Tribunal Criminal Tribunal for the Former Yugoslavia

Page 44662

 1                           Monday, 12 December 2016

 2                           [Defence Closing Arguments]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.33 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             There's one leftover from the past month, I would say -- no,

13     perhaps even years which I'd like to deal with first before we continue

14     to hear the final argument of the Defence.  It is about admission of

15     D1086.

16             On the 30th of June of 2015, during the testimony of

17     Bruno Franjic, the Chamber reserved Exhibit Number D1086 for a photograph

18     shown to the witness but not yet uploaded into e-court.  This can be

19     found at transcript page 36500.  The Defence only uploaded this

20     photograph and sought its admission on the 5th of December, 2016, after

21     having been reminded of this issue by the Registry.

22             On the 7th of December, 2016, the Prosecution informed the

23     Defence and the Chamber that it does not object to the photograph's

24     admission.

25             The Chamber recalls that the photograph was shown to a witness


Page 44663

 1     during the Defence case.  While the evidentiary phase of the case is

 2     over, given the fact that there are no objections to the document's

 3     admission, in the specific circumstances of this document, the Chamber

 4     will exceptionally admit the document at this stage of the proceedings.

 5             And the Chamber instructs the Registry to assign D1086 to Rule 65

 6     ter number 1D05459a and admits D1086 in evidence.

 7             Mr. Ivetic, if you're ready to continue your final argument, then

 8     proceed.

 9             MR. IVETIC:  Your Honours, thank you.  Before I continue with our

10     arguments, I owe two corrections of citations which we gave last week and

11     which you raised questions about at the end of Friday.  As to the combat

12     casualties of the column and Mr. Butler's evidence and that of others,

13     that is to be found at paragraphs 2738 through 2751 of our final trial

14     brief, and not paragraph 2264 which I had erroneously read out in court.

15             Likewise, in regards to genocide the second Mladic correspondence

16     complaining of Arkan's activities in Sanski Most from

17     September/October 1995, should be P03095, rather than D929 which I had

18     read out and which Your Honours rightly noted which was a witness

19     statement.

20             JUDGE ORIE:  Mr. Ivetic, of course, during the final argument

21     we're not able to check every source, et cetera, but in few of the fact

22     that the small number I did verify, there were quite a few mistakes, as

23     there was a mistake as well for the Prosecution, would you please take

24     care -- or perhaps check again, that your references are right, because

25     now it's easy to correct them, but in a later stage to have communication

Page 44664

 1     with the parties after the final arguments have been closed is not

 2     something we're looking forward to.

 3             MR. IVETIC:  Understood, Your Honours.

 4             JUDGE ORIE:  Please proceed.

 5             MR. IVETIC:  I will resume our submissions as to genocide.

 6             Your Honours, it cannot be established that there was a pattern

 7     of crimes or a co-ordinated plan to commit genocide in the

 8     municipalities, as set out in the Defence final brief in greater detail;

 9     incidents occurred based on local circumstances and by different

10     perpetrators.  Violence was affected by the level of trust that existed

11     in a local -- on a local level between the different communities.  In

12     Prijedor, memories of World War II were still fresh in the mind of most

13     Bosnian Serb residents and the level of trust between the different

14     ethnicities was limited; as example, we have D859 and D62.  However, in

15     other places, such as Srbac, the situation remained peaceful, despite

16     ethnic Croat forces shelling Srbac on several occasions in 1992, and we

17     had the evidence of Witness Milincic as to see that at transcript page

18     28350 through 28352.  General Mladic made all efforts to sedate and quell

19     any upsurge in violence or move towards conflict.  This is evidenced, for

20     instance, by the fact that he was an absolute proponent of the peaceful

21     approach resolution as adopted in Srbac by Milincic and Mladic repeated

22     this in front of 500 people in a meeting.  We have that again from

23     Witness Milincic at T28350 through 28352 and also in D783, paragraphs 15,

24     24, 25.

25             The Prosecution claims that prominent members of the Bosnian

Page 44665

 1     Muslim and Bosnian Croat side were targeted, this is at paragraph 355 of

 2     their final brief.  It is not logical in any war that individuals from

 3     the opposing party, such as commanders or prominent members stirring up

 4     fighting, are arrested.  The intention of Mladic and the VRS was not to

 5     kill prominent members, it was merely to arrest enemy combatants as

 6     legitimate prisoners of war which is not a crime and which is based upon

 7     their threat to peace and security not their ethnic identity.  The

 8     killings that occurred were unintended and certainly not ordered or

 9     planned by Mladic and, in fact, reporting to Mladic was not always

10     available or talked of steps taken against perpetrators.  The inclusion

11     of non-Serbs into the ranks of the VRS, including Bosnian Muslim and

12     Bosnian Croats including within Prijedor municipality, demonstrates that

13     there was no discriminatory intent, let alone an intent to destroy

14     non-Serbs in whole or in part within the mind of the accused.  And as

15     examples we have P7406, paragraph 2, we have the testimony of

16     Witness Kelecevic at 37360 through 37364; D767; D768; D769, among others.

17             As the Appeals Chamber in Tolimir confirmed, the selective

18     targeting of a protected group's leadership may amount to genocide only

19     if the leaders are selected because of the impact that their

20     disappearance would have on the survival of the group as such that.  That

21     was in paragraph 265 of that judgement.

22             No evidence in the instant case demonstrates that the legitimate

23     detainees had significant impact on the physical survival of the Bosnian

24     Muslims and Croats.  In their closing arguments, the Prosecution claims

25     that the Defence ignores the jurisprudence as to targeting of a

Page 44666

 1     leadership group; the Prosecution is misrepresenting the Defence

 2     position.  We take no issue with the law.  Rather, we are saying that in

 3     the particular instances that were cited, such as Prijedor, the factual

 4     circumstances do not demonstrate the type of targeting with the specific

 5     intent to destroy, as is required under the same jurisprudence cited by

 6     the Prosecution.

 7             The Prosecution has alleged that the departure of people from the

 8     municipalities substantiates a claim of forcible transfer and of

 9     genocide; however, when taken in its totality, the evidence demonstrates

10     that people chose to leave the different municipalities for a variety of

11     reasons - as Mr. Lukic has already mentioned last week - such reasons for

12     departure, having no basis in the existence of any JCE or acts of the

13     accused or the VRS.  The Prosecution starts with the presupposition that

14     persons left due to a JCE and due to acts of the VRS and thus sees a

15     pattern because it has blinded itself to all other alternative

16     interpretations.  The evidence from municipalities does not show forcible

17     removal at the hands of the VRS as its only conclusion.  An allegation of

18     forcible transfer is insufficiently evidenced on this basis.

19             In addition, as we noted in the Prlic et. al trial judgement, to

20     substantiate a claim the Prosecution -- such a claim, the Prosecution

21     must show that the people of the municipalities left because of a

22     criminal act by Mladic.  That was in paragraph 55 of that judgement.

23     More importantly, to substantiate the greater allegation of genocide, the

24     Prosecution must prove there was a specific shared genocidal intent

25     between the perpetrators of these acts and General Mladic.  Only

Page 44667

 1     demonstrating that people left is not enough.  Evidence needs to be

 2     presented that ties General Mladic specifically to the intent to destroy

 3     that specific segment of the population, and we would cite to the ICJ

 4     Bosnia versus Serbia and Montenegro judgement, paragraph 190; the Tolimir

 5     appeals judgement, paragraph 231; and the Stakic trial judgement,

 6     paragraphs 519 and 533.  We submit this cannot be established.  Many

 7     people left before Mladic was even appointed as Main Staff commander of

 8     the VRS, so how could he have had the intent to forcibly remove and

 9     destroy them?  And where is the evidence of meetings where he would have

10     agreed to commit these alleged crimes?  How can such a grandiose,

11     criminal plan be effectuated across so many municipalities absent any

12     meetings or any written orders?  It could not.  That is why an acquittal

13     is appropriate.

14             Moreover, when combat takes place between two opposing forces,

15     both forces have the obligation to remove people temporarily from

16     possible harm.  Additional Protocol I Article 58(a) and Article 49 of

17     Convention IV.  In the necessary circumstances this obligation was

18     followed by the VRS.  The fulfilment of an obligation required under

19     international law cannot, in all practicality, then be used by the

20     Prosecution to evidence a claim of genocide.  If the VRS had not

21     temporarily removed the civilians, people would have been left

22     unprotected and risked being killed in combat.

23             Your Honours, several Chambers from this Tribunal have examined

24     the allegation of genocide in the municipalities.  In each one, the

25     defendant has been acquitted of this charge.  For instance, the Stakic

Page 44668

 1     Appeals Chamber reaffirmed the Trial Chamber decision to acquit on this

 2     charge.  They found there was insufficient evidence to support the

 3     proposition that the elected civilian leadership of the RS developed a

 4     genocidal campaign.  Similarly, in relation to Prijedor, the OTP's main

 5     focus, the Brdjanin chamber specifically determined the absence of an

 6     escalation to genocide in the ARK after examining the killings at

 7     Koricanske Stijene and treatment of prisoners at Keraterm, Omarska,

 8     Trnopolje, and the situation in Prijedor, Kljuc, and Sanski Most.  And

 9     even in the most closely related case to the one that is before

10     Your Honours, the Karadzic case, that Trial Chamber found that after a

11     holistic approach and reviewing statements in their context, it could not

12     be established that there was an intent to destroy Bosnian Muslims and

13     Bosnian Croats in whole or in part in any municipality in

14     Bosnia-Herzegovina.

15             In this case, the Prosecution has not presented any new evidence

16     that would result in a different conclusion.  When considering the

17     evidence in whole together with all the facts and circumstances in this

18     case, it cannot be established that the intent to destroy the Bosnian

19     Muslims and Bosnian Croats is the only reasonable inference the Trial

20     Chamber can make.  Thus, this leads to only one possible conclusion:  The

21     accused should be acquitted of Count 1.

22             Now, we may deal with some of the other municipalities later, but

23     insofar as the Prosecution has shined their spot-light on Prijedor, I

24     would like to spend some time focussing on this municipality and the

25     evidence to demonstrate how the Prosecution's case fails to eliminate

Page 44669

 1     reasonable doubt because conclusions inconsistent with the Prosecution

 2     indictment can be reached under the available evidence.

 3             We have set forth substantial arguments as to Prijedor and

 4     Tomasica within our final brief at sections III(B) and (C).  The

 5     Prosecution would like to use Prijedor as its model municipality for the

 6     charges relating to genocide in the municipalities; however, to do so,

 7     the Prosecution mis-argues the facts and misrepresents the same and also

 8     hopes that you will forget or ignore counter-conclusions which exist

 9     under the evidence, which is not appropriate.  The existence of

10     counter-conclusions under the evidence, acts under in dubio pro reo, to

11     establish reasonable doubt and indicates that the Prosecution has not met

12     the burden of proof.  We highlight only some factors relevant to

13     Prijedor.

14             The Prosecution claims that the departure of civilians from

15     Prijedor was part of a joint criminal enterprise to remove or destroy all

16     non-Serbs, and in their final brief they say this started with the

17     take-over of power by Serbs in Prijedor.  Now, that's in Annex A of the

18     final brief, in paragraphs 2 and 9 relating to Prijedor.  And further,

19     they say, it was started by efforts to disarm non-Serb villages in the

20     Hambarine, Kozarac areas, including Brdo, also Annex A of the

21     Prosecution's paragraph, paragraphs 15 through 17 dealing with Prijedor.

22             They ignore that alternative conclusions are available from the

23     evidence; namely, that lack of electricity, lack of consumer products,

24     and shortages of other essential items meant that Prijedor was running on

25     10 to 15 per cent of its capacities and people were trying to survive

Page 44670

 1     with these shortages.  The Prosecution's own exhibit, P4131, establishes

 2     this.  So not just non-Serbs but Serbs as well were dealing with these

 3     shortages.  Other documents and evidence also showed shortages of

 4     medicine, electricity, water, and food in Prijedor.  P338, page 146;

 5     P3278, page 17; we had a Prosecution witness testified about this at

 6     T2097; and we had also P3847 [Realtime transcript read in error "P7847"],

 7     page 11; P7385, page 26.

 8             In such a situation, common sense and logic state that some

 9     persons will leave an area with these shortages to go somewhere elsewhere

10     where they think it is better or where it actually is better.  The

11     evidence is that entire neighbourhoods and villages in Prijedor that were

12     ethnically non-Serb in population stayed even throughout the war, which

13     demonstrates a logical and reasonable conclusion that there was not an

14     intent to destroy or remove non-Serbs.

15             Further, although the Prosecution claims that non-Serb police

16     commanders were removed after the take-over due to ethnicity, the

17     evidence does not support that view.  Prosecution witnesses confirmed,

18     rather, that non-Serbs retained their jobs until the attack in Hambarine.

19     We can find that at transcript 3506 through 3507 and also at P2585.

20     After the attack at the check-point in Hambarine, many Bosnian Muslims

21     and Croats simply stopped going to work; again, RM0206 told us about that

22     in P2585.  I ask you:  How can General Mladic be responsible for the acts

23     of these individuals to stop going to work?

24             Further, there is evidence that police officers, both Bosnian

25     Muslims and Croats, were offered the option of staying in their positions

Page 44671

 1     provided that they accept the state, Republika Srpska, and its laws.  We

 2     see this from P3948, page 3.  And this was true for Serbs too.  Those who

 3     refused, independent of their ethnicity, were dismissed.  And we can see

 4     that from the Prosecution witness T3394 through 3395, Merdzanic; and then

 5     we can also see that at D61, D62.  Is this some criminal plan or a

 6     legitimate action to protect against sedition?

