic's orders and kept those individuals in
19 proper POW conditions. In a few isolated incidents, renegade persons,
20 and persons unknown and not acting pursuant to VRS orders, took excessive
21 measures with detained UN personnel. In all instances, the actions of
22 General Mladic were to respond by ordering subordinates to secure these
23 same men in VRS custody and they were thereafter treated in accord with
24 POW positions [sic].
25 Thus General Mladic cannot be held responsible for the acts of
1 persons not following his orders but engaged in personal acts, especially
2 when he undertook to remove those same UN personnel from harm's way and
3 have them secured as POWs with protections afforded as flowing therefrom.
4 Not one person was harmed and, moreover, everybody was released shortly
6 As a further overview of what the Defence has shown in detail in
7 the final brief and that we will in more detail today and the next days
8 bring out in court, we must stress that the Prosecution must rely on
9 unbelievable and compromised evidence to try and attain its burden to
10 convict General Mladic. They made a deal with the devil as to
11 Srebrenica, with Momir Nikolic, who tried to pass off his own role in
12 crimes to General Mladic because he wanted to reduce his sentence and be
13 released early. And he was rewarded for this by being released early.
14 But the flaw in Nikolic's entire self-serving story is the concession
15 that he never received any explicit orders to commit killings of
16 Srebrenica POWs before he commenced to orchestrate the same. This means
17 neither from General Mladic nor Colonel Blagojevic, his superior.
18 Nikolic is present everywhere and has blood up to his elbows. Blagojevic
19 and Mladic cannot be placed anywhere near the killings. General Mladic
20 cannot be held criminally liable for the criminal acts of Momir Nikolic
21 and those he conspired with to kill Srebrenica POWs, in violation of
22 General Mladic's orders and without his knowledge.
23 The Prosecution likewise turns to a body of purported radio relay
24 communications -- communications intercepts that defy technology, common
25 sense and logic. On the one hand, the most important conversations
1 always were preserved by recording them. On the other hand, none of the
2 alleged important conversations alleged of General Mladic can be found to
3 have been recorded. One of the main radio intercept operators denounced
4 by the head of the unit and by official records as having not worked
5 there until 1996, one full year after the alleged intercepts were heard
6 and written down by him. Intercept records were not given to the OTP
7 until many years later. Some in books bear indicia of a date of
8 publication after 1995 which defies logic. This questionable evidence
9 cannot rise to the level necessary to convict anyone.
10 The Prosecution also relies on propaganda and other evidence
11 without regard for the potential bias of that source, including
12 international media and members of international organisations, such as
13 UNPROFOR and UNMOs. That there was bias amongst some of the members of
14 UNPROFOR and UNMOs has been demonstrated and confirmed by several former
15 UN officers who have testified at this trial. Thus no one, let alone
16 Ratko Mladic, should be convicted based on evidence that comes from such
17 sources prone to bias.
18 Before I turn over these duties to my colleague Ivetic, let me
19 just stress that as more and more evidence has come in, it has become
20 more and more clearer how much the Prosecution has twisted and
21 misrepresented facts. This Defence was ready and sought to provide even
22 more evidence and witnesses that we believe would have likewise shown
23 that Ratko Mladic cannot be guilty of the things he is charged with, but
24 we were prevented by this Chamber from doing so, and we believe this was
25 done unfairly, since we had not used up the time allocated to us. That
1 error by this Chamber can be rectified only with an acquittal. So I urge
2 you to correct that mistake.
3 Now Mr. Ivetic will probably after the break continue with the
4 remainder of our submissions.
5 Thank you, Your Honours.
6 JUDGE ORIE: Thank you, Mr. Lukic. Just to have matters
7 perfectly from a procedural point of view, as you may remind, there was a
8 discussion about Mr. Ivetic addressing -- in the 98 bis hearing to
9 address the Court. I think at that point in time there was an issue as
10 to whether he could address the Court in the absence of counsel, but then
11 in 98 bis, it was established that Mr. Stojanovic as co-counsel was
12 there. So under those circumstances, Mr. Ivetic addressed the Court
13 though not being counsel. I think we are in a similar position now, that
14 both lead counsel and co-counsel are present so that there -- I'll just
15 check that with you, Mr. Tieger, there's no problem in Mr. Ivetic
16 presenting this part of the final argument.
17 MR. LUKIC: Our intent is only not to bother everybody with my
18 accent, so you'll listen to proper English.
19 JUDGE ORIE: Well, it's a very charming accent, Mr. Lukic.
20 Then I think we'll first take a break, and resume at ten minutes
21 to 12.00.
22 --- Recess taken at 11.29 a.m.
23 --- On resuming at 11.52 a.m.
24 JUDGE ORIE: Before we continue with hearing the final argument,
25 I'd like to raise one matter, Mr. Lukic, which is the following. The
1 Defence has filed two motions seeking admission of evidence under
2 Rule 85; that is, related to sentencing.
3 The first motion deals with three statements; the second one with
4 one only. The first motion, in the response by the Prosecution, there
5 was at the very end a kind of a counter proposal if the Chamber would
6 allow -- would admit those three documents, the Prosecution then seeks to
7 have one document related to the evidence you are presenting to be
8 admitted as well.
9 The Chamber wonders whether you are going to respond to that
10 proposal as contained in the response by the Prosecution, whether you
11 want to respond to that or whether you leave it in the hands of the
13 [Defence counsel confer]
14 MR. LUKIC: We will respond, Your Honour. We will respond.
15 [Trial Chamber confers]
16 MR. LUKIC: Today.
17 JUDGE ORIE: So the response will then deal with the
18 Prosecution's suggestion that we would then have to allow
19 another document as well --
20 MR. LUKIC: Yes, Your Honour.
21 JUDGE ORIE: Yes. And if I made any mistakes between the first
22 one and the second one, which was first and which one second, I'm clear
23 the one was about three, the other one was about one, and it's only the
24 Prosecution positions in relation to the three that they made this
25 counter proposal. If ...
1 Mr. Tieger, is that ...
2 MR. TIEGER: The order was also correct, Mr. President.
3 JUDGE ORIE: Order was also correct. Then finally I perhaps
4 spoke even a bit too early because we only received a courtesy copy. It
5 may be that your response has been filed to the second single motion
7 MR. TIEGER: Yes, both responses were filed yesterday.
8 JUDGE ORIE: And that's on the record as well.
9 Then we'll hear later you from.
10 Mr. Ivetic, having dealt with these practical matters, please
11 address this Chamber with your part of the final argument.
12 MR. IVETIC: Thank you, Your Honours.
13 We have the first slide already on the screen.
14 And, Your Honours, before I begin, I would like to point out that
15 we have filed under protest and subject to a reservation of rights a
16 final trial brief which consists of 933 pages where we have performed an
17 in-depth analysis of the many different ways that we believe the
18 Prosecution has failed to meet the burden of proof and in which the law
19 and evidence mandates that conclusion. We will get to burden of proof in
20 a little bit, but first I want to just acknowledge that we will not be
21 repeating nor addressing everything that we have said in our brief, and
22 that should not be misconstrued as a waiver of anything, because often we
23 are just standing on those complete and detailed submissions.
24 I feel I have to be very clear and specific because I heard the
25 Prosecution Monday throwing around words like "admission" for things that
1 don't fit such a legal definition. So I want to be extra careful and
2 clear. And we will get to that admissions issue later too.
3 Now, the Prosecution has taken issue with some of the things we
4 have said in our final brief during their closing arguments, and I might
5 not get to address each and every single one of those things here orally
6 the next few days, and I want to tell you right now that such omission
7 also is not to be construed as a waiver of our argument or admission that
8 the Prosecution is correct.
9 The Prosecution is incorrect in their analysis, and they
10 misconstrue and turn upside down the law on burden of proof. On Monday,
11 the Prosecution was talking about a lot of things that they say we didn't
12 prove in our final brief. The Prosecution says the Defence assertions
13 have not been proven and our Defence falls apart. It should be clear
14 under the law of this Tribunal that it is not our burden. We do not have
15 to prove the things in our final brief. We need only to establish
16 reasonable doubt for General Mladic, and if we have done so as to any
17 material element, you must find him not guilty. We see the Prosecution's
18 attempt to shift the burden of proof upon the Defence and a direct
19 attempt at manipulating and confusing the Court and court staff.
20 The Defence does not have such a burden in these proceedings. We
21 only have a burden as to the alibi in respect of Srebrenica. And
22 respectfully, the Prosecution stipulated to much of our alibi evidence so
23 I submit we met the burden as to that. That stipulation to this proven
24 alibi is clearly reasonable doubt by itself. That alibi is our only
25 burden. For the rest of the case, it is the Prosecution's burden to
1 prove each and every element beyond a reasonable doubt.
2 Why are they talking about our case instead of theirs? That
3 means that they've lost. Their case is that weak. The Prosecution tries
4 impose the burden on the Defence to hide the weaknesses of their own
6 The General Mladic Defence team rejects having a burden shifted
7 upon it to prove anything. General Mladic has always told me, "Danny, I
8 want you to seek out the truth," and that is all we are doing. We are
9 helping Your Honours determine the truth by testing and confronting the
10 Prosecution evidence and if they have met the requisite burden. They
11 want you to look through a pinhole at things out of context. We want you
12 to open your eyes and look at the whole of the evidence in a panorama.
