Tribunal Criminal Tribunal for the Former Yugoslavia

Page 44579

 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

 7     courtroom.

 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

Page 44580

 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

 6     evidence.

 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

Page 44581

 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

Page 44582

 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

Page 44583

 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

Page 44584

 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

Page 44585

 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

Page 44586

 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.

Page 44587

 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

Page 44588

 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

Page 44589

 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

Page 44590

 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

 6     evidence.

 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

12     well.

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

Page 44591

 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

 3     spoken.

 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

 8     it.

 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

12     that.

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.

Page 44592

 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

22     D917.

23             MR. LUKIC:  917, yes.

24             JUDGE ORIE:  Please proceed.

25             JUDGE FLUEGGE:  May I ask you, Mr. Lukic, because it was standard

Page 44593

 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

Page 44594

 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

25     Ustasha.

Page 44595

 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

Page 44596

 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

Page 44597

 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

Page 44598

 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

13     deeds.

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.

Page 44599

 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

Page 44600

 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,

Page 44601

 1     over which he had no authority and of whose actions he would not be

 2     informed.

 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

Page 44602

 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

Page 44603

 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

12     otherwise.

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

Page 44604

 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

Page 44605

 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

 8     fire.

 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

Page 44606

 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

Page 44607

 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

Page 44608

 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

Page 44609

 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

Page 44610

 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

 5     after.

 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

Page 44611

 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

Page 44612

 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

Page 44613

 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

12     Chamber?

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 ...

Page 44614

 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

 6     already.

 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

Page 44615

 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

Page 44616

 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

 5     case.

 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

Page 44617

 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

Page 44618

 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

Page 44619

 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

Page 44620

 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

Page 44621

 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

Page 44622

 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

Page 44623

 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 --

Page 44624

 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

 4     misstatement.

 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

 7     that.

 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.

Page 44625

 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

Page 44626

 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

Page 44627

 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

Page 44628

 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

Page 44629

 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,

Page 44630

 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

 3     Butler.

 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.

Page 44631

 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

Page 44632

 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

 3     evidence.

 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

20     scope.

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

Page 44633

 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

Page 44634

 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

Page 44635

 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

14     follows:

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

Page 44636

 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

Page 44637

 1     facts?

 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

 6     1.00.

 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.

Page 44638

 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

Page 44639

 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

Page 44640

 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).

Page 44641

 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

Page 44642

 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

Page 44643

 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

Page 44644

 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.

Page 44645

 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

12     conviction.

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

Page 44646

 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

 5     Ireland.

 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

Page 44647

 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

13     deed?

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

Page 44648

 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   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 44649

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 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

Page 44650

 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.

Page 44651

 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

 9     municipalities.

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

Page 44652

 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

 8     acquittal.

 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

19     mind.

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

Page 44653

 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

21     said:

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

Page 44654

 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,

Page 44655

 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

Page 44656

 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.

Page 44657

 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

19     acquittal.

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,

Page 44658

 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

 7     Arkan.

 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.

Page 44659

 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.

Page 44660

 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

15     acquittal.

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

19     you.

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

24     document.

25             Further, could I ask you in transcript page 67 today, you refer

Page 44661

 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.