 7             Further, police officers from the Prijedor area of Bosnian Muslim

 8     or Croat region were given the opportunity to stay employed as members of

 9     the Kozarac police station.  We see that from D1771 [Realtime transcript

10     read in error "D1717"], page 58.  Simply put, the evidence does not

11     support the Prosecution; but rather, together with the common sense and

12     logic, this evidence show there is was no JCE to commit genocide or

13     otherwise.  Everyone was trying to re-establish peace.  And again, all of

14     this takes place before General Mladic is even on the ground because he

15     is still in Croatia.  To be guilty of what the Prosecution charges,

16     General Mladic must have had superhuman powers.

17             Likewise, we also have heard evidence of a significant number of

18     non-Serbs who were mobilized into and served in the VRS even after the

19     events in Prijedor.  Again, we have D767, D768, D769, the testimony of

20     Witness Javoric at transcript page 31402 through 3 and the testimony of

21     Witness Sipovac at 28143.

22             JUDGE ORIE:  Mr. Ivetic, you earlier, some ten lines from where

23     we are now, you referred to D1717.  I don't know whether there's a

24     transcription error or whether you misspoke, but could you please check

25     what you have.

Page 44672

 1             MR. IVETIC:  It should be D1771 and page 58 of the same.

 2             JUDGE ORIE:  Thank you, please proceed.

 3             MR. IVETIC:  Again, the mobilisation and service of non-Serbs in

 4     the VRS demonstrates that the VRS and General Mladic did not intend any

 5     kind of genocide, destruction, or removal of non-Serbs, but rather was

 6     engaged in a legitimate defence of all loyal citizens of the

 7     Republika Srpska against armed enemies.  D896 is a list of conscripts and

 8     shows that there were 381 ethnic Croats present, 108 ethnic Bosniaks, 78

 9     Ukrainians, and also some soldiers from other nationalities in

10     Prijedor -- in Prijedor's VRS units.  Rodic explained how he compiled

11     this document.  Bosnian Croats and Muslims accounted for more than

12     10 per cent of the VRS in the Prijedor area throughout the war and some

13     units had 20 to 30 per cent Bosnian Croat and Muslim members in their

14     ranks.  Sipovac testified as to that at 28145, and we see that also in

15     D896, D767.

16             Witness Rodic stated that more than 12 per cent of the personal

17     engaged in the 6th and 2nd Battalions of the 43rd Motorised Brigade were

18     all non-Serb ethnicities and that the Prijedor Garrison Command was

19     resolved to equally protect all citizens in the territory of Prijedor

20     municipality, regardless of their ethnicity, and it invited them to join

21     the ranks of the VRS; D930 [Realtime transcript read in error "D390"],

22     paragraph 23.  Witness Javoric confirmed that units of the VRS which

23     included Croats and Muslims were also engaged in breaking through the

24     corridor, and that was at transcript page 31401.  And Witness Sipovac

25     stated at transcript page 28143:

Page 44673

 1             "The Ljubija Battalion, the 6th Motorised Battalion, was manned

 2     by people from a multi-ethnic area and the makeup included Serbs, Croats,

 3     and Muslims."

 4             If one wants to destroy someone, you don't invite them to join

 5     your army and give them weapons; rather, a contrary conclusion is

 6     available under this evidence.  Are these non-Serb officers and soldiers

 7     of the VRS committing genocide against themselves?  Against their

 8     families?  That defies logic.  The Prosecution case thus defies logic,

 9     and therefore, you must acquit.

10             The Prosecution's misguided theory of the VRS's involvement in

11     genocide is contrary to even Prosecution evidence.  We have P2874, a 21

12     May 1992 order from the command of the 1st Krajina Corps of the VRS which

13     covers the Prijedor area.  In it, the intent is made clear that the VRS

14     is the army not just of the Serb people but of all patriots, as well as

15     of all citizens, who are ready to fight in its ranks for the just goals

16     of the Serbian people, the defence of the territorial integrity of the

17     republic, and peace in these areas.  Most importantly, the order finishes

18     by saying:

19             "This army is fighting for truth, freedom, and the fatherland,

20     for the survival of its own people, for peace and progress, and therefore

21     its conduct, both towards its own people and towards the enemy, must be

22     dignified, moral, and chivalrous."

23             Does that sound like an illegal order to commit crimes?  Or is

24     it, as common sense would dictate, a proper and appropriate order under

25     the circumstances?  Now let's take a brief look at the circumstances, but

Page 44674

 1     before we do, you have to ask yourselves:  How can the Prosecution meet

 2     its high burden to prove -- of proof, especially as to dolus specialus,

 3     of genocide if it cannot show actual orders emanating from the VRS top,

 4     from Mladic himself, to commit genocide in Prijedor?  If their case is so

 5     strong, where are these order?  All they can do is ask you to misconstrue

 6     ambiguities in statements or orders of other, not Mladic.

 7             Now as to the circumstances or context of Prijedor, that must be

 8     understood to understand why people would legitimately leave due to

 9     legitimate combat activities and why armed action against enemy forces in

10     villages were legitimate.  On 29 [Realtime transcript read in error "19"]

11     April 1992, a coded cable arrived from the Bosnian Muslim police

12     headquarters in Sarajevo and instructed Bosnian Muslims to attack the

13     Serbs.  We have that in evidence at D624 and D625.

14             JUDGE FLUEGGE:  Mr. Ivetic, I heard you saying on 29th of April;

15     is that correct?

16             MR. IVETIC:  That's correct, Your Honours, 29 April.

17             JUDGE FLUEGGE:  Then the transcript has to be corrected.  Thank

18     you.

19             MR. IVETIC:  This had been sent by the Bosnian Muslim MUP and the

20     Bosnian Serb TO, Alija Delimustafic, Hasan Efendic, in Sarajevo to their

21     brethren in Prijedor and elsewhere and in Prijedor due to a Muslim

22     officer changing his duty shift, this was discovered by a Serb police

23     officer who replaced him.  Witness Mandzic talked about that at D826,

24     paragraph 9.  As a result, Serb politicians decided - with the assistance

25     of the local police - P288; P7634, page 1; P3917, page 4, they decided to

Page 44675

 1     take over power of the Prijedor municipality and did so on 30 April 1992.

 2     We have that at D895, paragraph 21; D826, paragraph 9.  It must again be

 3     stressed that all these actions were undertaken before General Mladic was

 4     commander of the Main Staff, so how can he held responsible for something

 5     he do not even control?  Again, is he a superhuman being?  Again,

 6     anything more than just the tip of the pyramid, and you must acquit.

 7             The reality of the Serb fear for attacks and the authenticity of

 8     this cable were confirmed by attacks initiated against the JNA on the 2nd

 9     and 3rd of May, 1992, at Dobrovoljacka Street in Sarajevo when the JNA

10     started withdrawing from the Sarajevo barracks, they were attacked by the

11     ABiH.  We have that from Prosecution Witness Doyle at transcript page

12     1599; Exhibit P91, paragraph 94; Exhibit D711, paragraph 2; Exhibit D622,

13     paragraphs 19 through 21; Exhibit D645, paragraph 7, and others.

14             These attacks an actions were in perfect accord with the cable,

15     as it responded to the call for attacks within that cable.  And again,

16     look at the cable, D625.

17             We cannot stress enough that the Serb take-over of power in

18     Prijedor, which was accomplished without a shot being fired and which

19     achieved -- and which was achieve any involvement of General Mladic,

20     resulted in that things were calm and peaceful up until 22nd May, 1992,

21     P3617, page 7; Witness Dragojevic transcript 35605 to 35606.  The

22     evidence shows several initiatives were taken by the Serbs to meet with

23     the Bosnian Muslims and Croats in order to prevent armed conflict.

24     P4160, page 1 through 2; Witness Vujic, transcript page 35053.

25             Things not erupt further in Prijedor until distinction hostile

Page 44676

 1     events undertaken by armed Muslim paramilitary forces which, again, were

 2     taken akin to the actions that were called for in the coded cable we just

 3     talked about.  On 22 May 1992, six VRS soldiers, two of whom were ethnic

 4     Bosnian Croats, were stopped and attacked in Hambarine at a Bosnian

 5     Muslim check-point for no reason.  We see that from D912; P482; P2900,

 6     page 15; D834, pages 2 through 9; D895, paragraphs 22 through 23, among

 7     others.

 8             Several VRS soldiers were killed or wounded including the

 9     non-Serbs, D912; P3987, paragraphs 2 and 10; P482, page 1; D863,

10     paragraph 9, among others.  A few days later, on 24 May 1992, Bosnian

11     Muslim forces attacked again, this time on a VRS military column near

12     Kozarac, D895, paragraph 25; Witness Javoric, transcript page 31491;

13     P4160; P3555.  As is to be expected, these acts staged by Bosnian Muslims

14     created chaos and legitimate fears for both the Serb and non-Serb

15     population.  It goes without saying General Mladic did not control the

16     Muslim forces that started this chaos.  Again it must be stressed that

17     the Prosecution points to the efforts to disarm the non-Serb

18     paramilitaries in these villages and implies that is an essential part of

19     the alleged JCE.  Now, the use to support -- as support for this

20     proposition, an ultimatum issued by Major Zeljaja on 16 May 1992, and

21     this is paragraph 15 of the Prosecution brief as to Prijedor.  We have

22     various evidence indicating that these forces of the Bosnian Muslims from

23     these villages were significantly armed, for instance, P2894, P4061,

24     D390, P7299, among others.  But what is instructive is what are the words

25     that Zeljaja used for this ultimatum?  And I want to read from the

Page 44677

 1     evidence a key Prosecution witness who testified at transcript page 3461

 2     through 5 about these words and he remembered them as being:

 3             "Unless you surrender 7.000 weapons and unless the Serbian flag

 4     is flying over Kozarac and the Serb police have control, I'll raze

 5     Kozarac to the ground."

 6             And he said at the end:

 7             "When you return those weapons, then we can go on talking."

 8             Now, he didn't say:  I will raze the area if you surrender

 9     weapons.  No, he says:  If you surrender weapons, we can negotiate.

10     Well, what is this?  Common sense dictates that it can also be understood

11     as a legitimate example of a military doctrine known as defended city,

12     where a locality refuses to open and vacate military forces, it is a

13     defended city and is a legitimate target so long as it mounts a defence.

14     If it surrenders armaments, then it cannot be attacked.  The Prosecution

15     likes to play word games and in paragraph 18 as to Prijedor they

16     characterise these armed Muslims as "poorly armed" and as members of the

17     "population."

18             But in law, presence of armed combatants or civilians directly

19     engaging in combat and mixing with combatants renders even a civilian

20     area as a defended city as a legitimate target.

21             Now, another Prosecution witness, protected witness so I won't

22     mention the name, testified in P3121 and his recollection of the words of

23     VRS Commander Zeljaja are even more informative, and again, this is still

24     the 16 May 1992 ultimatum.  He recalls:

25             "There can be no negotiations.  There's no more Yugoslav People's

Page 44678

 1     Army.  From today on we are Serbian Army and all members of the

 2     Territorial Defence and the reserve police force are hereby requested to

 3     turn in all of their weapons.  All citizens of Bosniak ethnicity shall

 4     declare their loyalty to the Serbian Republic and shall respond to the

 5     mobilisation into the Serbian Army."

 6             Now, this is similar to what we referred to earlier.  In the

 7     midst of this confrontation, with shots already fired, the VRS is not

 8     telling non-Serbs to leave Prijedor; to the contrary, it is imploring

 9     them to disarm, stay, and become loyal citizens of the Serbian Republic.

10     And all the more, he is asking them to join him in the VRS army.  Now

11     this cannot be warped by the Prosecution into a call to commit genocide

12     against these same persons.  What is further, the Prosecution ignores the

13     greater context of events; namely, prior to this point the BiH has

14     ordered the JNA out of Bosnia and the JNA has agreed to do so weeks

15     prior, D1661, P4412, D829.  And in the greater context, the UN Security

16     Council - in fact, just one day prior on 15 May 1992 - has stated that

17     the Yugoslav Army must depart, so this part of the ultimatum saying there

18     is no more JNA comes directly from that.  We have P2052 talking about the

19     Security Council Resolution.  And now I'd like to look at a slide.  Also

20     in the same resolution, again a day before this ultimatum is issued, UN

21     Security Council Resolution 752 - and we have various documents talking

22     about that in evidence, P2815, P1999, the Donia report at page 85 - this

23     resolution has five demands of the Security Council.  Number five is

24     instructive for us here and it says:

25             "All irregular forces in Bosnia-Herzegovina be disbanded and

Page 44679

 1     disarmed."

 2             So in light of this context, the ultimatum of Zeljaja one day

 3     later takes on a new meaning.  Unless the Prosecution wants to label this

 4     UN Security Council Resolution as their smoking gun, their order to

 5     commit genocide - and if they do then the UN Secretary-General and not

 6     General Mladic should be in the dock - but under this evidence and these

 7     facts, it is reasonable to conclude that the calls to disarm by Zeljaja

 8     were an attempt, perhaps poorly effectuated, but an attempt to comply

 9     with UN resolutions.

10             On 30 May 1992 there was an attack on the town of Prijedor by

11     approximately 80 armed Bosnian Muslim men; that's evidenced at P2876,

12     page 2.  On this day, early in the morning, this Bosnian Muslim and Croat

13     armed group attacked the town of Prijedor causing chaos and surprising

14     everyone.  At this point, the VRS was not yet present in this place.  We

15     have the testimony of Witness Jesic at 29928 [Realtime transcript read in

16     error "29918"] of the transcript, P4068; D1041, paragraph 5; D826,

17     paragraph 21.  It is clear from the evidence that the Bosnian Muslim and

18     Croat forces had a structured plan.  They were well trained and

19     beforehand had multiple groups which were tasked to attack versus key

20     places.  Their aim was to take control over vital buildings in Prijedor,

21     such as the MUP and the municipal building, D930, Witness Rodic; D826,

22     Witness Mandzic, and they succeeded at first.  As they made it to the

23     centre of town, they tried to set the hotel on fire and were engaged in

24     fighting in front of the municipal building, P2876, D930, and Witness

25     Mandic talked about that.

Page 44680

 1             While the Prosecution claims that the old town, also known as

 2     Stari Grad, was attacked by the Serbs as part of a JCE, that's at

 3     paragraph 21 of their Annex A section as to Prijedor, the total picture

 4     shows evidence that Bosnian Muslims and Croats after the attack on the

 5     town of Prijedor withdrew their forces to Stari Grad and engaged in

 6     attacks from that part of the town, D859, paragraph 13; Witness Vujic,

 7     transcript page 34500.  During all the attacks at least 17 members of the

 8     Serb police were killed and a large number was seriously or lightly

 9     wounded, D930, paragraph 11.  Even innocent individuals such as

10     Goran Dragojevic, an ambulance driver; and Witness Jesic were fired upon

11     by the Bosnian Muslim and Croat forces and taken hostage and used as

12     human shields, D1052, page 2; D1049, paragraph 7; Witness Jesic,

13     transcript page 29919.