13 If we could now go to the second slide.
14 I want to clarify and explain things for those that are mistaken
15 about the Defence having a burden of proof in these proceedings. Maybe
16 there was a misunderstanding of a comment by Your Honour, Judge Orie,
17 during the testimony of Pelemis, where you commented innocent people can
18 come to court to prove their innocence. You might remember that
19 Prosecutor McCloskey jumped up to try and correctly understand what you
20 meant, and that you clarified, Judge Orie, by saying:
21 "No, I think I emphasised that already earlier. But some people
22 who are charged before a court take the position that they'll defend
23 themselves by proving their innocence, whereas it goes without saying
24 that that's not what you have to do. But of course, you are not
25 forbidden to do that. But even if you have not proven your innocence and
1 if the prosecution has not proven your guilt, then you still should be
2 acquitted despite the fact that you have not proven your innocence
3 because that's not required for an acquittal. Is this understood by
4 everyone sufficiently so as to avoid any confusion for the future?"
5 I know that Mr. McCloskey and I were listening that day and we
6 are not confused, but I fear some others in this courtroom, perhaps on
7 his side or perhaps in the public might be confused, and I hope that your
8 explanation clarifies things and leads in Your Honours' review of the
9 Prosecution's submissions. Please, Your Honours, my client, the general,
10 would like to have you stay true your promise to acquit him even if we
11 don't prove his innocence, since the Prosecution fails to meet their
12 burden of proving his guilt.
13 What I will now do is highlight certain things and direct
14 attention to certain questions raised by the evidence and the submissions
15 of the Prosecution which we submit have bearing and relevance to the
16 determination of whether the reasonable doubt standard has been met and,
17 if so, to what parts of the Prosecution case.
18 Now, it is my professional duty, my obligation, to stress to you
19 and to the Prosecution and to the public watching these proceedings, and
20 to my client, what the burden of proof means and how the evidence is to
21 be assessed. I submit that the Prosecution's closing arguments, which
22 have talked of why you should side with their "better" conclusions rather
23 than those obvious exculpatory ones that can be drawn from the evidence,
24 are actually misstating the standard of the burden of proof. As to the
25 better conclusions, we had Mr. Traldi at transcript page 44.366 to -7
1 talk about a better definition of "liberate."
2 Your Honours, if two alternative and reasonable conclusions exist
3 under the evidence, you are not allowed to take the Prosecution's
4 "better" version, you are compelled to acquit. The second you are forced
5 to speculate, you shall also conclude that there is reasonable doubt.
6 If I can have the next slide.
7 So, please, let us take a look at this and understand this
8 accurate representation of the legal levels of burden of proof.
9 Innocent until proven guilty. Proof beyond a reasonable doubt.
10 These are not just cliches or catch phrases. They are meaningful
11 standards and burdens imposed on the Prosecution to avoid wrongful
12 convictions. Can you think of anything worse than being wrongfully
13 charged and convicted of a crime. Most enlightened legal systems in the
14 world are founded on the basic premise that criminal convictions have
15 such a terrible impact on a person's life and liberty. That is why we
16 require the highest level of proof in order to find a person guilty of a
17 crime. When you are charged with a crime, from the simplest offence all
18 the way up to genocide, the Prosecution must prove your guilt beyond a
19 reasonable doubt.
20 The fact that General Mladic has been arrested, confined, or
21 indicted for criminal offences should not give rise to any inference of
22 guilt at this trial. In fact, we should all agree that he sits here
23 innocent before us right now. The fact that the media and international
24 negotiators or Prosecution witnesses have made opinions about
25 Mr. Mladic's guilt should make you even more circumspect and cautious and
1 not sway you as to any inference of guilt. For instance, the Prosecution
2 in closing has recited to you improper legal conclusions of international
3 witnesses on matters of the crimes alleged clearly attempting to invade
4 your legal domain. You must reject the arguments that because a UN
5 official or international negotiator or journalist concluded that
6 Ratko Mladic was in charge or that he was engaging in ethnic cleansing,
7 or any other legal conclusions of criminal responsibility. At transcript
8 pages 44327, 44481, and 44327, the Prosecution made such submissions in
9 their closing. That is not how the Prosecution proves their case. That
10 is not how the burden of proof is satisfied.
11 Your Honours, it is not enough to just say that the Prosecution
12 must prove beyond reasonable doubt that the accused is guilty. The
13 accused is presumed under Article 21(3) to be innocent at all times until
14 proven guilty. General Mladic is innocent. Until you get to the very
15 tip-top of the pyramid, General Mladic is innocent. And again the law
16 says General Mladic is innocent today. You must continue to treat
17 General Mladic as innocent regardless of what the media says, regardless
18 of what the Prosecution argues, because what they and I say today are
19 only arguments, not evidence.
20 What is their story to get around the obvious lack of actual
21 evidence. It is their story. Does it make sense? Or does it leave you
22 questioning. If you are questioning, you must acquit. Even if not
23 questioning their story, that still isn't enough because their story
24 isn't evidence.
25 The Prosecution must establish by the evidence each and every
1 element of the offences beyond a reasonable doubt. That is, to the top
2 tip of the pyramid. And the Trial Chamber must resolve every doubt in
3 favour of the accused with the principle of in dubio pro reo. That is
4 what the Delic Trial Judgement says at paragraph 23.
5 Probable cause which we see on this pyramid is what was required
6 for Mr. Mladic to be arrested, and that's near the bottom of the pyramid.
7 That is where we are today. And that is not enough for a conviction.
8 The Prosecution's evidence must raise the level of certainty first to
9 preponderance, and that is generally explained as proof supporting a
10 story such that it has a "greater than 50 probability" of occurring. And
11 if the evidence takes you there, that may be enough for the public and
12 news media to convict or for civil charges in civil cases, but it is not
13 enough in a criminal case, and you must acquit.
14 And then if the evidence gets you up to the next level, clear and
15 convincing, that still mandates an acquittal because it is not enough.
16 Another way to look at that level is when someone tells you: There are
17 multiple interpretations available but take our version because it is the
18 better definition. And, again, that's exactly what the Prosecution were
19 telling us this past Monday.
20 Your Honours, they are arguing for the wrong standard.
21 Apparently they don't understand that clear and convincing is not enough.
22 Any time that there are other conclusions available under the evidence,
23 it doesn't matter which is better, sounder or more likely, you must
24 acquit. Because only when you get to the very tip-top of the pyramid,
25 when the conclusion of guilt is the sole and only conclusion with no
1 other interpretations in evidence, only then can you convict. Just the
2 tip and only the tip. Any plurality of explanations must mean an
3 acquittal. If they push anything more than just the tip, you have to
4 shake your head and say: No, no, game over, you must acquit.
5 And so why was the Prosecution arguing for a lower standard?
6 Because they're unsure of their evidence? They know they cannot attain
7 the highest level of burden of proof? I know Your Honours were
8 listening. And if you missed it, please go read the transcript where the
9 Prosecution told us essentially that you must acquit General Mladic
10 because they said you have to listen to their better definition. They
11 cannot remove all doubt and get to the top of this pyramid with the
12 evidence they have.
13 So every time in the closing or the final brief when the
14 Prosecution says there is a better interpretation, or they say that
15 something exculpatory General Mladic has written is a lie, that he is
16 covering for some other real intention, that establishes reasonable
17 doubt. During trial, I hope you will recall how many times we would have
18 to call up in re-direct the same document used in Prosecution cross and
19 then direct to the very next line or paragraph which was exactly the
20 opposite or contrary to what the Prosecution had just said the document
21 proved. If the Prosecution is misstating or misrepresenting the
22 evidence, that is an acquittal.
23 So seemingly the Prosecution has made our job easier and
24 Your Honours'. You don't have to deliberate. They conceded on Monday
25 that their case is not up to the top of the pyramid because they argued
1 for you to disregard other conclusions to go with the "better" one. That
2 is reasonable doubt. Under the law, you can deliberate together right
3 now and enter an acquittal just based on what the Prosecution has said.
4 That amounts to an admission. That is an admission on the part of the
5 Prosecution, a real admission, not this fantasy definition that we heard
6 from the Prosecution that went too far and wants to try to sneak up to
7 the top of the pyramid. At transcript page 44.408, when they told us
8 that Pyers Tucker's testimony is not hearsay but rather an admission of
9 Mr. Mladic. If Pyers Tucker heard directly from Mr. Mladic out of court
10 in B/C/S and came to court to tell us what Mladic said, that is the very
11 definition of hearsay. If Pyers Tucker heard from a translator
12 second-hand what Mladic told the translator in B/C/S all out of court and
13 if Tucker came here to testify as to that, then it is a textbook
14 definition of double hearsay. Although admissible, it would still be
15 assessed for its weight and, respectfully, it would be a low weight. The
16 Prosecution is trying to sell you on the notion that this is an admission
17 and not hearsay. The Prosecution dares to take it upon themselves to
18 change the law and definitions under the law to suit what the weaknesses
19 of this case are, all to get a wrongful conviction, by hoping the Court
20 will adopt a lesser degree than reasonable doubt.