14             Now, is General Mladic the one ordering these Muslims and Croats

15     to attack Prijedor?  Is he responsible for acts of the enemy?  No.  But

16     these acts had a serious effect on Prijedor and sparked fears.  Let's not

17     forget that ethnic Croats and ethnic Muslims from some of these same

18     villages in Prijedor during World War II attempted a genocide against

19     Serbs.  Recall that much evidence spoke of severe losses borne by Serb

20     households in Prijedor from the world war.  These memories, coupled with

21     the successive armed hostile acts of Hambarine, Kozarac, and the attack

22     on Prijedor - all three involving Bosnian Muslim and Croat armed

23     paramilitary units - well, the effect was that people got scared and they

24     overreacted, not due to any plan from Ratko Mladic, but rather, from

25     genuine home-grown fear of the local population and local leaders that

Page 44681

 1     was triggered by these hostile acts of armed non-Serbs.

 2             And so detention centres were set up and actions were under taken

 3     to arrest non-Serb males suspected of being part of the attacks and they

 4     were investigated and triaged and were to be released when it became

 5     clear they were not involved in attacks, P4160, page 4; P2900, page 30;

 6     P480, page 76.  These centres - Omarska and Keraterm - were not set up by

 7     the VRS.  They were set up and controlled by the local Crisis Staff and

 8     the MUP civilian police, D1041 paragraph 8; P480, pages 20 and 21; P4160,

 9     pages 3 through 4; P2900, page 11 and 30, among other evidence.

10             The army was not involved.  Contrary to the Prosecution's

11     ill-devised implication that the army had a role in these centres.  At

12     paragraph 33 of their final brief as to Prijedor, the Prosecution has

13     even conceded that Keraterm and Omarska were run by the SJB Prijedor, the

14     civilian police.  For both centres, the VRS was requested to take over

15     the management an operation, but the VRS refused and therefore never

16     became involved in it, D1111; D852, paragraph 43.  In Keraterm, the VRS

17     was only located outside the parameter in an out-building of the Keraterm

18     complex but never went inside the centre itself; Witness Rodic talked

19     about that at transcript page 33067.  At Omarska, the VRS only performed

20     guard duty again on the outer parameter outside the compound; Witness

21     Rodic talked about that at transcript page 33110.

22             General Mladic cannot be held responsible for actions of civilian

23     authorities.

24             As for Trnopolje, this was a refugee centre, established again by

25     the Prijedor Crisis Staff and managed by the TO and local police.  We

Page 44682

 1     have Witness Kelecevic at transcript page 37263; P02900, page 2.  Despite

 2     the Prosecution's claims to the contrary, reasonable doubt exists as to

 3     whether and when Kuruzovic was a member of the army.  The Prosecution, in

 4     fact, now presents two differing accounts of the date that Kuruzovic

 5     allegedly was incorporated into the --

 6             JUDGE FLUEGGE:  Mr. Ivetic, your reference to a P document, can

 7     you repeat the number please.

 8             MR. IVETIC:  Gladly.  It should be P02900, page 2.

 9             JUDGE FLUEGGE:  2900.  Thank you.

10             MR. IVETIC:  And now the Prosecution presents two differing

11     accounts of the date that Kuruzovic allegedly was incorporated into the

12     VRS.  Remember, if they present contradictory evidence, reasonable doubt

13     exists and you must acquit.  The evidence is clear that Kuruzovic existed

14     as a part of the separate municipal TO apart from the VRS.  The evidence

15     is clear that the Serbian Prijedor Territorial Defence continued to exist

16     until at least 16 September 1992, D2179.

17             And, Your Honours, I see we're at the time for the first break.

18             JUDGE ORIE:  We are, Mr. Ivetic.  We'll take that break now and

19     we'll resume at ten minutes to 11.00.

20                           --- Recess taken at 10.29 a.m.

21                           --- On resuming at 10.54 a.m.

22             JUDGE ORIE:  Please proceed, Mr. Ivetic.

23             MR. IVETIC:  Thank you, Your Honours.  Before I resume, my

24     colleagues have found a couple of corrections that I can put on record.

25             Temporary transcript page 9, line 4, what is recorded as P7847

Page 44683

 1     should be P3847.  Temporary transcript page 15, line 13, instead of D390

 2     it should be D930.  And temporary transcript page 18, line 2, instead of

 3     transcript page 29918, it should be 29928 for Witness Jesic.

 4             And now I'll resume.

 5             Trnopolje was certainly not a camp or a detention centre as

 6     alleged by the Prosecution in paragraph 41 of their final brief as to

 7     Prijedor.  On the contrary, it was an open reception centre providing

 8     safety for refugees fleeing from the conflict and fleeing from Muslim

 9     extremists, P3528 [sic], P5149, among other documents and witnesses spoke

10     of that.

11             In addition, organisations such as the International Red Cross,

12     Merhamet, and Doctors Without Borders and Pharmacists Without Borders

13     regularly visited the centre, P5149.  This undermines the Prosecution

14     argument that the Serbs had a JCE to commit genocide and destroy these

15     peoples; reasonable doubt exists and you must acquit.

16             In the centres, the police operative officers were the ones who

17     carried out processing and investigative tasks.  Only one VRS member was

18     involved in the alleged mixed interrogation teams and that was

19     Lieutenant-Colonel Majstorovic.  The participation of Majstorovic in

20     these interrogations has to be observed in light of P2895, where

21     Majstorovic is mentioned as being responsible for investigators.

22     Paragraph 4 of this document states that they cannot only be absent with

23     the permission of Simo Drljaca and paragraphs 11 and 15 show they are

24     only allowed to report to Simo Drljaca and not the VRS.

25     General Kelecevic even confirmed that he had no idea Majstorovic was in

Page 44684

 1     Omarska until after the war.  Given this evidence, this clearly

 2     demonstrates that Majstorovic acted of his own accord and under the

 3     instructions of Drljaca and was not even allowed to follow instructions

 4     of the VRS; thus, General Mladic cannot be held responsible.

 5             Now did this atmosphere of fear and chaos in Prijedor contribute

 6     to people leaving?  It probably did, all peoples.  Did regrettable

 7     excesses and even deaths in the way of collateral damage or even killings

 8     happen in combat, clearing the terrain, or in these civilian-run

 9     detention facilities?  Probably, but it was neither intended, planned,

10     ordered, nor known by General Mladic.  We are not here today judging

11     Simo Drljaca of the Prijedor MUP, nor are we judging other local leaders.

12     General Mladic can only answer for his conduct and allegations of his

13     crimes, not the conduct and crimes of others beyond his effective

14     control.

15             One must look at the reporting that comes to General Mladic about

16     the alleged crimes in Keraterm and Omarska.  He does not get much

17     information as these are police centres.  There is evidence, for

18     instance, that for the infamous so-called Room 3 massacre, P161, a report

19     sent to the Main Staff, talks of a mass escape that was attempted and

20     thwarted with 50 prisoners killed in the process.  Now, this report does

21     not raise any illegality in the deaths so as to put General Mladic on

22     notice, nor create a nexus between him and the actions of the police that

23     control Keraterm.  Logically, and reasonably, and in accord with in dubio

24     pro reo, we can conclude a benign and non-criminal conclusion from this

25     report.  Likewise, P248, dated the very next day, talks of a new attempt

Page 44685

 1     to escape, which was thwarted in time.  There is it no talk of deaths.

 2             Now, General Mladic does not have a duty to investigate if the

 3     reporting is accurate based on what is reported in these two reports; as

 4     such, there is no nexus between these incidents - irrespective of whether

 5     a crime or not - and General Mladic.

 6             As to Omarska, the evidence is clear that no reporting came to

 7     Mladic.  SJB Chief Drljaca was in charge of Omarska, P4136, just as he

 8     was in charge of Keraterm.  In evidence we have P2895 and at pages 2 to 3

 9     it states that security services at the collection centre shall be

10     provided by the Omarska police station.  This document signed by Drljaca

11     also states:

12             "I most strictly prohibit giving any information whatsoever

13     concerning the functioning of this collection centre.  All official

14     documents shall be kept at the collection centre and may be taken out or

15     destroyed only with the permission of the chief of the Prijedor public

16     security station.  This shall be the responsibility of the security

17     staff."

18             The implementation of this order was supposed to be supervised by

19     Police Chief Dusan Jankovic.

20             If can I have the next slide, next, there.  I may have talked

21     about this earlier, but in the Prosecution's brief they imply that

22     General Mladic issued an order for these MUP camps to be cleaned up

23     before a visit of the ICRC and media.  And what we have on the screen is

24     P2879 which the Prosecution uses as support for this.  But if you look at

25     the recipients, is it sent to Keraterm or Omarska?  No, it isn't.  It is

Page 44686

 1     in relation to only Omarska and Keraterm?  No, it didn't.  As is plainly

 2     evident from the plain text of this order, Mladic is telling the

 3     subordinate commander to prepare for a visit to several places including,

 4     Manjaca, which is a VRS facility, and asks that the subordinate commander

 5     contact the MUP in relation to other facilities on the Territorial

 6     Defence.  If Mladic were directing the actions at Omarska and Keraterm,

 7     he would send this order directly to those facilities an order them to do

 8     so; he cannot.

 9             Now, let's go to the next slide.  And if we look at another

10     document, P201, and this is Talic's order after receiving the previous

11     order from Mladic.  And, again, he can send it straight to Manjaca

12     because Manjaca is a VRS facility, but he has no authority as to Omarska,

13     Keraterm, or Trnopolje, and that is why he has to send this order to the

14     civilian police station in Prijedor.  You cannot mistake these two

15     documents as the VRS having any role in Omarska, Keraterm, and Trnopolje.

16     It is just by nature of the fact that the same visit also included

17     Manjaca.  Now, we also have other evidence that the media and ICRC

18     required civilian approval for this trip.  P205 is a memorialisation of

19     that same on film and P200 as well.

20             Now, let's get back to the knowledge of General Mladic as to all

21     those actions in the various villages to disarm and clear the terrain in

22     Prijedor.  And as a starting point, the Prosecution attempts to place a

23     nefarious and illegal connotation to a legitimate military term and

24     tactic known as clearing up or cleansing the terrain, "ciscenje," and

25     sometimes it's referred to as mopping up.  Their own insider witness who

Page 44687

 1     is protected, so again I will not say the name, by RM097 at our trial

 2     differentiated between legitimate military "ciscenje," as taught in the

 3     JNA, from any forceable removal of civilians as claimed by the OTP.  This

 4     was at transcript pages 17845 to 17847.  There can be no doubt that

 5     "ciscenje," as used in the military sense, does not include the forceable

 6     removals that this witness claimed to have seen.

 7             And I think we have one more slide.  But now let's look at P2440

 8     from the 6th Partisan Brigade signed by Colonel Basara, and the same

 9     protected Prosecution witness we talked about confirmed that this

10     appeared to be the same operation he was talking about as to Prijedor

11     villages where he saw this activity that was different from "ciscenje."

12     And in this order, first we see in item 2 of the same:

13             "Destroy armed enemy groups with sudden fire, and take unarmed

14     persons fit for combat to the Milin Birt area, from where they will be

15     transported onward.  Leave women, children, and old men in their homes."

16             And then on page 3 of this document which is the second excerpt

17     on the screen, we have a supplement to this order that says:

18             "Do not set fire to houses.  Looting is forbidden.  Leave the

19     population alone if they are peaceful.  Only lock up the extremists.

20     Liquidate armed groups."

21             Thus, Your Honours, based upon these order, anyone persons seen

22     by any witness claimed to be VRS who are forcing civilians from their

23     homes in this operation are acting contrary to the express orders of the

24     VRS, and therefore cannot be a basis for the liability of General Mladic

25     unless he has knowledge of those actions.

Page 44688

 1             JUDGE FLUEGGE:  Mr. Ivetic.

 2             MR. IVETIC:  Yes.

 3             JUDGE FLUEGGE:  Could you provide with us the date of this

 4     document?

 5             MR. IVETIC:  Mm-hm.  We could get that perhaps by the next break,

 6     Your Honours.

 7             JUDGE FLUEGGE:  Thank you.

 8             MR. IVETIC:  Now, if we look at the body of evidence as to the

 9     reporting on these activities, we see no such information or knowledge of

10     crimes being reported to Mladic.  The Prosecution highlights several

11     reports in paragraph 19 of its final brief as to Prijedor, but if one

12     actually reads the documents cited by the Prosecution in this paragraph,

13     all the other evidence also cited, we see that none of these give notice

14     of crimes against civilians, but rather talk of legitimate military

15     actions against Green Berets and members of paramilitary formations.

16             And, Your Honour, as to your question, P2440 is dated the 18th of

17     June, 1992.

18             JUDGE FLUEGGE:  Thank you.

19             MR. IVETIC:  Again, if General Mladic is getting this kind of

20     reporting, even if perhaps not entirely accurate, he cannot be blamed for

21     the actions.  Lastly on this topic, the Prosecution attempts to raise a

22     lot of smoke and mirrors by referring to a report by Talic to the

23     Main Staff, P3697, and this is at paragraph 25 of their final brief.  But

24     Talic is reporting that all activities are proceeding in accord with

25     Directive 1.  Now, the Prosecution would like to imply that this means

Page 44689

 1     that it's talking about crimes, but if we recall Directive 1 and if we

 2     think about how Mladic - familiar with Directive 1 - would understand

 3     things are proceeding in accord with Directive 1, P474 was Directive 1,

 4     and we saw it earlier last week and it talked about treating -- about how

 5     to treat the civilian population that was not engaged in war properly and

 6     treating POWs in accord with law.  So if Talic is reporting that

 7     everything is proceeding in accord with Directive 1, there can be no

 8     notice of any criminal activity.

 9             Now remarkably in the final brief the Prosecution spend a lot of

10     time talking about and intending to prove VRS involvement in the crimes

11     at Koricanske Stijene, that is paragraphs 46 and 47 of their brief.  I'm

12     shocked again that the Prosecution resorts to raising an

13     unscheduled incident that has been crossed out because this was dropped

14     from the indictment as 13.6, and thus it is wholly improper to try to

15     revive that charge at the final brief stage.  I have already talked about

16     that last week and again would stress that Your Honours should enter an

17     acquittal if the Prosecution insists in seeking a conviction for

18     Koricanske Stijene.

19             Now, even apart from the procedural and legal aspect, all the

20     evidence demonstrates that it was not the VRS but rather the police

21     intervention squad of the MUP - and again Simo Drljaca - who were

22     involved in Koricanske Stijene.  The -- all the orders received as to

23     Koricanske Stijene came from the MUP, P2432.  Rather, the VRS acted the

24     opposite of the police.  As soon as the VRS commander was involved of

25     this incident, Peulic, he sent soldiers to the spot.  He didn't send them

Page 44690

 1     to cover up the crime or kill anyone, but to see what could be done to

 2     save any victims.  And survivors were taken by the VRS to the hospital,

 3     transcript page 2075; P154, paragraph 34; D887, paragraph 19.

 4             And, again, we have evidence that Drljaca and the MUP undertook

 5     to cover up these crimes.  After Koricanske Stijene, there was a meeting

 6     with police officials at the Prijedor SUP to discuss what happened; the

 7     VRS was not present, P2432.  And as soon as Drljaca noticed there would

 8     be an investigation into the incident, he tried to cover it up and

 9     responded to the Banja Luka security service that it was not possible to

10     conduct an investigation as the men were sent to Han Pijesak.

11             P2342 indicates that the MUP police destroyed all documentation

12     about Koricanske Stijene and other crimes of the intervention platoon,

13     that's at pages 52 through 53 and 85.  These methods cannot be attributed

14     in any way to the VRS and General Mladic.  The allegation of the

15     Prosecution in paragraph 47 of their final brief that some men were

16     deployed to Han Pijesak as VRS members after they did the

17     Koricanske Stijene crimes is not true.  The intervention platoon were

18     sent as members of a SUP mission to Han Pijesak, RM097; P2432, page 86.

19             Therefore, all the mentioned evidence can only lead to one

20     possible conclusion:  General Mladic is not responsible for the

21     unscheduled incident in Koricanske Stijene.

22             Now I want to move a related area, the Tomasica evidence, which

23     was part of the re-opening of the Prosecution case.  The Prosecution

24     presented a total of six purported experts as to Tomasica, yet this

25     evidence was rather unspectacular and thin such that no findings of

Page 44691

 1     criminal liability could be supported by the same.  This was acknowledged

 2     by the Trial Chamber in relation to several of the witnesses, including

 3     forensic ballistics expert Franjic and forensic DNA expert Karahasanovic.

 4             The Prosecution also presented a handful of fact witnesses.  None

 5     of these could establish beyond requisite doubt any involvement of VRS

 6     personnel participating in the burials at Tomasica under orders from

 7     Ratko Mladic.  Yet the Prosecution dramatically at paragraph 48 of the

 8     Prijedor section of their final brief states:

 9             "The role of the VRS and other authorities in using mass graves

10     to conceal crimes in Prijedor is encapsulated by the Tomasica mass grave

11     and related sites."

12             And claims bodies were disposed in the grave by VRS soldiers.

13     But the Prosecution evidence does not establish that the only reasonable

14     conclusion available is that the VRS was involved in the burials.

15     Rather, the evidence raises the more logical conclusion that it was

16     civilian MUP that performed this task.  The main Prosecution witness

17     stated that he received orders from Radisa Ljesnjak and that no VRS

18     member was seen on the site of the grave; that's at transcript page 36210

19     to 36211.  The man who was implicated, Radisa Ljesnjak, was never a

20     member of the VRS according to other evidence, D1081, D1359.  Defence

21     evidence points to him being a member of the MUP, D1081; and Prosecution

22     evidence indicated he might be a member of the Crisis Staff, P7311,

23     paragraph 2.

24             The Prosecution has not presented any evidence to indicate that

25     Ljesnjak was a member of the VRS.  The Prosecution's own evidence further

Page 44692

 1     points that all individuals involved in the burials, such as the

 2     bulldozer operator and people accompanying the truck, wore civilian

 3     clothes.  I refer you to the evidence of -- transcript page 36189, 36211.

 4             The only persons in uniform both wearing camouflage JNA uniforms

 5     were Ljesnjak and Simo Drljaca of the SJB Prijedor, both of whom were

 6     present at the burials, P7311, paragraph 8.  Now, in evidence it is clear

 7     that - especially in Prijedor - police wore similar if not identical

 8     uniforms to the army and the average person can be mistaken as the same.

 9     Let's look at some of the Prosecution evidence in living colour on the

10     next slide.

11             Here we see stills from versus Prosecution videos of persons in

12     Prijedor.  On the top left, we see Mr. Drljaca, who we know to be the SJB

13     police chief, wearing a military uniform.  The Prosecution's own witness,

14     Vulliamy further --

15             JUDGE FLUEGGE:  Mr. Ivetic, you should slow down.  I think the

16     court reporter has some problems to follow.

17             MR. IVETIC:  Thank you.  And I apologise.

18             The Prosecution's own witness Edward Vulliamy further identified

19     those in the various videos, such that in the middle we have one of the

20     Omarska guards in military camouflage uniform and across the top we have

21     the -- again, Mr. Drljaca in uniform.  Then across the bottom we have

22     Mr. Stakic in camouflage uniform.  And most instructive is the last

23     picture where we see Mr. Stakic, Mr. Kovacevic, Mr. Drljaca, and

24     Colonel Arsic with everyone except Kovacevic wearing the same

25     military-style uniforms and Kovacevic is wearing a US military T-shirt.

Page 44693

 1     So this shows that the MUP, civilian organs, and the VRS in Prijedor all

 2     wore military camouflage uniforms.  Given that there is this overlap of

 3     persons in uniform -- that is, of course, P3278, P205, and P212.

 4             Given that there is this overlap of persons in uniform in

 5     Prijedor, identifications based solely on uniforms, whether in regard to

 6     Tomasica or another aspect of Prijedor, like the Omarska, Keraterm, and

 7     Trnopolje camps, must be taken suspect and the conclusion remains

 8     possible that MUP personnel are being misidentified and mistaken for VRS

 9     soldiers.

10             As to Tomasica, one Prosecution witness talks of military police

11     who allegedly assisted in the transcript of bodies to Tomasica from

12     Keraterm; his statement is P7314 and this is at paragraphs 16 to 18.

13     There is a slight problem with his testimony, however.  Among the

14     "military policemen" that he sees in uniform and driving the "military

15     police" civilian car in front of him are, in fact, known MUP members.  He

16     identifies by name Sikirica, the Keraterm commander as we know him; and

17     Dosen, whom we know to be one of the shift commanders; and he includes

18     them as being dressed with white belts and thus part of the military

19     police.  Again, the Prosecution has already conceded Keraterm was run by

20     the MUP, specifically SJB Prijedor.  P7313 indicates that MUP guards at

21     Keraterm wore military uniforms.

22             Now, the Prosecution witness in question can be forgiven for

23     misidentifying MUP at Keraterm as VRS military police, but the

24     Prosecution cannot.  They prosecuted and convicted both Dosen and

25     Sikirica as police personnel before this very same Tribunal.  They cannot

Page 44694

 1     feign ignorance.  They cite to Sikirica's conviction in footnote 349 of

 2     their final brief.  The minute they tender a statement that affirmatively

 3     claims that VRS were involved and that Sikirica and Dosen were two of

 4     those VRS involved, they have an affirmative obligation and duty to tell

 5     this court:  Your Honours, we note pursuant to our duty of candor that

 6     both Dosen and Sikirica are SJB MUP and not VRS.  Instead of this, the

 7     Prosecution dares to present this faulty statement as affirmative proof

 8     of VRS involvement, as some of the primary proof.

 9             During closing they also mentioned talk of other witnesses who

10     saw persons in military uniforms at the burials.  First, this is

11     inconsistent with the other evidence that everyone was in civilian

12     clothes; that is reasonable doubt.  Second, that ignores the fact which

13     we have now talked about that even police and civilian personnel wore

14     uniforms; this is reasonable doubt.  Likewise, persons mobilised for work

15     duty, such as drivers, also were forced to wear a uniform, as the

16     Prosecution's other evidence demonstrates; this, too, is reasonable

17     doubt.

18             Now let's look at how else the Tomasica burials are linked by the

19     Prosecution to Ratko Mladic and the VRS.  The Prosecution claims that

20     machinery of the VRS was used, but the evidence is that VRS equipment was

21     in Gradacac, in Modrica municipality, not Prijedor, 140 kilometres away

22     at this time.  Witness Vujic talked about that.  Transcript page 41507.

23             Your Honours may recall that the Prosecution attempted to present

24     expert evidence by way of a report, P7441, prepared by forensic officers

25     of the BiH investigating authorities, but they brought only one of three

Page 44695

 1     experts who signed the report, Witness Karahasanovic.  After

 2     cross-examination and the witness disavowing her ability to discuss the

 3     expertise of the two remaining parts of the report, you - Judges Orie,

 4     Fluegge, Moloto - affirmatively ruled that you will not rely on the

 5     dactyloscopy part or chemical part of the report co-authored by

 6     Karahasanovic unless the other experts were called to testified.  That's

 7     at transcript page 36555, 36567.  But those witnesses were not brought,

 8     and thus the relevant parts of P7441 must be concluded from consideration

 9     as evidence.  This includes the purported identification of JNA or

10     VRS-style gas masks unearthed at Tomasica.  Thus, it is shocking that

11     although the Prosecution did not bring the experts in question to be

12     crossed on the identification of the gas mask, they still want to rely on

13     the same to prove the guilt of Ratko Mladic.  And this is even after

14     Your Honours have twice says you will not rely upon that part of the

15     investigative report.  They cite to this evidence you have excluded in

16     footnote 304 of paragraph 50 of their Prijedor final brief.

17             Now, because I want to leave no doubt - and this shows how

18     desperate the Prosecution is - the identification of the gas mask was

19     called into question in the cross of Karahasanovic, who again could not

20     answer because her absent colleague did that part of the report.

21             May we have the next slide.

22             But, Your Honour, they say a picture is worth a thousand words,

23     and so let's look together at what evidence shows us to be both the

24     civilian and the military gas mask in question.  And this is in evidence

25     as D1090, the last page of that document is what we're looking at now on

Page 44696

 1     the screen.

 2             Now are they telling us that without an expert you are allowed to

 3     guess and conclude that the mask in question ask a VRS and army model, as

 4     opposed to the nearly identical civilian model?  That for that a mask

 5     that has been buried for decades?

 6             Now, I won't even dwell on how the Bosnian MUP witnesses couldn't

 7     get their story straight as to who opened the evidence bags, who carried

 8     the evidence bags.  Both Franjic and Karahasanovic pointed the finger

 9     elsewhere.

10             Now, if you follow the law, if you adhere to in dubio pro reo and

11     the burden of proof, no link can be concluded as to Tomasica under this

12     evidence for my client, Ratko Mladic, and you must acquit.

13             Now let's look at another Prosecution tactic as to Tomasica.  In

14     paragraph 52 of their final trial brief as to Prijedor, they make the

15     claim that:

16             "Evidence from autopsies of persons most recently exhumed is

17     consistent with execution-style killings."

18             And they cite to Dr. John Clark and they go on to focus on the

19     number of injuries to the head as indicative of an execution.  But,

20     Your Honours, Dr. Clark was too smart to go beyond what the forensic

21     science indicated and expressly disavowed this Prosecution position under

22     oath.  Rather than confirm that an execution was the cause of death,

23     Dr. Clark admitted that he was not able to exclude the fact that people

24     were killed in combat, transcript page 36651.  And, in fact, Dr. Clark

25     expressly deadlined to conclude based on the high frequency of head

Page 44697

 1     wounds that the deceased died as part of an execution, transcript page

 2     36681 through 4.  So why isn't the Prosecution honest and truthful about

 3     the evidence?  Why does it want to put words in Clark's mouth that he did

 4     not agree to?

 5             Apart from Prosecution counsel, Ewa Tabeau also wanted so

 6     desperately to prove executions that she put words in Dr. Clark's mouth

 7     that he did not utter.  Tabeau claimed the deceased were subjected to

 8     shooting from machine-guns or sometimes handguns, indicative of being

 9     machine-gunned down, P7449, page 23.  Tabeau initially claimed that this

10     was based on Dr. Clark's findings and that he supported her conclusion

11     that these people had been victims of execution, transcript page 36807,

12     36808, 36830, 36831.

13             However, after being confronted with the fact that even

14     Dr. Clark's, on whose report she relied, did not use the term

15     "machine-guns," Tabeau was forced to admit that while Clark used the term

16     "high-velocity rifle," she mistakenly read that as "machine-gun" instead

17     of the same and based on her erroneous conclusion.