21 The case law is very clear. The test when inferring intent from
22 the acts of an accused is that the inference has to be the "only
23 reasonable inference available." The Vasiljevic Appeal Judgement,
24 paragraph 128.
25 All inferences from circumstantial evidence must be the only
1 reasonable conclusion available. That is what you said, Judge Moloto, in
2 the Martic Trial Judgement, paragraph 24.
3 If there is any other reasonable interpretation of the evidence
4 against the accused other than guilt, he must be acquitted. That is what
5 you said, Judge Orie, in the Oric Judgement, paragraph 15, and in the
6 Haradinaj Judgement, paragraph 7.
7 These are not just my words that I am telling you that you have
8 to follow. They are your words. The Prosecution is trying to change
9 your words and your law, your holdings. Don't let them do that.
10 JUDGE ORIE: Mr. Ivetic, I have some problems in attributing to
11 individual Judges a judgement which is delivered by a Chamber, and apart
12 from that, in the Oric judgement, my role there, I don't know what you
13 meant there.
14 MR. IVETIC: Did I say -- I meant Haradinaj, Your Honour. I must
15 have misspoke if I said Oric. I meant Haradinaj.
16 JUDGE ORIE: Still then, Haradinaj was a Chamber judgement.
17 There was no separate opinion or anything. So, therefore, I take it that
18 you have referred to us as persons as a member of the Bench, that you're
19 referring to the judgement of the Bench --
20 MR. IVETIC: Yes.
21 JUDGE ORIE: -- which is not necessarily always the same as a
22 personal judgement. I just -- for very formal reasons, I put this on the
23 record. But you are rightly drawing our attention to judgements
24 delivered by Chambers of which we were part.
25 MR. IVETIC: That's correct, Your Honours --
1 JUDGE ORIE: And also luckily the right decisions and not the
2 Oric decision. Please proceed.
3 MR. IVETIC: That's what I was just about to clarify, the one
5 Now, if we could go -- if we can actually -- well, I will be
6 skipping the next slide, but we don't need to go to the next one after
8 The Prosecution is trying to re-write and change the rules and
9 the law in order to argue for a conviction. We all know it is the most
10 difficult burden to get to the tip of the pyramid. We need to trust that
11 Your Honours value every person's life and liberty so highly that you
12 will make sure that my client is not sent to spend the rest of his days
13 in prison for a crime he may not have committed. That is what is at
14 stake here. The ability of Mr. Mladic to go home, to spend time
15 peacefully with his loved ones around him and then eventually to die at
16 home, surrounded by those that he loves, not to spend the rest of his
17 days in a concrete cage in jail. Society says you have to be absolutely
18 sure that the Prosecution case has nailed the guilt before you send
19 someone to die in prison.
20 We have to treat everyone the same. Ratko Mladic does not get
21 less rights because he is Ratko Mladic. Due process says you must treat
22 Ratko Mladic as you would want to see one of your loved ones, like a
23 member of your family treated if accused of a crime. If you would not
24 want to see a family member convicted based on the little evidence that
25 we have here, then you must acquit Ratko Mladic too.
1 Mr. Tieger and Mr. Traldi made no fewer than 98 references and
2 allegations against President Karadzic in what was supposed to be the
3 first day of the best case they had against General Mladic. And, by the
4 way, the Defence would like to stress that the Prosecution misrepresents
5 what -- misrepresents that our final brief is trying to pass guilt onto
6 Karadzic. In fact, we have taken the position that the Prosecution has
7 not proven any of the JCEs existed at all and that means neither
8 Karadzic, Mladic, nor anyone else is guilty.
9 In our brief, what we have done is to analyse the evidence to
10 demonstrate even if we take the Prosecution's case at its highest, and
11 even if arguendo the allegations against Karadzic or others are valid,
12 there would be no support for naming Mr. Mladic as a member of that
13 putative JCE. Mladic's acts and deeds argue against any involvement in a
14 JCE. That is why the bulk of the Prosecution's JCE allegations centre
15 around statements made by other persons.
16 Why does Mladic have to be guilty by association? General Mladic
17 may have been an island of code and honour amongst despots. He may be to
18 Serbia what General Patton or General McArthur are to the United States.
19 He was a soldier's general. He was a general caught between the
20 proverbial rock and a hard place, tasked with the ultimate catch-22, a
21 truly impossible mission. He did his job to defend his people and
22 country as a soldier should and tried not to get involved in politics.
23 If they already have Karadzic and these other people they named who have
24 been convicted, each of them able to effectuate the crime on their own,
25 why is Mladic necessary? In fact, the very convictions of others provide
1 reasonable doubt, an alternate theory for guilt and plausible deniability
2 for General Mladic.
3 If we can go to the next slide and have that ready.
4 The Prosecution asks you to put on blinders. They would prefer
5 you look at the world through a peephole. We heard Mr. Tieger talking
6 about Srebrenica, and he talked about two things that he said proved
7 Mladic guilty. One of them is this TV interview that we now have on the
8 screen. It's P1147 and it was discussed at transcript page 44.329.
9 Where General Mladic still is going through Srebrenica to Potocari. He
10 still does not know what he will find at Potocari. He is still expecting
11 to find an enemy force waiting for him to do battle with. Is that the
12 "revenge" he is talking about? Engaging in a battle mano a mano, hand to
13 hand, against an armed combatant to finally and soundly defeat them?
14 This is a replay of a long-standing conflict where Naser Oric's Muslim
15 forces in Srebrenica had displaced the indigenous Serbian people from the
16 area by deadly raids on neighbouring Serb villages which resulted in
17 deaths of 1300 Serbs. Militarily defeating Oric's forces and allowing
18 the return of Serbs to their homes in the greater Srebrenica area would
19 be a fitting and honourable form of revenge. The evidence supports it,
20 and it is a reasonable inference, and, thus, it creates reasonable doubt.
21 Another interpretation is available. Maybe General Mladic meant
22 that the news of Srebrenica's quick defeat would be the shock that would
23 shake the spirit of the armija BiH in the rest of Bosnia and allow
24 everyone to get the complete cessation of hostilities to end the war and
25 the suffering, something which General Mladic had been trying to do in
1 the previous period, while the armija BiH was resisting and avoiding such
2 a cessation of hostilities and instead promoted continued war and
3 bloodshed. We have in evidence, for instance, P2190, P345, P190, and
4 transcript page 16801 for this.
5 That too is a legitimate form of "revenge" and according to
6 common sense is logical and available from the evidence. That, too, is
7 an acquittal. Maybe, just maybe, General Mladic is thinking about how he
8 will treat the civilians with kindness and dignity and thus take the
9 moral high ground over Naser Oric and show Serbs to be dignified, and
10 thus make the enemy forces irate and lose the support of the people and
11 media ...
12 [Defence counsel confer]
13 MR. IVETIC: This is also an admirable type of revenge. Such
14 revenge could swing the public perception of the ABiH's own actions.
15 This is a further example of reasonable doubt existing under the
16 evidence. The other recorded words of Mr. Mladic are consistent with
17 this in the manner that he spoke to civilians at Potocari, and we will
18 get to that next week. Most importantly, Your Honours, according to the
19 Prosecution final trial brief, at paragraph 1105, the JCE that they
20 allege to murder Srebrenica males did not even exist at this point in
21 time when Mr. Mladic made these words.
22 Now if we could go to the next slide.
23 And now let's talk about the words of Mr. Mladic at the third
24 Fontana meeting. The other day, Mr. Tieger on Monday showed us but he
25 only showed 30 seconds to prove involvement of Mr. Mladic in the
1 horrendous accusations that they were making. Why did the Prosecution
2 not want us to look at more than 30 seconds? Why take Mr. Mladic's words
3 out of context? Because their case is that weak and impotent where the
4 evidence needs to be overwhelming. What about that third Fontana
5 meeting? Let's bring that bad boy back out here and take a look at the
6 entire context of what was said.
7 And I would now ask for the slide to be clicked to play the
8 video. We're not getting sound. Is the sound back on?
9 [Video-clip played]
10 MR. IVETIC: Now, at this same Fontana meeting, we see Krstic
11 sitting next to Mladic, and we heard from the Prosecution about the
12 decision. Mr. McCloskey mentioned the two of them having dinner after
13 the meeting "in quiet, comfortable surroundings of a hotel," and called
14 it "decision-making time." That was transcript page 44.552.
15 Mr. McCloskey failed to bring out that the very same General Krstic, the
16 very next day, issued an order, and that's D290 in evidence, and at
17 page 4 that order says:
18 "The civilian Muslim population and UNPROFOR are not targets of
19 our operations. Collect them together and keep them under guard, but
20 crush and destroy armed Muslim groups."
21 And by the way, the dinner in "quiet, comfortable surroundings of
22 a hotel" was made up for the first time in closing. It is not referenced
23 in their final brief nor in the evidence, but we'll deal with that when I
24 make Srebrenica submissions next week.