18             Thus, we have the Prosecution and Ewa Tabeau, so emotionally

19     desperate to convince Your Honours to convict my client that they would

20     misstate the evidence.  Only an acquittal can remedy such a flagrant

21     disrespect for justice and due process on the part of the Prosecution and

22     Dr. Tabeau.  I will only remind you that Dr. Stankovic clarified for us

23     that in combat, the most often targeted and struck parts of the body are

24     the head and the chest.

25             Lastly, as to Tomasica, the Prosecution in paragraph 57 of their

Page 44698

 1     brief as to Prijedor misrepresent again a reference from what they claim

 2     to be the notebook of Ratko Mladic as to the knowledge of Simo Drljaca's

 3     cover-up in Tomasica.  Assuming and taking the Prosecution at its word

 4     that this is Mladic's notebook, their evidence at best establishes a

 5     totally different conclusion.  Given that this document is purported to

 6     be the notebook of the accused, it is thus illustrative to take this as

 7     evidence of no orders being issued by the accused to assist in burials or

 8     reburials or attempts to hide events in Tomasica.  To the contrary, this

 9     document records the response of the accused to have been and is recorded

10     as my position:  They killed them so they should get rid of them and an

11     investigation must be launched in connection with this case and the

12     information retained well, to prevent it getting into the hands of

13     unauthorised people.

14             Thus, under this evidence, it is clear that the VRS and accused

15     are hearing for the first time in 1993 about Tomasica, and the accused

16     did not approve of the Tomasica burials nor reburials and did not

17     authorise his subordinates to assist in the same but ordered that an

18     appropriate investigation be launched into the events an actions of the

19     MUP surrounding Tomasica and that the results of the investigation be

20     safe-guarded for the appropriate, authorised organs to deal with.

21             Under this set of facts, any individual VRS soldiers who may have

22     participated in any aspect of Tomasica alongside the MUP would have done

23     so without authorisation, for personal, individual reasons, and not under

24     any orders from VRS commanders.  In fact, they would be acting directly

25     contrary to the only orders alleged to be issued by the accused,

Page 44699

 1     Ratko Mladic, according to the Prosecution's own evidence.  Thus, no

 2     criminal responsibility could attach to the accused from the same.

 3             By the way, we heard a lot the other week, last week, from the

 4     Prosecution during their closing arguments that General Mladic and

 5     Mr. Drljaca were somehow close.  This is a new tale that we hear for the

 6     first time in closing.  Where is the evidence of such a relationship?

 7     Why is the evidence as to Prijedor full of references to Drljaca and no

 8     sign of Mladic with him?  If anything, the Tomasica situation we have

 9     just been discussing demonstrates that General Mladic was neither close

10     to Drljaca nor a fan of his.  The Tomasica entry from the alleged

11     notebook of the accused, which the Prosecution wants us to believe to be

12     authentic, demonstrates bitterness and animosity of Mladic towards

13     Drljaca.  Further, it demonstrates that Drljaca hid Tomasica from Mladic.

14     Under such evidence, the Prosecution's claim that Mladic and Drljaca were

15     best buddies is unsubstantial.  Remember, if they are trying to push more

16     than just the tip of the pyramid of the burden of proof, that means

17     reasonable doubt and you must acquit.

18             Moving to the Prosecution's case as to overarching JCE, and I

19     think we have a second slideshow for that.  The Prosecution has failed to

20     meet its burden of proof and thus no configuration can enter for

21     General Mladic for the following reasons.

22             Under the 1974 SFRY Constitution, Bosnia-Herzegovina functioned

23     as a tripartite governing system comprising the three ethnic groups, with

24     a number of mechanisms employed to safe-guard equality between the

25     groups.  Witnesses Dodik and Kecmanovic testified as to that at

Page 44700

 1     transcript page 42212 and 23807.  The Bosnian Muslim and Croat parties

 2     violated this constitution to seek independence, while the Bosnian Serbs

 3     worked in good faith toward a peaceful solution, believing "it was better

 4     to negotiate for years than wage war for a few days," Witness Barasin,

 5     transcript page 28773.  But the SDA began preparing for war by

 6     stockpiling weapons and arming themselves; D619, D614, D790 - among other

 7     evidence - demonstrates that.

 8             The effect of seeing Bosnian Muslims and Bosnian Croats forming

 9     armed groups filled the Serbs with fear and panic, D675.  The atmosphere

10     of insecurity and fear was heightened when Muslim paramilitary groups

11     began to mount attacks, D1690, page 8; D789, paragraph 36, including on

12     Serb villages such as in Vecici, D1030.  The atmosphere began to worsen

13     with growing tensions described as "catastrophic," "absolute

14     lawlessness," and "with chaos and terror against the members of the JNA."

15     D414, page 1.

16             It was during this time on 12 May 1992 that the accused was

17     appointed VRS Main Staff commander.  General Mladic was tasked with

18     creating an army from a range of disparate group, including

19     municipal-backed military groups, former Territorial Defence units,

20     civilian conscripts, reserve officers, and volunteers, all with varying

21     degrees of combat experience and skill.  Integrating these distinct and

22     structurally separate groups was a long and protracted process;

23     witness Kovac testified about that, transcript page 41356 and 7.

24             The accused is alleged to have contributed to the overarching JCE

25     through his skilled and effective use of command and control as VRS

Page 44701

 1     Main Staff commander.  Yet, during these initial stages, General Mladic's

 2     command and control was compromised by a number of factors.

 3             The Prosecution in their closing arguments alleged that the JNA

 4     2nd Military District was a "well-functioning military that was part of

 5     the JCE in Bosnia," transcript page 44389.  And they allege that Mladic

 6     took over this well-functioning military when appointed VRS Main Staff

 7     commander.  Yet, what the Prosecution fails to mention is in its

 8     inception, the VRS Main Staff comprised only 12 officers, five of whom

 9     were generals.  Both military experts of the Prosecution told us that,

10     Butler at 16630 of the transcript and Dannatt at 19165 of the transcript.

11     The VRS Main Staff was also positioned at the reserve command post of the

12     1st Army from Belgrade; Mr. Theunens discussed that at transcript page

13     20513.  While the ABiH in Sarajevo on the other hand, inherited the

14     buildings of the former JNA 4th Corps Command, D608, paragraph 21, which

15     was a much better-equipped command position.  Yet, the Prosecution would

16     have you believe Ratko Mladic and his 12 men were the league of

17     superheros to take on the ABiH and the whole world.

18             The lack of professionally trained soldiers, officers, and junior

19     officers created a lack of stabilisation for the entire army, Prosecution

20     Witness Milovanovic, transcript page 17110, P4381.  This was discussed

21     extensively in the Defence final trial brief at paragraphs 651 to 676.

22     Some examples include:  Milorad Sehovac, a brigade commander in the SRK,

23     who complained that his brigade was meant to be staffed with 82 officers

24     but he only had three, including himself, D559, paragraph 31.

25             How is it reasonable to assume that three professionally trained

Page 44702

 1     officers could exercise complete command and control over approximately

 2     1.172 conscripts?  D566, page 5.  Similarly, on 5 March 1993,

 3     Colonel Balic of the 1st Birac Brigade reported a serious shortage of

 4     active-duty officers at the level of platoons, companies, and battalions,

 5     P5241, page 2.

 6             Another major factor that compromised the general's ability to

 7     exercise effective command and control over VRS forces was the failure of

 8     the civilian leadership to declare a state of war.  This created, as

 9     General Sokanovic testified, many problems.  A state of war had not been

10     declared so that the army operated and worked under peacetime rules, even

11     though it was in war already.  That made command very difficult but also

12     the other activities and responsibilities of the commands.  That's what

13     General Sokanovic told us at transcript page 35679, we also have that in

14     P2201, paragraphs 4 through 9 and 11 [sic].

15             VRS soldiers took advantage of this by abandoning their

16     positions, P5241, and generally ignoring orders to remain and fight,

17     D1661.

18             While the Prosecution would have you believe that the accused had

19     absolute authority to run the war - that's what they said in their

20     closing, transcript page 44332 to 44336 - the material facts show a

21     radically different story.  There was a high degree of consolidation of

22     power in the hands of President Karadzic that existed throughout the war,

23     Witness Milovanovic, transcript 16909.  And this was argued in the

24     Defence final brief at paragraphs 551 to 577 and 648.  The Supreme

25     Command, staffed with political leaders only, was the strategic

Page 44703

 1     decision-making body at the top of the VRS command, General Milovanovic,

 2     transcript page 16909.  Remarkably, General Mladic did not have a right

 3     to vote on the decisions of the Supreme Command and was allowed to attend

 4     sessions by "invitation only," P3042.

 5             Other limitations on the general's authority include his

 6     inability to exert influence over the selection of corps commanders,

 7     which was the exclusive right of the civilian leadership, P2200.  Nor

 8     could he influence the development of the six strategic objectives beyond

 9     normal military operations, Prosecution expert Donia, transcript page

10     15525 through 6; and General Milovanovic, T16973 through 4.

11             Whilst the Prosecution has attempted to convince the Court that

12     General Mladic and President Karadzic "talked about things as brothers"

13     and that their aim was "to move together towards the same goal,"

14     transcript 44334, how is that view reconciled with the evidence of

15     Karadzic's attempts to remove Mladic from his position as VRS commander,

16     once in September 1993 and again 4 August 1995?  This is discussed in the

17     Defence brief, paragraph 565, and Prosecution Witness Skrbic at

18     transcript 14012, 14013.  Far from being a collective leadership working

19     together to carry out the supposed common criminal plan, the relationship

20     between Karadzic and Mladic did not extend beyond normal operational

21     co-operation.  This reveals no JCE could exist.  This reveals reasonable

22     doubt.

23             The Prosecution argued in its closing arguments at transcript

24     page 44332 that the Defence distorts the concept of chain of command and

25     renders it meaningless.  The Defence reiterates:  General Mladic issued

Page 44704

 1     orders from the strategic level of command, but it was corps commanders

 2     at the operative level who decided how the action would be carried out,

 3     that's in paragraph 644 of the Defence brief and also in P2201,

 4     paragraph 2.5; and then the operative level corps commanders would decide

 5     how they are subordinates at the tactical level would carry out the

 6     mission.

 7             This is precisely how General Dannatt of the Prosecution

 8     described NATO armies as operating, P2629, paragraph 36.  So why does the

 9     Prosecution have to disavow its own military experts time and again?  The

10     Prosecution wants the Chamber to believe that the accused wielded

11     exclusive control over the VRS at all command levels, but this is not

12     reflected by the evidence, Defence final brief paragraph 643 to 647.  The

13     accused was limited by the principles and structure of the VRS.  He could

14     not act with impunity, nor did he wield absolutely authority.

15             Your Honours, I think we're again at the next break.

16             JUDGE ORIE:  Yes, I saw you looking at the clock already a minute

17     ago, so I was confident that you would not forget it.

18             We take a break and we resume at quarter past midday.

19                           --- Recess taken at 11.55 a.m.

20                           --- On resuming at 12.17 p.m.

21             JUDGE ORIE:  Please proceed, Mr. Ivetic.

22             MR. IVETIC:  Thank you, Your Honours.  I have two corrections to

23     the transcript that are the result of my mistakes.  At temporary

24     transcript page 21, line 20, what has been recorded as P3528 should, in

25     fact, be P3258.  And, again, that was because I misspoke the number.  And

Page 44705

 1     also on temporary transcript page 40, line 15, I misspoke as to P2201,

 2     where I said paragraphs 4 through 9 and 11, I meant to say,

 3     paragraphs 4.9 through 4.11.

 4             And now I will resume.

 5             Lastly, the limited access to reliable communications and the

 6     inability to receive correct realtime combat-related information

 7     negatively affected the general's ability to effectively command and

 8     control subordinates.  Whilst the VRS employed a comprehensive reporting

 9     system, including daily combat reports, these reports were compiled and

10     given to the Supreme Command, and unless the general actively inquired

11     about them, he was not made aware of them, Witness Trkulja, transcript

12     page 35069 through 35072; Witness Banduka, transcript page 27310.

13             There were instances where VRS subordinates would act outside

14     their orders without the general's knowledge.  This severely compromised

15     his ability to effectively command and control the VRS forces.

16     Prosecution Witness RM511 recalled serious problems with officers

17     undertaking actions at their own will, transcript page 5068 to 9.

18             In evidence we even have one incident that involved an officer

19     who, without his commander's consent or knowledge, led a group with the

20     intention of capturing Mojmilo.  This group suffered serious losses and

21     the Commanding Officer -- and pardon me, and the officer's move was

22     described in evidence as reckless and not the behaviour of a properly

23     trained soldier.  And we have that in transcript page 5068 through 5069.

24             The record also revealed why the accused had good reason to

25     consider reports of internationals and international media unreliable.

Page 44706

 1     First, he considered the internationals biased against the Serbs.  For

 2     example, I refer the Chamber to paragraphs 1728 to 1733 of the Defence

 3     final brief for UNPROFOR bias in Sarajevo, such as selective

 4     investigations and heavy reliance upon ABiH data and personnel, as

 5     evidenced by the testimony of several Prosecution and Defence witnesses

 6     such as Mole, Fraser, Thomas, and Moroz.

 7             Second, the accused was aware of all the disinformation spread by

 8     the ABiH, discussed at paragraphs 2507 through 2512 of the Defence final

 9     brief.  These include BiH government and their frequent exaggerations of

10     the situation to provoke an international response, D1298, paragraph 19.

11             Third, we saw numerous examples of the international media

12     misrepresenting incidents to the ABiH side's advantage discussed at

13     paragraphs 2515 to 2517.

14             In Srebrenica, UNPROFOR was well aware of weapon supplies to the

15     ABiH through, for example, Tuzla airport, which was under UN control.  It

16     was a continuing effort to move weapons into Srebrenica and Zepa in order

17     to keep the 28th Division supplied, expert of the Prosecution, Butler, at

18     transcript page 16706 to 16707.  For instance, a Turkish C-130 aircraft

19     escorted by US F16s landed at Tuzla while the radars were turned off,

20     D1240, paragraph 13.  This aircraft supplied the Bosnian Muslims with

21     weapon, Witness GRM037, transcript page 39017 through 8.  However, no

22     action was taken to prevent the Bosnian Muslim violation of the UN

23     Security Council Resolutions prohibiting the import of weapons and

24     military equipment.  In contrast, force or actions against the VRS were

25     just a question of "waiting for an event to occur."  That was

Page 44707

 1     General Rupert Smith, transcript page 7417 through 7419.

 2             Although Srebrenica was meant to be a safe haven, UNPROFOR did

 3     not demilitarise Srebrenica in 1993 through 1995 following the

 4     demilitarization agreements.  Similarly, DutchBat failed to disarm the

 5     28th Division, P23, Witness Van Duijn, transcript page 10334 to 10336;

 6     Witness Franken, transcript page 10751 through 10752.

 7             Although the UN set up a weapons collection point in Srebrenica,

 8     Bosnian Muslims only surrendered old and non-functioning weaponry, D270,

 9     page 5; Prosecution expert Butler at 16793 of the transcript.  And Egbers

10     testified that these were weapons which were of no interest the Bosnian

11     Muslim side, 13400 to 401.  Again, no reaction of the UN.

12             Smuggling goods through humanitarian convoys was also a common

13     method used in Srebrenica, Zepa, and Gorazde, D1615 and the testimony of

14     GRM037 at 39018 of the transcript.  Multiple UN officials even

15     acknowledged that these convoys were used to supply the ABiH, transcript

16     page 7528, General Smith; transcript page 10673 through 10674,

17     General Nikolai as to Sarajevo.  But they never took -- never undertook

18     action to prevent it.  Similarly, the UN was well aware of the

19     black-market in Srebrenica, as Colonel Boering told us about at page

20     10038.

21             If we can have the next slide.

22             In addition, multiple witnesses have talked about UN bias and

23     weapon smuggling occurred in Gorazde and Bihac.  For example, in Gorazde

24     GRM097 was shocked to see Bosnian Muslim soldiers descending from an UNMO

25     vehicle, transcript page 40089, 40089.  And as former UN officer

Page 44708

 1     Jan Segers testified, around Bihac even UN personnel were involved in

 2     smuggling for the ABiH side.  Segers also stated that helicopters were

 3     being used to smuggle ammunition cases during the time of the embargo,

 4     D1465, page 4; D1466, page 3.

 5             A 29 May 1993 message from the Zagreb embassy of BiH - which we

 6     have up on our screen at the moment and in evidence that is D362 -

 7     confirms that extensive military weapons supplies were sent from Croatia

 8     to Bihac.

 9             JUDGE FLUEGGE:  I'm not sure that we have the right slide.

10             MR. IVETIC:  I think we need the prior slide on that one.

11     Whoops.  Yeah.

12             Now, General Mladic constantly complained about smuggling

13     practices and the UN's role in this regard, D142, pages 1 through 2;

14     P785, paragraph 57 evidence that.  However, nothing was done with these

15     legitimate complaints.  Does all this evidence demonstrate that the UN

16     was impartial and treating Serbs the same as the ABiH?  No, it's open to

17     another interpretation.

18             Now if we can have the next slide.

19             The record also revealed why the accused had good reason to

20     consider the international media unreliable.  At the time subordinates

21     informed the accused that media reports were not objective; for example,

22     at P3877, page 2, or that media reports were fabricated.  And we have now

23     on the screen P3951, page 3, which talks about.

24             The Main Staff also believed that the media reports were

25     unreliable.  At page 45 of P338, the 1992 VRS combat-readiness report, we

Page 44709

 1     see "the orchestrated planting of lies about alleged massacres ..." and

 2     then we see "and other media fabrications served to project a distorted

 3     picture."

 4             BBC journalist Martin Bell substantiates the legitimacy of this

 5     belief held by the VRS when he testified at transcript page 7865 and 6

 6     that international journalists employed the mind-set of the Muslims being

 7     the good guys and the Serbs the bad guys.  At transcript page 7868, Bell

 8     noted that:

 9             "It was not so much a case of consciously taking sides as of not

10     going anywhere outside the government-held parts of Sarajevo and seeing

11     the war from that perspective."

12             If we could have the next slide.

13             This is significant because it is not enough for the Prosecution

14     to simply prove that an accused received notice of crimes.  I remind

15     Your Honours of the Milutinovic case, IT -- pardon me, Volume 3 of that

16     judgement, paragraphs 99 through 100.  As in this case, in that case,

17     President Milutinovic received reports from internationals and

18     subordinates and the media, and the Chamber found that he was put on

19     notice about crimes, that was at paragraph 270 of that judgement.

20     However, this was deemed still insufficient at paragraph 276 of the

21     judgement to satisfy the mental element for two reasons.

22             First, the Chamber considered whether Milutinovic believed the

23     information to be reliable and concluded that he did not.  The Chamber

24     stated that the information from the Serbian sources either made no

25     mention of crimes or, when it did, the allegations were reported as

Page 44710

 1     propaganda by the international community.

 2             Second, Milutinovic believed that the relevant authorities were

 3     responding to the allegations.   That's at paragraph 141 of Volume 3 of

 4     the Milutinovic Judgement.  In the present case, although there were

 5     problems with the justice system, the accused reasonably expected the

 6     proper authorities would respond to offences.  We saw that he delegated

 7     the responsibilities for initiating arrests and investigations to his

 8     subordinates, P3066; P244, paragraph 32; and the testimony of

 9     General Milovanovic at page 16953 through 4 of the transcript.

10             And commanders were expected to be aware of their

11     responsibilities in disciplining their troops.  There was a procedure for

12     serious criminal offences, P244, paragraph 33.

13             Next slide.

14             Furthermore, the accused himself repeatedly prohibited the

15     commission of crimes, we have examples at P474, page 5, that's

16     Directive number 1; D187; D1949; P1094; and P3673, page 6.  And the

17     Chamber has seen examples of subordinates reporting crimes up the chain

18     of command and stating that they had or were responding to them.  For

19     instance, I refer the Chamber to P2843, page 2, that says:

20             "An investigation is under way.  A special report to follow."

21             And P3818, which we now have before us that says:

22             "Reprisals by soldiers on leave from the front ... but forceful

23     action by the military police of the 1st KrK put an end to such

24     behaviour."

25             I note here that this report also makes clear that these crimes

Page 44711

 1     were neither ordered nor were they VRS policy.  Thus, again we see

 2     reasonable doubt.

 3             Knowledge of crimes in itself is insufficient also because in

 4     many instances those crimes were committed by people over whom the

 5     accused had no authority.  The Prosecution submits that Mladic "knew of

 6     crimes committed by Serb forces."

 7             And we saw last week, according to them, Serb forces includes

 8     civilian police, paramilitaries, and even local villagers.  In such

 9     cases, as even Prosecution expert Theunens testified, the most that the

10     VRS could do was to support such crimes to the organs in charge of those

11     units; that was at transcript page 20624 through 5.

12             And, in fact, we did see the accused repeatedly went to the

13     relevant authorities.  Taking paramilitaries as an example, we saw the

14     accused's letters to President Karadzic at P3095 and D1503 as to

15     Sanski Most.

16             Finally, on the subject of knowledge, the evidence cited by the

17     Prosecution should be carefully examined as they do not prove that the

18     accused knew of VRS crimes.  For example, it cannot be concluded from the

19     accused being informed of deaths that he had reason to believe that those

20     deaths were criminal and not unfortunate, but lawful collateral damage or

21     lawful deaths of combatants.

22             The accused having met with someone that he had a legitimate duty

23     to meet with does not prove that that person informed the accused of an

24     any crimes that he had just committed or was about to commit.

25     Destruction of non-Serb civilian areas does not prove that crimes

Page 44712

 1     occurred when they could also have been legitimate military objectives.

 2     Evidence that a subordinate knew about a crime does not prove that the

 3     accused was actually informed.

 4             Reports of crimes that do not say who was responsible and in some

 5     places which clearly identify someone other than the VRS do not prove

 6     knowledge.  For example, I refer the Chamber to P3951, where at page 3 it

 7     reports that the civilian police committed a massacre.

 8             Just as the general was not aware of the actions of his

 9     subordinates taken outside of the VRS chain of command, he was also not

10     responsible for the criminal actions of outside organisations as they

11     were separate from the VRS, for example, Crisis Staffs.

12             If we could have the next slide.

13             Crisis Staffs were not criminal organs.  As Prosecution expert

14     Witness Dorothea Hanson stated, they existed under Yugoslavian law, P379,

15     paragraph 11 through 12; also Witness Milincic confirmed that at

16     transcript page 28378 and we also see it from D732, paragraph 8.  And

17     Crisis Staffs were also used by the Muslims and Croats, P379, page 5,

18     footnote 5.

19             Crisis Staffs were intended to take over the lawful duties of

20     running a municipality when the normal organs were unable to function

21     during war time, D492, paragraph 5, for instance.

22             The Chamber saw evidence of how they carried out regular

23     governmental functions, such as maintaining utilities, obtaining food and

24     supplies for residents, and ensuring running of schools, P413, page 6

25     through 8; D827, page 15, 87 through 88, and 91; P3913, page 6; P2414;

Page 44713

 1     P3172, paragraphs 2 and 7 through 9.

 2             JUDGE MOLOTO:  Mr. Ivetic, can you just look at page 50, line 17,

 3     when you say page 15, 87 through 88, or did you say page 1587 through 88.

 4             MR. IVETIC:  15, and I probably did not pause enough, and then 87

 5     through 88.

 6             JUDGE MOLOTO:  Thank you.

 7             MR. IVETIC:  At paragraphs 447 through 460 of the Defence final

 8     trial brief, we see how Crisis Staffs showed concern for all citizens

 9     regardless of ethnicity.  As part of their functions, Dr. Hanson

10     acknowledged that Crisis Staffs were permitted by Yugoslavian law to

11     undertake defence obligations, P379, paragraph 14.  This included

12     replenishing the war units which Hanson agreed was a pre-existing

13     obligation and "not controversial," that was at transcript page 4206

14     through 4207.  So military and Crisis Staff interaction is not criminal.

15             The Prosecution has failed to establish a link between the

16     Crisis Staffs and the accused.  General Mladic had absolutely no role in

17     their creation; he wasn't even there.  From the beginning, Crisis Staffs

18     were not to include military personnel as members, P408.  At

19     paragraphs 478 to 492 of the Defence brief, we review the evidence

20     demonstrating that the VRS and Crisis Staff had completely separate

21     chains of command.  There we also discuss the existence of armed units

22     created and commanded by Crisis Staffs and for whose conduct, therefore,

23     the accused had no responsibility.  The Prosecution concedes at

24     paragraph 597 of their final brief:

25             "No VRS witness testified that he had followed an order issued

Page 44714

 1     outside of his chain of command and no Crisis Staff member testified that

 2     he had issued an order to a VRS unit."

 3             At paragraphs 493 to 498 of the Defence brief, we also cite

 4     evidence proving that VRS members were not part of Crisis Staff

 5     decision-making, nor were they members, Witnesses Davidovic, Javoric,

 6     Basara, Adzic are just some of the evidence as to that.

 7             When VRS personnel were present at Crisis Staff meetings, their

 8     role was only to report on military matters and not to vote on the

 9     decisions.  We heard from Colonel Basara at transcript page 34388.

10             There were fundamental disagreements between the VRS and

11     Crisis Staffs throughout the conflict, including repeated problems

12     relating to Crisis Staffs' attempted interference with the armed forces.

13     At one point, certain ARK authorities sought the removal of the accused

14     as commander of the Main Staff, D839, page 5.  These clashes are

15     discussed at paragraphs 502 to 508.  These clashes are evidence of

16     reasonable doubt under the evidence and mandate acquittal.

17             If we can go to the next slide.

18             On the issue of disarmament in the municipalities, the evidence

19     shows that contrary to the allegations, there was no criminal plan for

20     Crisis Staffs to disarm non-Serbs so that the VRS could then attack the

21     unarmed non-Serb civilians.  First, in many cases, the VRS had not yet

22     been formed when the take-overs were completed.  Second, the

23     Crisis Staffs, as municipal governments, were not only within their legal

24     authority to disarm civilians but had a duty to maintain order.  The

25     instructions applied to all ethnicities.  I refer the Court to D81,

Page 44715

 1     Conclusions of the ARK Crisis Staff, 18 May 1992, on your screens as we

 2     speak.

 3             Another separate organisation was the Serbian police force, the

 4     RS MUP.  The RS MUP formed part of what is described as a broader

 5     criminal narrative in the Prosecution case surrounding the establishment

 6     of "parallel civilian and military structures" as a mechanism for ethnic

 7     cleansing rather than legitimate government.  That's repeated at

 8     transcript page 44440 and in the Prosecution Pre-Trial Brief,

 9     paragraph 34.  In reality, the RS MUP functioned as a vital public

10     institution, ensuring order in the face of armed and aggressive Bosnian

11     Muslim forces set on waging war against Bosnian Serbs.

12             The RS MUP was a civilian organisation with an organised command

13     structure answerable to civilian government structures.  We have that

14     discussed in our final brief at paragraphs 533 through 547.  Any criminal

15     act perpetrated by RS MUP officers was the responsibility of the minister

16     of interior, who commanded the RS MUP units, and in that case that was

17     Mr. Mico Stanisic.

18             But the purported notebooks used by the Prosecution document

19     Mladic's efforts to further law enforcement and compliance with the law.

20     For example, in one of its citations the Prosecution uses to support

21     Mladic's co-operation with Mico Stanisic at paragraph 511 of their brief,

22     the following statements are found, and we're talking about P358:

23             "To uncover the crimes and murders that occurred."