25 Now let's take into proper context these words uttered by
1 General Mladic at the Fontana meeting and the two other meetings that
2 were prior. Again, at this point in time, General Mladic still does not
3 know where is the opposing military force, Naser Oric's 28th Division.
4 It is uncontroverted in the evidence that Oric's forces were stronger in
5 terms of number of soldiers than the forces that Mladic had at Srebrenica
6 and that they posed a serious risk. We have, for instance, D1448, D270,
7 transcript page 33467, transcript page 10908 to -10.
8 As confirmed by the Dutch soldiers whose evidence we heard, the
9 ABiH is hiding behind civilians as they often have the entire war in a
10 defended city concept. We will expand on defended city later. What this
11 all means is that under this scenario, this Hotel Fontana meeting can be
12 regarded as legitimate military threats against an enemy force instead of
13 the nefarious and twisted interpretation that Mr. Tieger has placed on it
14 and which Mr. McCloskey later was forced to support in closing.
15 If we can go to the next slide.
16 Now, you don't have to accept my word as to a more benign
17 interpretation of that meeting. Let's look to what Prosecution military
18 expert Richard Butler said. Butler watched recordings of all the Fontana
19 meetings, and he told you from a military standpoint there was nothing
20 improper and that these were legitimate albeit harsh words, since Mladic
21 believes that Oric's forces remain in Srebrenica, the 28th Division. And
22 Butler told us both Krivaja 95 and any attacks against the column of
23 28th Division soldiers in Srebrenica is fair game, legitimate combat.
24 There you have the citations to Mr. Butler's evidence. And, in fact,
25 Prosecutor McCloskey told you that the Krivaja operation is legitimate,
1 and I'm sure you will recall he multiple times said the attacks against
2 the column of the 28th Division is legitimate, just like his expert
4 Now, you must ask yourself: Are Mladic's comments at the Fontana
5 meeting capable of being understood as benign and logical under the
6 context of a legitimate ongoing military operation against a legitimate
7 military objective, like the continuation of Krivaja 95 or combat against
8 the column of the 28th Division? You bet. That's what the Prosecution's
9 evidence says. So what is Mr. Tieger doing? And why is Mr. McCloskey,
10 the other day, joining Mr. Tieger to disavow their own Prosecution
11 military expert? What is the counter expert or military basis that they
12 use to tell Your Honours that the 30 seconds they showed indicates a
13 criminal intent? The Prosecution is trying to change their evidence
14 because they realise the evidence they brought argues for acquittal.
15 If the Fontana speech is all you have, game over. Draft the
16 acquittal. This is reasonable doubt.
17 At Fontana, General Mladic was trying to save needless loss of
18 life, his soldiers' lives, the lives of any soldiers and the lives of
19 civilians that may be caught in the middle because the ABiH is using them
20 as human shields. And these are only words, not deeds. How dare the
21 Prosecution say otherwise given the standard and burden of proof. Again,
22 why can't General Mladic be a General Patton, a peacemaker, the good guy?
23 Is it because he's a Serb? If the evidence allows more than one
24 interpretation, you are forced by law to vote for the acquittal of
25 General Mladic.
1 Already on the first day of their closing, we were confronted
2 with some problems and some uncertainty, departures from the promises
3 made by the Prosecution in their opening statement and indictment.
4 Because the opening statements and indictment are promises that the
5 Prosecution made to this panel of Judges and also to the public that they
6 are supposed to serve the interests of and a promise to the Defence of
7 what their case was going to be, what they were going to prove, by the
8 evidence and according to the appropriate standard. The case they are
9 arguing now is not what they started out with and there have been
10 significant departures. Before we address the evidence and the Defence
11 arguments as to the counts, I would like to go through some of the
12 relevant legal standards these problems and uncertainties raised by the
13 Prosecution present.
14 And, Your Honours, it is important to look at what the
15 Prosecution promised and what they ended up presenting because it
16 demonstrates two things.
17 First, it demonstrates that the case they brought is not as
18 strong as the case they promised. This implicates the questions of
19 burden of proof that we have been talking about here today already.
20 Secondly, it relates to the candor of the Prosecution in phrasing
21 and framing the evidence and its presentation to you. If they have to
22 tweak the evidence and contort it to meet the burden, it really isn't
23 good evidence.
24 Now, I don't know why they do it and I don't have the time to go
25 through everything that was promised during the opening statements, but I
1 will raise two stark examples that should lead to the conclusion that
2 those promises should all be compared with what they actually led in
4 On Tuesday of this week, the Prosecution talked about the use of
5 snipers in Sarajevo as part of their allegations against General Mladic.
6 Let me now remind you what was said during the opening statements by
7 Prosecutor Dermot Groome on the same topic and this is a promise he made
8 to you.
9 If we could please have the next slide.
10 "Mr. Groome: Your Honour, I'm now going to talk about sniping.
11 "Sniping played a different role in the campaign of terror
12 against Sarajevans. The noisy imprecision of the modified air bombs was
13 in contrast to the lethal silence of the sniper's bullet. Sarajevans
14 would hide behind buildings and shipping containers, gathering the
15 courage to dash across a street where others had felled before.
16 "In silent perches around the city, VRS soldiers waited in
17 vantage points above the tram line, above paths civilians had to travel
18 to get food, water, fuel for heat, waiting silently, finger poised on the
19 trigger until someone dared to rush in front of the cross-hairs of a
21 "The main street running along the Miljacka river became so
22 famous for the number of shootings that it was called Sniper's Alley."
23 And then he made his promise, and Mr. Groome said:
24 "One of these snipers will appear before you and provide evidence
25 of this aspect of the campaign of terror. He will describe his orders to
1 shoot at anything that moved down below his perch. Other witnesses will
2 provide evidence of how snipers were trained and how the activity of
3 snipers around the city was co-ordinated."
4 Well, when the trial started, we found out the promised witness
5 wasn't really a sniper. He was an ordinary VRS soldier and he was
6 protecting a building. The witness is protected Witness RM141 so I won't
7 give too many details, but Your Honours will recall that in a filing of
8 June 2012, the Prosecution sought to change the 65 ter summary to say he
9 was not a sniper but worked closely with snipers in another capacity.
10 Then that witness testified, and the story came out that he was tasked
11 with guarding a military location near the front lines and was told to
12 shoot at anything that came across that front line at him.
13 What? The difference could not be more dramatic. The story went
14 from an inculpatory and damning insider witness against General Mladic to
15 a completely benign witness and I dare say a standard description of
16 orders that every soldier in every country would be tasked with, shooting
17 at anything that came across you at the front line. I must stress no
18 witnesses were brought by the Prosecution to fit the promises made by
19 Mr. Groome.
20 Now this is where I have a problem. RM141 had testified
21 previously in no fewer than two prior proceedings, both of them before
22 the Prosecution's opening statements. So I ask you to ask them where did
23 this misleading information come from, since they surely knew this person
24 was not a sniper given that they had presented him in the other trials.
25 More troubling. We have now heard that the Prosecution is sticking to
1 their pre-trial story about sniping in Sarajevo even though their main
2 witness and their testimony fizzled and disappeared. They didn't ask you
3 to remember that part of the evidence.
4 They also did not remind that you General Rose of UNPROFOR wrote
5 that the Muslim police in Bosnia had a special sniping unit meant to
6 shoot at its own civilians in such a way as to implicate the Serb side.
7 That proofing note of General Rose was discussed in evidence with
8 Witnesses Thomas and Fraser. They likewise do not remind you of the
9 Witness Edin Garaplija, himself a member of the Bosnian secret police,
10 who, through his investigations, confirmed that this unit called Seve
11 existed and that it staged many of the sniping incidents in Sarajevo,
12 including the infamous Romeo and Juliet shooting at the bridge. That was
13 at transcript 33916.
14 They also did not remind you that Witness Sergii Moroz told us of
15 other UN personnel reporting to him that Bosnian snipers, Bosnian army
16 snipers would cross over the Miljacka river into the neutral zone between
17 them and Serb territory to fire at Sarajevo from those positions. That
18 was at transcript page 42358 to -59.
19 Is this really their best case? Have they acted in compliance
20 with the duty of candor?
21 And let's consider that with their original plan destroyed when
22 the sniper turned into fairy dust, the Prosecution and Mr. Weber on
23 Wednesday saw no problem in continuing the fiction of what he called
24 snipers ordered to shoot at anything that moves, this time referencing
25 the 2nd Romanija Brigade and two documents, P7809, P7810. This was at
1 transcript page 45.509 to -10.
2 Unfortunately for Mr. Weber, again the persons instructed to
3 shoot at anything that moves are not snipers. They're ordinary soldiers.
4 And again the instruction is issued at a place near the front lines where
5 it is perfectly legitimate. Military expert Kovac has presented the
6 military law on the topic and we will go more into detail on this when
7 talking of Sarajevo next week.
8 But the tenacious efforts of the Prosecution to continually
9 manipulate the evidence to prejudice Your Honours with misleading
10 assertions of proof, that's reasonable doubt.
11 Another representation and promise from the opening, if we can
12 have the next slide.