24             And then also:

25             "Who allows armed gangs from Serbia to come to the RS?"

Page 44716

 1             And that's at page 362.  Another quote is:

 2             "The Law on Military Courts needs to be adopted."

 3             Page 363.  And:

 4             "Investigate all abuses and punish them in the most efficient

 5     way."

 6             Page 365.

 7             Without the shroud of a joint criminal enterprise, these meetings

 8     are just the normal discussions between organs of a government system

 9     engaged in a conflict.  The evidence lacks the ability to link the

10     accused to the alleged crimes and is not the only reasonable

11     interpretation.  And thus, pursuant to paragraph 93 of the Gotovina

12     appeals judgement, acquittal is appropriate.

13             The Prosecution argues that the accused exercised de jure and

14     de facto control over RS MUP, who were at times resubordinated to the

15     VRS, this is at paragraph 530 of their final brief.  Resubordination only

16     occurred on an ad hoc basis; and even when resubordinated, the RS MUP

17     remained within the rigid RS MUP chain of command, as attested to by the

18     Prosecution's own insider witness, Momir Nikolic, who testified at

19     transcript page 12093:

20             "What I know for a fact is that they always had command and

21     control over their own units when they would be carrying out joint tasks

22     with the army."

23             Colonel Kevac also provided that when joint operations were held:

24             "They (VRS and RS MUP) operated as two distinct units, each

25     carrying out their own assignments whilst helping the other to carry out

Page 44717

 1     their assignment.  There is no suggestion that one unit had command

 2     authority over the other."

 3             That was at transcript page 30544 through 30545.

 4             The Prosecution's own evidence indicated that resubordinated MUP

 5     "shall be under the direct command of certain ministry officials,"

 6     P3855.

 7             We heard evidence of co-ordinated action, or in B/C/S "sa

 8     dejstva," between RS MUP and VRS which is not resubordination.  While the

 9     Prosecution would like you to believe that the RS MUP assisted in

10     implementing the common criminal purpose by placing personnel at the

11     VRS's disposal, the Prosecution then decides it doesn't even matter if

12     the RS MUP are formally resubordinated or not; they still carried out

13     criminal acts that fit within the definition of the common criminal

14     purpose.  We see that at paragraph 536 of their brief.  This is

15     reflective of the entire Prosecution argument.  The link between the

16     perpetrators of crimes and the accused, that's immaterial; the accused is

17     guilty by virtue of his position and guilty because is he a Serb.

18             If we can have the next slide.

19             On the first day of closing arguments at transcript page 44387

20     through 44388, the Prosecution played an audio recording of an

21     intercepted conversation, P403, between Gagovic, Unkovic, and Mladic,

22     where Mladic is asked whether some of Arkan's Men were under VRS command.

23     And Mladic replied:

24             "All of them, all under arms are under my command, if they want

25     to stay alive."

Page 44718

 1             P403, page 3, and we have that under the screen.

 2             Now, the Prosecution wants to you believe that this excerpt means

 3     that Arkan's paramilitary group were under Mladic's command, but the

 4     context of this excerpt does not support that conclusion.  If we read

 5     further, we see that Mladic is recorded as saying:

 6             "So all should be under our command.  No one should do anything

 7     on their own and a five-day truce must be observed."

 8             So the Defence offers a second reasonable interpretation of the

 9     meaning of Mladic's statement.  Mladic sent various orders calling for

10     the disarmament of paramilitaries, demanding that all paramilitary

11     members place themselves under the command of the VRS if they had not

12     committed any crimes.  For those who had committed crimes, they were to

13     be disarmed, arrested, and prosecuted in the VRS military courts, P501;

14     and those unwilling to join the VRS should leave the territory.  So this

15     statement can be interpreted as Mladic meaning that any armed Serb should

16     be a part of the VRS; and if they are not, then they would be pursued and

17     removed from the area.  The Prosecution has chosen one line and not

18     presented this evidence in its entirety.

19             We can move to the next slide.

20             In further support of this interpretation, on 20 October 1995,

21     the accused wrote a letter to Karadzic complaining about Arkan's men and

22     criticised the civilian authorities' tolerance of him, this is D1503.

23     Arkan's Tigers were subordinated to the RS MUP and Arkan was acting

24     against the population and against the VRS.

25             If we can go to the next slide.

Page 44719

 1             The Prosecution claims that the overarching JCE members

 2     "redeployed notorious volunteers and paramilitary groups such as

 3     Seselj's Men, the White Eagles, and Arkan's Tigers to BiH in 1992."

 4             And this is at paragraph 577 of their brief.

 5             Yet, Mladic's intent towards paramilitaries was clear:

 6     Paramilitaries were forbidden from operating in RS territory and criminal

 7     charges would be instigated against them if they chose to do so, again,

 8     P501.  Despite the accused's attempts to incorporate former

 9     paramilitaries who were innocent men into the VRS, many of them refused.

10     The standing orders of the VRS which prescribed that paramilitaries

11     should be disarmed or integrated into the VRS remained unchanged

12     throughout the war, Witness Corokalo, transcript page 28489.  Mladic did

13     not support nor approve of their actions, nor did he exercise command and

14     control over them.

15             Once paramilitary groups were incorporated into the VRS, they

16     were no longer heard of.  For example, Brne's Chetniks were split up with

17     members being assigned to different brigade, so as to prohibit them from

18     regrouping once incorporated.  Colonel Radojcic testified about that at

19     23054 through 5 of the transcript.

20             Their leader, Brne, was expelled from Bosnia.  At paragraph 580

21     of its brief, the Prosecution attempts to imply that paramilitaries were

22     incorporated into the VRS and were allowed to commit crimes on behalf of

23     the VRS, thus making the link of the criminal activities carried out by

24     the paramilitaries to the accused.

25             The Prosecution also uses Mauzer's Panthers, a paramilitary group

Page 44720

 1     that was incorporated into the VRS, to try and prove their theory that

 2     Mladic used paramilitary to commit crimes in furtherance of the common

 3     criminal plan.  The Prosecution claims that Mauzer's Panthers fought on

 4     the front lines, were eventually arrested for looting in July of 1992,

 5     and were never prosecuted and instead incorporated into the IBK.

 6     Mauzer's Panthers was an armed force set up by the Bijeljina municipality

 7     to defend the municipality, P3802, page 5; P1061, page 2.

 8             While it is true that the accused commended Mauzer in 1993, this

 9     was not a reward for his criminal behaviour.  Witness Andan clarified

10     that this commendation was awarded to unit, not to the person, T22410

11     through 22411 and P6579.

12             Whilst it is also true that Mauzer and his unit were incorporated

13     into the IBK, this was done at the local level, not by an order from

14     Mladic.  The Prosecution has not provided any evidence to show that

15     Mladic condoned of any criminal actions.  There were no orders from

16     Mladic to Mauzer instructing him to commit crimes.  A reasonable

17     alternative explanation is that Mauzer's Panthers were incorporated into

18     the VRS in an attempt to control and instill discipline over them.  The

19     allegation that Mladic used them as a tool in furtherance of the common

20     criminal plan has not been established beyond a reasonable doubt.

21             The Prosecution claimed that the paramilitary group called the

22     Yellow Wasps were arrested, not charged with murder, despite a statement

23     admitting to the killings recorded by the military police.  The witness

24     used to support this, Dragomir Andan, explains on cross-examination that

25     11 paramilitary members were charged for criminal activities and the

Page 44721

 1     others were deported because they could not obtain evidence to prove they

 2     had committed the crimes, transcript page 22425.

 3             While Mladic attempted to curb the criminal behaviour of

 4     paramilitary groups by incorporating them into the VRS and subjecting

 5     them to strict rules and regulations, he cannot be held accountable for

 6     those who refused to abide by these rules and acted out on their own.  It

 7     is clear that these paramilitary groups acted for their own purposes and

 8     defied VRS command and control.  Where possible, action was taken to

 9     prosecute them for their criminal acts.

10             A main focus of the Prosecution is the allegation that the

11     accused exerted influence over the military justice system to protect

12     Serbs who had committed crimes, transcript page 44418 through 44419.  We

13     submit that at no time did the accused exert any kind of pressure on the

14     military justice system.  Indeed, the accused was personally supportive

15     of the independent role of the military justice system, Witness RM513;

16     D747, paragraph 8.  The military judicial system was weakened by a number

17     of factors which affected its ability to function.  These included:  A

18     lack of resources, experts, absconded indictees, absent jurors, and staff

19     shortages, P3560.  It is important to remember that these courts were

20     operating in challenging war-time conditions amidst the presence and

21     prevalence of armed groups.

22             The accused held a position of considerable authority in

23     commanding the VRS, and there's no dispute that during that period crimes

24     were committed.  As the Defence has demonstrated convincingly throughout

25     this trial and summarised in our brief, in most cases, responsibility for

Page 44722

 1     those crimes rests with those outside the VRS and in all cases with those

 2     acting outside of the accused's effective control.

 3             If we can have the next slide.

 4             Whilst the Prosecution was surprised that the Defence referred to

 5     the accused's 16th Assembly speech, transcript page 44371 through 2,

 6     believing it was evidence of the common purpose; the Defence argues

 7     otherwise.  His speech, first as VRS Main Staff commander, was a call to

 8     act clearly and decisively, to be aware of the consequences of going to

 9     war and the importance of acting strategically.

10             One of his first significant statements was at P431, page 35:

11             "Therefore, we cannot cleanse nor can we have a sieve to sift so

12     that only Serbs would stay or that the Serbs would fall through and the

13     rest leave.  Well, that is not -- that is -- will not, I do not know how

14     Mr. Krajisnik and Mr. Karadzic would explain this to the world.  People,

15     that would be genocide.  We have to call upon any man who has bowed his

16     forehead to the ground to embrace these areas and the territory of the

17     state we plan to make.  He too has his place with us and next to us."

18             Critically, this statement was made following Karadzic's

19     presentation of the six strategic objectives, effectively challenging the

20     Assembly not to interpret them as calls for unlawful violence against

21     Bosnian Muslims or Bosnian Croats.  Mladic expressed a wish to galvanise

22     all people born in the Republika Srpska and warned that any war should be

23     waged only in self-defence.  We see that in P431, page 33 through 35.  By

24     the way, this interpretation is supported by Prosecution military expert

25     Ewan Brown at 19502 to 19503.


Page 44723

 1             JUDGE ORIE:  Mr. Ivetic.  I'm looking at the clock.  We're close

 2     to the point where we take a break.

 3             MR. IVETIC:  I thought we were five minutes out.

 4             JUDGE ORIE:  Yes, it's quarter past, but in order to make the

 5     last session 45 minutes --

 6             MR. IVETIC:  That's fine.

 7             JUDGE ORIE:  And the present one 55 minutes, that's -- apart from

 8     that, before we take that break, on page 53, first line, you refer to

 9     paragraph 34 of the Prosecution's final brief in the context of the

10     position of the RS MUP in the parallel civilian and military structures,

11     very much focussing on the RS MUP.  Paragraph 34 seems to deal, however,

12     with the subordination of paramilitaries in the VRS.  So I wonder whether

13     this may be a mistake or perhaps I missed something relevant.

14             Could you please check that.

15             MR. IVETIC:  Of course, Your Honour.

16             JUDGE ORIE:  Then we will take a break and we resume at 1.30 p.m.

17                           --- Recess taken at 1.10 p.m.

18                           --- On resuming at 1.35 p.m.

19             JUDGE ORIE:  Before we continue, Mr. Ivetic, the Chamber would

20     like to deliver a short decision.  It is a decision on two Defence

21     motions to admit a total of four statements pursuant to Rule 85(A) of the

22     Rules.  These motions were filed on the 5th and the 7th of December,

23     2016.  The Prosecution responded to the motions on the 8th and the 9th of

24     December, and the Defence filed a further response on the 9th of

25     December which was, I think, formally distributed only this morning.

Page 44724

 1             The Defence submits that the four statement are crucial to a fair

 2     determination of the sentence, should the Chamber find the accused

 3     guilty.  According to the Defence, the statements confirm the accused's

 4     good character.

 5             The Prosecution opposes the motions, arguing that the Defence

 6     makes no effort to show good cause for filing the motions more than three

 7     months after the deadline for such motions.  It submits that the Defence

 8     fails to demonstrate that the interests of justice necessitate admitting

 9     the statements.  With regard to three of the statements, the Prosecution

10     submits that they focus on matters in controversy in this case, thereby

11     falling outside the ambit of Rule 85(A)(vi) of the Rules.  Should the

12     Chamber admit the statements, the Prosecution tenders one document to

13     provide further context.

14             The Chamber recalls that it had set 25th of August, 2016, as the

15     deadline for motions pursuant to Rule 85(A)(vi) of the Rules.  The

16     Defence requested an extension of this deadline, which was denied by the

17     Chamber on the 2nd of September, 2016.  A subsequent motion for

18     certification to appeal the 2nd of September, 2016 a decision was denied

19     by the Chamber on the 11th November 2016.  The Defence has failed to

20     demonstrate good cause for filing the motions at this stage, let alone

21     acknowledge the just-mentioned procedural background.  Nonetheless, the

22     Chamber will consider whether it is consistent with the interests of

23     justice to exceptionally deviate from the procedural requirements of

24     admitting sentence-related information pursuant to Rule 85(A)(vi) of the

25     Rules at this stage.

Page 44725

 1             The Chamber considers that the Defence had announced in

 2     August 2016 that it would like to tender certain sentence-related

 3     statements.  The three statements tendered in the 5th of December motion

 4     contain information of direct interactions with the accused.  The Chamber

 5     also considered the relationship between those providing the statement

 6     and the accused as well as the fact that the statements are very limited

 7     in scope.  The Chamber further considers that the statements were

 8     tendered at such time early during the closing arguments, making it

 9     possible for both parties to still prepare and address them and make

10     submissions on how they should be weighed.