13 Prosecutor McCloskey promised to you at transcript 508 as
15 "In the fall of 1995, Mladic and Karadzic decided to exhume the
16 enormous mass graves near Orahovac, Petkovci, Kozluk, Branjevo, and
17 Kravica and scatter the human remains into well over 30 smaller graves
18 hidden in isolated areas where they hoped they could not be found by NATO
19 or the ICTY. General Mladic himself approved the enormous amounts of
20 fuel necessary for this task.
21 "In a document signed by General Mladic he stated ..."
22 And then it goes on to describe the fuel.
23 Now, the document in question referred to by Mr. McCloskey is
24 P1500. And at trial, with expert Butler and another witness, the same
25 story was repeated, and Mr. McCloskey stressed that the fuel order was by
1 Mladic in his own hand. That's at transcript page 11.660 to 11.661, and
2 16.438 to 16.439.
3 Now we have discussed in our final brief at paragraphs 3293 to
4 3304 this particular document and situation and demonstrate that this
5 document, P1500, in fact, did not have to come from General Mladic. And
6 you can imagine my surprise when I open the Prosecution's final brief to
7 find out that the Prosecution agrees with me and concedes that documents
8 that start with the designation prefix identical to P1500 which is
9 "03/04," it's circled in red on the screen, didn't come from Mladic but
10 came from the operation and training administration. But this is not
11 what they say in their Srebrenica section. Rather, it's at the front end
12 of the brief, several hundred pages removed, at paragraph 54 where they
13 concede this.
14 Your Honours, this concession, admission by the Prosecution
15 admits the Defence arguments that P1500 did not have to emanate from
16 Mladic. And yet at paragraph 1384 of their final brief the Prosecution
17 still insists that this designation, 03/04, comes directly from Mladic.
18 Can they do that? Can they really tell you for this order that their
19 Witness Butler said is potentially the only order that could be deemed to
20 be implicating Mladic in Srebrenica crimes, can they tell that you the
21 only conclusion is the one that he signed it of his own hand and sent it?
22 Can they do that after they have conceded that documents with the 03/04
23 designation did not come from Mladic's office in the Main Staff? How do
24 they exclude the possibility that someone else, legitimately or
25 illegally, used Mladic's name for their own purposes under this set of
2 JUDGE ORIE: Mr. Ivetic, I'm looking at the clock.
3 MR. IVETIC: That's fine. I don't have the ear set, but we can
4 break now. That's fine.
5 JUDGE ORIE: We'll take a break and we'll resume at quarter past
7 --- Recess taken at 12.56 p.m.
8 --- On resuming at 1.16 p.m.
9 JUDGE ORIE: Mr. Ivetic, you may proceed.
10 MR. IVETIC: Thank you. Your Honours, before I proceed, I'd like
11 to correct a misstatement that I made when I said RM141 at temporary
12 transcript page 54. I meant to say RM147. And that was brought to my
13 attention by --
14 JUDGE ORIE: That's why I couldn't find it, Mr. Ivetic.
15 Please proceed.
16 MR. IVETIC: Thank you.
17 Your Honours, at transcript page 44326, we heard Mr. Tieger start
18 the Prosecution closing talking about the year 1993. But then you heard
19 him say that Ratko Mladic joined the JCE in May of 1992. Then the
20 Prosecution's position changed yet again around transcript page 44389,
21 when they started talking about 1991 which predates the date that
22 Ratko Mladic is alleged to have joined the JCE. And we heard at
23 transcript page 44373 that the Prosecution would like to hold
24 Ratko Mladic accountable for crimes in Croatia in 1991 and crimes in
25 Bosnia in 1991. That was at transcript page 44389 and the next page.
1 After all this time, Your Honours, my client, Ratko Mladic, still
2 does not have a fair and adequate notice from this Prosecution of what
3 exactly is their case against him and what time-period and alleged events
4 it covers. I ask Your Honours, and the public out there: Is this fair?
5 This past week Mr. Tieger spoke about Rule 73 bis (D) and the
6 Defence arguments as to the indictment. In doing so, he confused two
7 separate issues. One is the unfairness in incidents that were removed
8 from the indictment by the crossing off of them by the Prosecution under
9 Rule 73 bis (D). The other category are those things that were never
10 properly written into the indictment in the first place. The Prosecution
11 also confuses the concept of preliminary motions to fix the indictment
12 and the situation we are at now where we are saying that no conviction
13 can stand when the evidence presented is not in line with the indictment
14 as specified. The law of this Tribunal states that the accused cannot be
15 expected to engage in guess-work in order to ascertain what the case is
16 against him, nor can the accused be expected to prepare alternative or
17 entirely new lines of Defence because the Prosecution has failed to make
18 its case clear. The Simic Appeals Judgement, paragraph 71.
19 Further, the Prosecution is expected to know its case before it
20 goes to trial and cannot omit material aspects of its main allegations in
21 the indictment with the aim of molding the case against the accused in
22 the course of trial, depending on the evidence. Both the Djordjevic
23 Appeal Judgement at paragraph 573 and the Simic Appeal Judgement at
24 paragraph 71 talk about this.
25 Now, let's focus on what Mr. Tieger told us Monday. He told us
1 that the crossed-off parts of the indictment are out and that the parts
2 that are empty and were never written in the indictment are still in.
3 That was transcript page 44384. But under such logic, then a blank sheet
4 of paper would suffice as a proper indictment, and that surely is not in
5 accord with the jurisprudence.
6 But more importantly, given what Mr. Tieger said, then why are
7 these crossed-out, dropped incidents of the indictment back in the
8 Prosecution's final brief? On Monday, Mr. Tieger spoke of Croatia and
9 1991 and again suggested Mr. Mladic's involvement in crimes in Croatia.
10 None of that is in the indictment. We complained to you at the pre-trial
11 conference about this, at transcript page 326 to 327, and asked you to
12 prevent this. Your Honours denied that request by saying that only the
13 indictment can charge the accused and no material changes could be made
14 in other ways but that temporal events beyond the scope may be necessary
15 for terms of context. And then we had the Prosecution case, and at the
16 close of the Prosecution case we found out that rather than context, they
17 actually wanted to use 1991 Croatia crimes for substance in the case.
18 And we again complained to Your Honours, at transcript page 20316-20320,
19 and Your Honours opined as to the extent for which outside temporal
20 events can be used for context. But now the Prosecution wants criminal
21 responsibility for the same. To date, we have not had any type of
22 protection from the Rules of this Tribunal as to notice and pleading
23 requirements to know what this Croatia evidence is. Can Mr. Mladic be
24 convicted on it? Then why wasn't it plead in the indictment?
25 Similarly, RM518 is being used as a Rule 92 quater witness whom
1 the Prosecution is now presenting not only for 1991 and Croatia, but for
2 purposes of attempting to prove wholesale parts of the alleged
3 overarching JCE. This evidence from a 92 quater witness admitted in
4 written form only, and if uncorroborated, according to the law, it cannot
5 be used as a basis for conviction. Look, for instance, at the
6 Milutinovic Trial Judgement, volume 3, paragraph 243 for this type of
7 ruling. And yet in the Prosecution's final trial brief RM518's evidence
8 is cited 17 times. Five citations are completely uncorroborated. That's
9 at citations, the footnotes, 765, 769, 771, 773, and 794 of the
10 Prosecution's brief. And two citations do not support the Prosecution's
11 averments in the final brief. That's at 9 and 963, footnotes.
12 Neither the pre-trial brief nor the 65 ter summary indicated
13 fully the manner of how RM518's evidence was going to be presented to
14 prove material elements. Some of the averments in the final brief of the
15 Prosecution relate to direct acts and conducts alleged of the accused via
16 this uncorroborated 92 quater witness. Is that enough for a conviction?
17 No, Your Honours.
18 Now even more strangely, we heard from Mr. Traldi at transcript
19 page 44399 that even unscheduled incidents can corroborate the evidence.
20 And so under this logic, I suppose, even the crossed-out portions as well
21 as unscheduled incidents can be relied upon according to the Prosecution.
22 The Prosecution position on Rule 73 bis (D) is contrary to ICTY
23 jurisprudence on the issue. Other ICTY cases have clearly held that the
24 Prosecution is not permitted to lead evidence on parts of the indictment
25 that are excluded under Rule 73 bis (D).
1 JUDGE FLUEGGE: Mr. Ivetic, just for the record, did you say on
2 page 61, line 4, that "even scheduled incidents can corroborate" or did
3 you say "unscheduled incidents"?
4 MR. IVETIC: Well, I meant to say "unscheduled," but to be
5 honest, if -- I may have said "scheduled." So thank you for catching
6 that. I meant to say "unscheduled incidents."
7 JUDGE FLUEGGE: Thank you.
8 MR. IVETIC: Under the jurisprudence, unless the -- strike that.
9 Let me start at the beginning of the line.
10 Other ICTY cases have clearly held that the Prosecution is not
11 permitted to lead evidence on parts of the indictment that are excluded
12 against Rule -- are excluded under Rule 73 bis (D) unless the Prosecution
13 applies for such evidence to be heard and included under Rule 73 bis (F)
14 and obtains a court decision permitting same. That was not done here.
15 In the Milutinovic et al Trial Chamber, after submissions of the parties,
16 pursuant to Rule 73 bis (D), to limit the Prosecution indictment, the
17 charges in relation to Racak, Padaliste and Dubrava prison were removed.
18 Thereafter in that case, the Prosecution attempted to lead evidence which
19 related to Racak and Padaliste, and at trial the Chamber intervened and
20 prevented such back-door attempts to get around the Rule 73 bis (D)
21 decision. And in this case, we are having the Prosecution to try to
22 revive counts, incidents, that were crossed out.
23 Now, according to the Tribunal Statute, General Mladic is to be
24 treated equally with others that have been before him at the ICTY, and
25 thus we submit that his rights should not be curtailed or diluted in
1 relation to the ability of the Prosecution to proceed with either
2 unindicted, unscheduled matters that are not in the indictment or matters
3 that were in the indictment but were removed from the same by the
4 application of Rule 73 bis (D).
5 And focussing on how the Prosecution applied 73 bis (D) to our
6 case, when it moved for reduction in the charges under the rule, the
7 Prosecution promised that if it sought to later lead and rely on evidence
8 from the dropped charges for mens rea, it would give specific notice in
9 the Rule 65 ter summaries before leading the same. It failed to do so,
10 and now is relying upon evidence in the final trial brief for no fewer
11 than two of the dropped detention facilities in Sokolac; C18.1 and C18.2.
12 Four dropped detention facilities in Kotor Varos; C11.1, C11.2, C11.3,
13 C11.4. And five dropped detention facilities in Sanski Most; C17.1,
14 C17.2, C17.3, C17.4, and C17.5. That's, in total, 11 previously dropped
15 detention facilities.
16 But Mr. Tieger told us everything that is crossed off in the
17 indictment is out. So which is it? The Prosecution wants to have
18 everything that is missing from the indictment, everything that was
19 crossed out and dropped, and everything else. How is Mr. Mladic supposed
20 to know what to defend against in such a scenario? This is not a
21 hypothetical or academic exercise because I will now tell you that at the
22 Prosecution's final brief at paragraph 1225 there are eight completely
23 new charges for destructions of mosques for whom criminal liability is
24 claimed as to Srebrenica. These are nowhere to be found in the
25 indictment. How badly does the Prosecution think it is doing? Do they
1 think they are losing that they now decide to throw a surprise claim of
2 mosque destruction to beef up their case? In the indictment,
3 paragraph 59 states that the destruction of cultural sites is limited to
4 Schedule D. Not a single mosque from Srebrenica is in Schedule D. Where
5 is the notice? Do we now get to seek a reopening of the trial to try to
6 defend these new charges? Is it fair if we don't get that chance? Will
7 the Prosecution try to raise new charges during next week's rebuttal, or
8 perhaps at the judgement? There has to be a line drawn. It is supposed
9 to be drawn in the indictment.
10 That isn't all. When we look at annex B of the indictment as to
11 other mosques and compare it to the Prosecution's pre-trial brief, we
12 find that the number of affected religious sites do not match up between
13 the two, in regards to Kljuc, Kotor Varos, Sanski Most, Vlasenica, and
14 Ilidza. Why are the numbers different? For which ones now do we have to
15 defend? This is an untenable situation. Your Honours can correct all of
16 this in the judgement by preventing this Prosecution attempt and
17 dismissing those charges.
18 In our final brief at pages 6 to 9, we talk about other charges
19 for which there is absolutely nothing written in the schedules about
20 alleged crime sites. How can we be held in suspense until the very end
21 of the case to know what it was that we were supposed to defend against?
22 There are entire counts for which they have no notice in the indictment.
23 This practice renders the notice provisions and protections of the
24 Tribunal totally meaningless.
25 You have already heard from Mr. Lukic about how incredibly vague
1 and nebulous and over-expansive the indictment was as to JCE.
2 Your Honours may recall some discussion at the beginning of the case that
3 the Prosecution could not provide more details. Perhaps if you have --
4 if you have read the Prosecution's final brief, you were perhaps shocked,
5 like we were, to find in the final brief that they now know precise names
6 and positions of persons whom they allege are members -- direct members
7 of the JCE who are not pleaded with particularity in the indictment.
8 Look at Srebrenica, for example, paragraphs 1066, 1081, 1086. There are
9 likely, I think a dozen or so names that are never specified in the
10 indictment and are for the first time formally identified as JCE members
11 in the final brief. Is that fair? Some of these persons were
12 Prosecution witnesses who denied any part of the JCE. How is the Defence
13 to have fair notice to do its job?
14 On Monday, during one of the breaks in the proceedings, my client
15 asked me, "Danny, will President Karadzic be coming here later to defend
16 himself against Tieger or do we have to defend President Karadzic in our
17 closing too?"
18 Indeed, Your Honours, I understand and appreciate that Mr. Tieger
19 was on the Karadzic case longer than he was on the Mladic case and that
20 he may be stuck in that mindset, but I'm also conscious of another
21 possibility; namely that the Prosecution is trying to play on the
22 emotions and institutional knowledge of your staff members, your helpers,
23 who came over from the Karadzic case after drafting that judgement which
24 convicted Mr. Karadzic and which in its text tried to convict Mr. Mladic
25 and are now drafting the judgement already as we speak in this case.
1 Clearly the Prosecution are trying to manipulate things in that way.
2 Now we have mentioned a few times duty of candor. Since it is
3 called by different names in different jurisdictions, I want to spend
4 some time on that to make sure we all understand what I am talking about.
5 Under United States law, candor is a duty that has long existed for
6 prosecutor's which is best explained by the 1935 case of Berger v. US.
7 If I can have the next slide.
8 And in that case, you see the holdings that are up on the screen,
9 and the key there is that the interests of the prosecutor is not that it
10 shall win a case but that justice shall be done, and that they should
11 refrain from improper methods calculated to produce a wrongful
13 Now, under US law, the duty of candor has been applied to raise
14 and punish serious questions of prosecutorial misconduct, including for
15 taking two inconsistent positions in two separate criminal proceedings
16 against two accused. Smith v. Groose, 205 F.3d 1045 (8th Circuit 2000)
17 is one such example. Such a duty extends to informing the court
18 correctly about the law and facts of a case so that the court may arrive
19 at correct conclusions and render exact justice. Per the US Supreme
20 Court in Brady v. Maryland, 373 US 83 (1963):
21 "Society wins not only when the guilty are convicted, but when
22 criminal trials are fair; our system of the administration of justice
23 suffers when any accused is treated unfairly."
24 Respectfully, the duty of candor does not allow the Prosecution
25 to stay quiet about and thus conceal material facts and law that may
1 assist the Chamber in not being misled. We have not performed an
2 exhaustive review of the world's legal systems, but can report that we
3 have found such a duty exists under various names within the
4 United Nations, Canada, Britain, Australia, South Africa, Kenya, and
6 If we can have the next slide, please.
7 Here, we see from the guide-lines on the role of prosecutors
8 adopted by the 8th United Nations Congress on the prevention of crime and
9 the treatment of offenders from 1990, again, language similar to what we
10 looked at before.
11 If I can have the next slide.
12 And, again, from the Canadian jurisprudence in Rex v. Chamandy,
13 61 C.C.C. 224 from 1934, that, again, a criminal prosecution is not a
14 contest between individuals. It is an investigation conducted without
15 feelings or animus on the part of the prosecution with a single view of
16 determining the truth.
17 Your Honours, I submit that some of the Prosecution's tactics and
18 things that have happened in these proceedings need to be viewed through
19 the lens of the existing duty of candor. Including what I have already
20 spoken about, I would highlight the following.
21 In regards to Prijedor, which we will discuss later, there is an
22 issue in that the Prosecution is presenting faulty evidence and
23 incompatible theories in this case which is different from other
24 convictions and cases it has pursued. In those other cases, the
25 perpetrators were civilian MUP and now are being recast as VRS. We will
1 explore that further when I get to Prijedor. But for now, I will mention
2 that in paragraph 33 of the Prosecution's final brief, it is presented
3 that Mr. Mladic is involved in the running of the camps Omarska and
4 Keraterm and that Mr. Mladic was responsible for cleaning up the camps
5 before a Red Cross visit. However, in evidence we have P2432, which is
6 testimony under seal of a protected Prosecution witness, where in that
7 exhibit, the Prosecution - in fact, Mr. Tieger - is presenting that
8 witness and is presenting the evidence that Zupljanin, rather than
9 Mladic, was the one that ordered these facilities cleaned up before the
10 ICRC came and that Drljaca of the civilian MUP ran both centres. Is
11 their case that bad that they must recast history and take diametrically
12 opposed positions to try and get convictions of two persons for the same
14 But let's get back to Srebrenica. Let's recall that the
15 Prosecution started in the opening talking about 7.000 dead at
16 Srebrenica. At trial, the demographers kept creeping that number
17 upwards. But let's recall that the Prosecution demographers did not
18 initially reveal that 70 per cent of their purported victims for the
19 Srebrenica incidents were ABiH soldiers. Defence expert Radovanovic at
20 transcript page 38170 explained that. Let's recall there are resolved
21 issues about some of the victims exhumed from the Srebrenica mass graves
22 who are recorded as having been killed as members of the ABiH in the
23 years prior to 1995; D344 in evidence. And we talk in our final brief at
24 paragraph 2262 to 2263 of the failure of the OTP to account for their own
25 body of evidence from survivors of the Srebrenica column and from their
1 own expert Richard Butler to talk about massive combat casualties of the
2 column. And can you find that at our Defence brief paragraph 2264 and
3 transcript page 16289 to 16290.
4 So where are these dead, these combat casualties? And are they
5 included in the figure being promoted by the Prosecution?
6 And now if we could briefly go into private session.
7 JUDGE ORIE: We move into private session.
8 [Private session]
9 [Open session]
10 THE REGISTRAR: We're back in open session, Your Honours.
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 MR. IVETIC: Your Honours, at paragraph 1581 of the Prosecution's
13 final brief, the Prosecution has now reduced the figure of victims for
14 Srebrenica to 5.956. Yet, the other day in closing, Mr. McCloskey again
15 promoted it to "over 7.000" victims. Keep in mind the Prosecution and
16 their demographer have refused to provide the Defence with the matching
17 criteria and insight into how their demographer made the matches to
18 identify all these victims as being related to crimes in Srebrenica.
19 This is a case that the Prosecution must win and get a conviction
20 in. That's their position. It's a case where General Mladic is vilified
21 in the media. It is a case where President Meron of the MICT has assured
22 victims publicly that Mr. Mladic will be brought to justice, and one
23 where President Agius of the Tribunal has already convicted Mr. Mladic of
24 crimes in the Popovic Judgement, absent Mr. Mladic being able to defend
25 himself. The political pressure to convict is great, but duties must not
1 be broken. Duties and the law must be applied evenly and impartially
2 without regard for pressure of political or other nature.
3 Now let's talk about Kalinovik.
4 JUDGE FLUEGGE: Mr. Ivetic, if you look at the screen, you are
5 kindly requested to slow down.
6 MR. IVETIC: Thank you, Your Honours. And I apologise I should
7 be looking at the screen.
8 Let's talk about Kalinovik, General Mladic's home town. This
9 Prosecution filed a motion seeking for you to take judicial notice of an
10 adjudicated fact, I believe it was from the Galic case, that four named
11 mosques in Kalinovik were destroyed by Bosnian Serb forces. That's
12 adjudicated fact 746. At the same time that they obtained your decision
13 granting that request, the Prosecution surely already had in their
14 possession a report from expert Riedlmayer from the Karadzic case telling
15 them that per his review, the fourth mosque never existed and thus never
16 was destroyed. They do nothing. They bring a witness for Kalinovik,
17 RM034, asking very little of him except for the leading question: "Who
18 destroyed all four mosques in Kalinovik?" And the witness confirms by
19 saying all four mosques were destroyed by Bosnian Serb forces. The
20 Prosecution again keeps quiet. Then Riedlmayer comes and they choose not
21 to ask him about Kalinovik and the mosque that doesn't exist. They keep
22 quiet again. In Rule 98 bis I raise it and point out that the mosque
23 doesn't exist. At that point in time to today, they take no steps to
24 acknowledge this or to seek to drop that charge for that mosque that
25 doesn't exist.
1 Is that how the duty of candor is supposed to work?
2 Respectfully, Your Honours, for these reasons alone, any result other
3 than an acquittal will be marred with a black stain of the Prosecution's
4 mishandling and disrepute which then would forever mar the reputation and
5 legacy of this Tribunal. And since your names and your reputations will
6 be affixed to this judgement, do not let the Prosecution's foul behaviour
7 stain and blemish your reputations.
8 Now I will move to Count 1, the charge of genocide in
10 In its final brief, the Prosecution has focused its allegations
11 of genocide solely on an analysis of the events which transpired in
12 Prijedor. Again, on the other day, this week, they pushed Prijedor as
13 the main example for their genocide case in relation to the
14 municipalities. In doing so, they imply that they cannot substantiate a
15 charge of genocide in the municipalities otherwise indicated in their
16 indictment. Similarly, an analysis of this single municipality of
17 Prijedor strongly undermines their assertion that a pattern of crimes
18 existed across the six identified municipalities which, according to the
19 Prosecution, evidences genocide.
20 The other day we listened to the Prosecution say that the Chamber
21 may find that Count 1 has been proven in the aggregate by taking parts
22 from the best evidence from the various municipalities and then using
23 that with Prijedor to draw conclusions of a pattern. No. That surely is
24 not the standard. Cherry-picking the evidence is not the standard for
25 genocide. If there is evidence contrary to genocide, then that is
1 reasonable doubt. If a particular municipality charge is sought to be
2 proven as genocide, it is up to the Prosecution to prove that charge, not
3 to aggregate a lot of bad evidence to link it by association with good
4 evidence. The reason the Prosecution wants you to do this is because it
5 has led very little evidence on most municipalities. There is a lot that
6 is open and unknown. Your Honours, that's reasonable doubt. That is not
7 the top tip of the pyramid. That's somewhere lower. That is an
9 The specific intent or the so-called dolus specialis is what
10 genocide distinguishes from other criminal prohibitions. This is an
11 aggravated form of intent and requires not only intent for acts but also
12 intent to commit the acts for purposes of destroying, in whole or in
13 part, a national, ethnical, racial or religious group as such. The
14 intent must be to destroy the group as a separate and distinct entity and
15 target individuals because of their membership of a group. This specific
16 intent cannot be established in this case. When reviewing actions and
17 statements in their proper contexts, it shows there was no intent to
18 destroy the Bosnian Muslims and Bosnian Croats that Mr. Mladic had in his
20 Your Honours, in his position as Main Staff commander,
21 General Mladic could have issued orders to commit horrendous crimes. But
22 that is not what General Mladic did. On the contrary. He always
23 insisted that the VRS abide by the Geneva Conventions and customs and
24 laws of war. And most importantly, Mladic issued orders to protect the
25 civilian population. We have multiple witnesses and documents that talk
1 about that. But, for example, on 23 June 1992, the accused ordered the
2 Rogatica Brigade to take measures to protect the Muslim population in the
3 villages of Burati and Vrhbarje [phoen] from possible violence from
4 individuals. That is D1514, page 1 to 2. Is this evidence of an intent
5 to destroy Bosnian Muslims and Croats? No.
6 Now, Your Honours, the Prosecution claims that intent can be
7 inferred from statements made by Mr. Mladic, and in making this claim,
8 they would have you understand these statements out of their context and
9 disregard any and all statements that evidence the contrary. They cannot
10 do this. They have to take the statements together and review them in
11 their context with all the evidence combined. The Karadzic Trial
12 Judgement paragraph 550 says that. And we saw an example today where the
13 full context of the third Fontana meeting is quite different from what
14 was presented by the Prosecution.
15 Now, for example, the Prosecution has misinterpreted Mladic's
16 intent so much, to such an extent as to impose language not used by him
17 in order to prove dolus specialis. For example, contrary to what is
18 alleged in paragraph 381 of their final brief, Mladic did not depict all
19 Bosnian Muslims or Croats as enemies, let alone as historical enemies of
20 the Serb people. Quite the opposite. In P00431, page 33, Mr. Mladic
22 "We don't want a war against the Muslims as people or against
23 Croats as people but against those who steered and pitted these peoples
24 against us."
25 The Prosecution has similarly failed to contextualise the
1 statement by Mr. Mladic that all actions were justified in the face of
2 the threat of genocide. This at 381 of the Prosecution's final brief.
3 And the report, the document in which this statement was made, was
4 drafted in the midst of a conflict initiated by the SDA against the SDS
5 and Bosnian Serb people in order to force them to accept SDA political
6 dominance. In that context, Mr. Mladic praised the Bosnian Serb people
7 for their resistance against the believed threat of subjugation and
8 progress towards establishing a democratic community in which people of
9 all ethnicities would be equally respected. P1966, page 3.
10 Furthermore, the Prosecution has attempted to compile unrelated
11 exhibits which have no association in an effort to substantiate
12 dolus specialis in paragraph 381 of their final brief. When viewed in
13 their proper context, none of the referenced exhibits of evidence show
14 any intent to "vanish" or "disappear" any person based upon their
15 ethnicity, let alone an intent to destroy Bosnian Muslims peoples in
16 whole or part. Rather, references are made only to legitimate combat
17 personnel who posed a threat as enemy combatant forces.
18 For example, P1969, referenced by the Prosecution in footnote
19 1550 of their brief at paragraph 381, Mladic states only that the
20 Ustashas should disappear; and in P3076, Mladic is concerned only to have
21 the enemy vanish, that enemy being the combat forces against which he is
22 defending his people.
23 Moreover, in making these compilations, the Prosecution has also
24 relied upon several documents which do not pertain to the six
25 municipalities referenced in the indictment for genocide. For instance,
1 P327 and P1960.
2 The Prosecution claims that genocidal intent can be evidenced
3 from the satisfaction that Mladic is alleged to have expressed of the
4 actions of fighters in Prijedor in an interview of October 1992. That is
5 paragraph 381 of the Prosecution's brief. It should be noted that he
6 does not reference the VRS. He states only "their fighters."
7 That's P7629, page 2 to 3.
8 And what the Prosecution fails to bring up, in that same
9 interview Mladic also reiterates his commitment to peace, saying, and now
10 I quote Mr. Mladic:
11 "I would like peace to come already during this interview or
12 immediately afterwards, but in my opinion, the problems will not be
13 solved that fast. With regard to the army, we are ready to sit down and
14 talk about peace right now. If the opposing sides demonstrate such will
15 as well, peace would be possible and would be restored quickly."
16 P7629, page 3.
17 This reiterates statements made by General Mladic throughout
18 1992, including the intercept referenced by the Prosecution P327, page 2
19 to 3, in which Mladic says:
20 "We are not in favour of fighting. We are in favour of peace."
21 As such, it cannot be concluded that he knew of crimes or that he
22 approved of them from this evidence as much more benign interpretations
23 are available from the plain meaning of the words he used.
24 A high standard must be met to evidence the intent to destroy.
25 Indeed, it has been held that even statements which could indicate an
1 ethnic bias or an intention to separate people based upon ethnicity,
2 those mere words alone are insufficient to demonstrate an intent to
3 physically destroy. At our own Tribunal we can look at the Stakic Trial
4 Judgement, paragraph 519; the Karadzic Trial Judgement, paragraph 2597;
5 and at the ICJ, the judgement in the case of Bosnia and Herzegovina v.
6 Serbia and Montenegro, paragraph 190.
7 Similarly, the Prosecution would have us believe that any deaths,
8 crimes, injuries or other acts which occurred in the municipalities
9 evidence genocidal intent. They have failed, however, not only to
10 demonstrate Mladic's culpability for such deaths, crimes, injuries or
11 other acts, but also that the acts themselves evidence genocide. In
12 fact, it has been demonstrated that no group was in and of itself
13 deliberately targeted by the VRS. Evidence demonstrating that numerous
14 civilians of all ethnicities were protected by the VRS, despite the
15 incidents which occurred, that defeats the allegation of dolus specialis.
16 That shows that there was no intent to destroy the group in whole or in
17 part in Mr. Mladic's mind. For example, in Rogatica and Kotor Varos,
18 several Muslim villages enjoyed full protection during the conflict.
19 While the Prosecution in their submissions would like to focus on
20 Satorovici, I would again return to the villages of Burati and Vrhpolje,
21 and in evidence is D1514, an order from the Main Staff and signed by
22 General Mladic to the Rogatica Brigade commander. This order was issued
23 after another document, D958, a report on how peaceful and loyal Bosnian
24 Muslim villagers were being harassed by unknown persons.
25 If I can have the next slide. Here we have it in both languages.
1 In this order General Mladic says:
2 "Immediately take a measures to protect the Muslim population in
3 these villages from possible violence from individuals because they
4 expressed loyalty to the Republika Srpska.
5 "2, explain to soldiers and units who will perform the possible
6 effects nearby these villages or those who intercede terror, that any
7 violence against the people of these villages will be politically harmful
8 for Republika Srpska, its army and the Serbian people in general.
9 "3, for execution of this order, unit commanders are personally
10 responsible to me."
11 The evidence is that these villages stayed peacefully with their
12 Serbian neighbours until late into the war and left peacefully due to no
13 reasons related to General Mladic or any JCE.
14 The Prosecution would have you believe that General Mladic has a
15 discriminatory intent to destroy Muslims already in 1992 and yet that's
16 exactly when he is issuing this type of order. General Mladic is acting
17 to protect Bosnian Muslims, including from errant and wrongful acts of
18 fellow Serbs. Your Honours, that's reasonable doubt. That is an
20 And in Sanski Most, there were neighbourhoods with more than
21 1.000 Muslim and Croat inhabitants. That's D785, paragraph 19, as one
22 example of that evidence. The Prosecution took issue with this as well.
23 And I would like to focus on another two of General Mladic's documents.
24 They are D929 and D1503, and they're issued in September and October of
25 1995 and are addressed to President Karadzic and the MUP police minister,
1 and they relate to Sanski Most. These two documents prove two things:
2 One, they prove that even in that late of a date in 1995 in the war,
3 non-Serbs still reside in the very town of Sanski Most in significant
4 number; two, they show that General Mladic is standing up to try and
5 protect those non-Serbs who were loyal citizens who happened to be
6 Bosnian Muslim and Croat, protect them from crimes and harassment by
8 As these documents demonstrate, General Mladic is neither
9 approving of the harassment and crimes being committed by Arkan against
10 non-Serbs, nor is he approving of Arkan and his group. He calls them
11 paramilitaries and suggests that if the police and Karadzic do not act to
12 remove this group, the army will act militarily against Arkan. One
13 cannot turn a blind eye to affirmative evidence of General Ratko Mladic's
14 actions to try and protect non-Serbs, even from his -- from his fellow
15 Serbs. Such actions of Ratko Mladic do not evidence a genocidal criminal
16 intent. Rather, they suggest an interpretation consistent with
17 reasonable doubt, of an honourable soldier trying to save lives and
18 protect all the people of his country, even non-Serbs, in a very
19 difficult and perilous war.
20 Your Honours, that is enough for an acquittal. The Prosecution
21 is nowhere near the top of the pyramid with such evidence.
22 Further, again, I don't know how much detail I will be able to go
23 into next week on the municipalities, but one has to look at the manner
24 in which General Mladic's VRS forces were engaged in the very
25 municipalities where the Prosecution alleges genocide.
1 If we can have the next slide, please.
2 I will look at Kljuc right now. Exhibit P3923 is excerpted on
3 our screens right now, and it was presented by the Prosecution at trial
4 and was submitted to try and show that VRS forces were in villages and
5 areas that were scheduled indictment incidents. It was used with Witness
6 Kevac. The Prosecution's only concern was to demonstrate that the VRS
7 was present. For them, this was enough. Because by the Prosecution's
8 view, the VRS is a criminal entity. Again, for them being a Serb is a
9 criminal offence too. Therefore, the Prosecution chose not to focus on
10 what the VRS actually was ordered to do and what it actually did.
11 The Prosecution ignores the presence of armed enemy combatants of
12 the ABiH side or their activities which necessitated military clearing
13 operations, or ciscenje. So as to a wide area in Kljuc on 30 May 1992,
14 which is this entry in this log-book, mopping up, or ciscenje, was
15 performed to address Bosnian Muslim forces who were armed and active.
16 And now let's look at the results of that action.
17 Results. Arrested, 250 people who surrendered their weapons.
18 After investigation, 100 were released to go home. That doesn't sound
19 like genocide.
20 Next entry. About 1.000 refugees in the village of Ljusa were
21 allowed to return home after a search of nearby villages. Again, that
22 doesn't sound like genocide.
23 Witness Kevac testified that this is consistent with the way the
24 JNA and VRS conducted mopping up, or ciscenje, operations. That's at
25 transcript page 30541 to 30544.
1 Again, Your Honours, this evidence does not support a finding of
2 any discriminatory intent or any genocide.
3 JUDGE ORIE: Mr. Ivetic, I'm looking at the clock. We're close
4 to the moment where we have to adjourn.
5 MR. IVETIC: If I could just perhaps have 20 seconds to finish
6 this paragraph, it will be easier.
7 JUDGE ORIE: 20 seconds you have.
8 MR. IVETIC: This supports a finding of legitimate military
9 actions aimed only against the armed enemy combatants. Why else would
10 some people with guns be allowed to go home? Because they are found not
11 to have used their weapons, not to have posed a threat. And if a
12 temporary removal of the civilian population during mopping up or combat
13 is followed by a return of these civilians to their homes, well, there's
14 only one result that can be reached under this under law, that is an
16 And I thank Your Honours.
17 JUDGE ORIE: Thank you, Mr. Ivetic.
18 Before we adjourn, I would have one or two small questions for
20 Only a few minutes ago you referred to D929 and D1503 and you say
21 these are documents -- General Mladic's documents issued in September and
22 October of 1995. I can follow that for D1503, but D929 seems to me to be
23 a witness statement rather than a document issued in September, a Mladic
25 Further, could I ask you in transcript page 67 today, you refer
1 to your final briefs paragraph 2262, 2263, and 2264, and you did so after
2 you said we would now turn to Srebrenica. 2264 deals with modified air
3 bombs, which are really a Sarajevo issue. And 2262 and 2263 seem to give
4 comment in the context of the evidence given by Mr. Van der Weijden which
5 also places us very much in the Sarajevo area rather than in Srebrenica.
6 And I'm not blaming you for the speed of speech, but, of course, I can't
7 check everything at this moment, but these are just a few sources where I
8 had difficulties to follow you, not in your speech, but in the underlying
9 documents you refer to.
10 We adjourn for the day, but perhaps -- may I take it that the
11 response earlier announced will be in writing and you will -- then we'd
12 like to -- then we'll look at that later today.
13 We adjourn for the day, and we'll resume on Monday, the 12th of
14 December, 9.30 in the morning, in this same courtroom, I.
15 --- Whereupon the hearing adjourned at 2.16 p.m.,
16 to be reconvened on Monday, the 12th day of
17 December, 2016, at 9.30 a.m.