11             The Chamber lastly considers it of importance to give the Defence

12     one final opportunity to have certain limited evidence introduced in this

13     case.  Under these circumstances, the Chamber find it is consistent with

14     the interests of justice to exceptionally admit the three statements

15     tendered in the 5th of December motion into evidence at this stage.

16             The Chamber emphasises that this admission is limited to

17     sentencing purposes.  Any other information contained in the statements

18     will be disregarded by the Chamber.

19             The Chamber considers that the statement contained in the 7th of

20     December motion reveals that a person giving the statement never even met

21     with the accused.  Further, the statement mainly deals with matters which

22     the Chamber is unable to understand as being focussed on sentencing.

23     Under these circumstances, the Chamber consider this statement to be of

24     no assistance to the Chamber for sentencing purposes.

25             In relation to the document tendered by the Prosecution, the


Page 44726

 1     Chamber observes that this document seeks to place in context certain

 2     information contained in the statements regarding whether Muslims were

 3     expelled.  However, as the Chamber will merely admit the statements for

 4     sentencing purposes, there's no need to supplement the statements with

 5     further information in relation to certain crimes.

 6             Accordingly, the Chamber admits the three statements tendered in

 7     the 5th of December motion; denies admission of the document tendered by

 8     the Prosecution; and denies admission of the statement tendered in the

 9     7th of December motion.

10             Then, Mr. Lukic, the statements were submitted in a

11     Confidential Annex.  Are you tendering them under seal; and if so, what

12     would be the basis for tendering them under seal?

13                           [Defence counsel confer]

14             MR. LUKIC:  Can we go to a private session, please?

15             JUDGE ORIE:  Yes, we'll briefly move to private session.

16                           [Private session]

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 44727











11  Page 44727 redacted.  Private session.















Page 44728

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4                           [Open session]

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

 6             JUDGE ORIE:  Thank you, Mr. Registrar.

 7             Would you please reserve three D numbers for statements still to

 8     be uploaded by the Defence in relation to sentencing.

 9             THE REGISTRAR:  Yes, Your Honour, those will be Exhibit D2182

10     through D2184.

11             JUDGE ORIE:  Yes, and once they are uploaded and once we decided

12     on them being under seal or not, we'll then further instruct you to

13     attach statements to these provisionally reserved numbers.

14                           [Trial Chamber confers]

15             JUDGE ORIE:  Yes, provisionally, they remain under seal until we

16     have decided otherwise.

17             Then, Mr. Ivetic, if you're ready to proceed, please do so.

18             MR. IVETIC:  Thank you, Your Honours.

19             Also significant to the Prosecution's overarching JCE theory, the

20     accused at this Assembly challenged Karadzic and Krajisnik, asking the

21     rhetorical question that:  If the six strategic objectives which they had

22     just promulgated were interpreted genocide, that they would be unable to

23     "explain that to the world," P431, page 35.

24             The timing and context of this warning are critical to a proper

25     understanding of the accused's state of mind.  It is difficult to see

Page 44729

 1     where a commitment to the permanent removal of Bosnian Muslims and

 2     Bosnian Croats could be inferred from a principled and robust, if

 3     understandably caution opposition to a more pernicious interpretation of

 4     the six strategic objectives and to the Bosnian Serb Assembly leadership.

 5             As argued in the Defence brief, if we could have the next slide,

 6     slid 13, that one.

 7             As argued in the Defence brief, paragraphs 795 to 796, the

 8     accused espoused principles of discipline and fairness, which are

 9     inconsistent with the intent of the overarching JCE.  The accused

10     commanded the VRS fully aware that ill discipline and criminality were

11     counter-productive to military efficacy.

12             General Mladic pursued peace and co-operated in agreements that

13     called for a permanent cease-fire for the whole territory, D944, yet the

14     Muslim leaders obstructed his attempts, with their forces performing

15     offensive operations during the cessation of hostilities in Sarajevo.

16     Mladic, in a letter to UNPROFOR Command, listed 803 violations of the

17     Cessation of Hostilities Agreement between 23 December 1994 and

18     2 March 1995, that's D1665.

19             The Prosecution use numerous statements made by others in

20     Mladic's presence to prove Mladic's intent, but limited conclusions may

21     be drawn about Mladic's intent from some selective inflammatory

22     statements of politicians at meetings he attended.  This is particularly

23     true given the evidence that Mladic expressed his disagreement and at

24     times made conciliatory statements at these meetings.

25             The terms "Strategic Objectives" and "Strategic Goals" can have

Page 44730

 1     two different meetings.  The six political Strategic Objectives or

 2     legitimate military operations which the Prosecution has not

 3     acknowledged, thus causing confusion when references to goals or

 4     objectives in military orders could be in reference to legitimate

 5     military targets or the political objectives.  For example, at footnote

 6     2125 of the Prosecution brief, the standing orders of the RS Assembly of

 7     12 May 1992, when the objectives were adopted, refers to them as

 8     "Strategic Goals."  Citation footnote 2352 of the Prosecution brief, a

 9     VRS order signed by the accused, refers to "achieving the Strategic Goals

10     in 1994," P4268, page 6.  Yet at citation military expert Theunens and

11     the VRS combat report refers to them as "objectives," P3029 and P324.

12             The distinction between the two terms is important, as the

13     Prosecution - at the beginning of each municipality analysis and

14     throughout its brief - attempt to link alleged crimes with the political

15     Strategic Objectives.  Kelecevic was asked about drawing this link with

16     Directive 1 at transcript page 37378 and he replied:

17             "No.  One cannot formulate it that way.  The goal was always to

18     keep those who were loyal and who forwarded the policies of

19     Republika Srpska and who were prepared to stay in the area, to keep them

20     in the area, and include them in the armed force rather than separating

21     the peoples in a very determined way."

22             If we can have the next slide.

23             The accused demonstrated his intent to prohibit the abuse of

24     civilians by issuing orders to protect civilians from violence.  These

25     were not toothless or superficial, as the Prosecution wants you to

Page 44731

 1     believe, but examples that show reasonable doubt that the accused was the

 2     member of a JCE furthering a common criminal plan.

 3             P474 is what we see before us and we've talked about it already,

 4     and we see on this slide the protections ordered by General Mladic for

 5     civilians and for POWs.

 6             Next slide.

 7             D187, also issued by Ratko Mladic, and I read item number one:

 8             "The cruel treatments are severely forbidden as well as abuse and

 9     physical destruction of civil population, prisoners of war, and members

10     of the international organisations."

11             Next slide.

12             D1514, we have an order from the accused dated 28 November 1992

13     that says:

14             "According to available data, unknown persons disturbed Muslim

15     population in S. Burati and Vrhbarje.  In this regard:  Order:  I

16     immediately take measures to protect Muslim population in these villages

17     from possible violence from individuals, because they expressed loyalty

18     to the Republika Srpska."

19             Next slide.  And the VRS did take --

20             JUDGE FLUEGGE:  Mr. Ivetic, I think there was a wrong quotation.

21     It was not "I immediately," but "1 immediately."  It was a numerical 1.

22             MR. IVETIC:  It's possible, Your Honours.  My eyes have been

23     deceiving my lately.

24             JUDGE FLUEGGE:  Just for the record.  Thank you.

25             MR. IVETIC:  And the VRS did take efforts to protect non-Serbs

Page 44732

 1     from violence.  At D424, paragraph 3, we have the 1st KK command

 2     protecting the Muslim population from locals:

 3             "The actions of irresponsible individuals have caused uneasiness

 4     among the Muslim population in the villages of Batkovac and

 5     Stari Majdan ... The first KK command intervened by sending a military

 6     police platoon to protect the population from irresponsible individuals."

 7             But, as generally occurs in a war, there was considerable

 8     migration.  There were a number of reasons for migration not attributable

 9     to Mladic or the VRS addressed at paragraphs 778 through 779 of the

10     Defence brief.  For example, there were concerns about safety and fear of

11     the war spreading.

12             If we could skip one slide and go to slide 19.  There were

13     several reasons why more non-Serbs would have left their homes.  There

14     were instructions from the Muslim and Croat authorities themselves.  We

15     have D699, paragraph 31; D884, paragraph 20, for example; and then we

16     have here on the screen, D193.  SDA instructions for moving out of

17     Trebinje that state:

18             "Through our activists stimulate all Muslims, especially

19     prominent and wealthy ones, to leave Trebinje as soon as possible and

20     cross over onto Montenegro.  Do not shy away from using pressure or even

21     force against Muslims who do not observe this order."

22             JUDGE ORIE:  Mr. Ivetic, of course we could look at it, but do

23     you have a time-frame for it just for now to be better to able to follow

24     you?

25             MR. IVETIC:  I would have to get back to you.  I don't have that

Page 44733

 1     in my notes.

 2             JUDGE ORIE:  Thank you.

 3             MR. IVETIC:  There were instances where civilians were

 4     temporarily removed from an area, as discussed at paragraphs 780 to 781

 5     of the Defence brief.  Under international humanitarian law, the

 6     displacement of civilian populations is permissible under two alternative

 7     grounds:

 8             "The security of the population or imperative military reasons so

 9     demand."

10             I refer the Court to paragraph 93 of the Gotovina appeals

11     decision, where that Chamber noted that certain evidence relied on to

12     prove a JCE could have referred to:

13             "A lawful consensus on helping civilians temporarily depart from

14     an area of conflict for reasons, including legitimate military advantage

15     and casualty reduction.  Thus, discussion of pretext for artillery

16     attacks of potential civil departures and of provision of exit corridors

17     could be reasonably interpreted as referring to lawful combat operations

18     and public relations efforts."

19             The Prosecution asks the Chamber to consider all actions taken by

20     the alleged JCE members as taken in pursuit of that common criminal

21     purpose at paragraphs 499 to 528 of their brief.  It fails to address

22     alternative, equally available explanations reasonable under the

23     evidence, especially that Mladic would be working with government

24     officials in the furtherance of his lawful military duties.

25             Numerous meetings between Mladic and civilian leaders would be

Page 44734

 1     completely lawful and expected.  The 11 alleged members, with the

 2     exception of Arkan, were RS or Serbian government officials.  The accused

 3     had a legal duty to meet and discuss the military situation with members

 4     of the RS Presidency.  In attempting to use meetings notes and

 5     transcripts to prove co-operation, the Prosecution has actually

 6     highlighted the absence of any discussion of any criminal plan.

 7             Although there were various detention centres clearly established

 8     and run by different group, the Prosecution submits that they were

 9     actually one system.  The truth fact is that VRS ran only two detention

10     visits:  Manjaca and Batkovic.  Manjaca was first established in late

11     1991 by the JNA and then it was closed down and later re-opened as a POW

12     camp to hold suspects accused of attacks on the military; it is discussed

13     at paragraphs 510, 705 to 726, and 839 to 906 of the Defence brief.  The

14     Prosecution has argued that most prisoners at Manjaca were civilians and

15     that there was no basis for their detention.  However, the evidence

16     demonstrated that there were -- that there was a detailed admission

17     procedure for POWs and suspected combatants and all detainees were

18     registered.  P6993 reveals that investigations had taken place that

19     substantiated the legitimacy of the detentions, for example, for

20     illegally obtained weapons.  Batkovic was established on 2 July 1992 as a

21     POW facility by an IBK order, P3979.  It held POWs and individuals

22     suspected of committing criminal acts or war crimes.  The order at P3906

23     says:

24             "Prisoners for whom there are grounds for suspicion that they

25     have committed criminal acts or crimes against humanity or war crimes

Page 44735

 1     shall be transferred and secured to the Batkovici prison camp."

 2             All POWs were registered by the Red Cross at Batkovic upon

 3     arrival.  Batkovic is discussed at paragraphs 705 through 726 and 1628

 4     through 1647 of the Defence brief.  From the beginning, the accused

 5     repeatedly ordered subordinates to comply with international humanitarian

 6     law.  All units of the VRS were ordered to treat POWs in accord with the

 7     Geneva Conventions.  We already saw Directive 1 on that.

 8             P377 was a June 1992 Main Staff order including to the warden at

 9     Manjaca regarding proper treatment of POWs.  The order establishing

10     Batkovic, P3979 and P4448 which was incorrectly written as D448 in

11     footnote 1500 of our brief, states that:

12             "Organisation of work and care for prisoners in POW camp shall be

13     carried out in accordance with the Geneva Conventions."

14             The Prosecution describes dire conditions at Manjaca but hardship

15     was felt throughout the region at that time.  At P217, page 2, we see a

16     13 June 1992 1st Krajina Corps report confirming the scarcity.

17             "The overall situation in the entire AOR is constantly

18     deteriorating, especially in regard to the provision of supplies, to the

19     region as a whole, and the struggle for food."

20             At D847, paragraph 19, Bosko Amidzic corroborated the grim

21     situation.

22             The VRS did all it could in the circumstances.  At paragraphs 714

23     to 716 of the Defence brief, we discuss that food given to detainees at

24     Manjaca and Batkovic was the same as that given to guards and VRS

25     soldiers.  See, for example, transcript page 29470 and 471, Amidzic.

Page 44736

 1             A detainee described at P3134, pages 43 to 44:   "We were better

 2     fed in Manjaca than the Chetniks that were securing us.  We had three

 3     meals.  We had a quarter of bread for every meal, and they asked food

 4     from us."

 5             In response to the shortages, VRS solicited the aid of outside

 6     charities, such as Merhamet and ICRC to improve conditions.  RM051

 7     testified about that and we see it in P2880.  They would inspect the

 8     facilities and provide what was needed, such as equipment, cleaning

 9     material, and hygiene products.  Witnesses RM051 and Amidzic testified as

10     to that.

11             During the initial stages of the centre, Merhamet visited Manjaca

12     at least once or twice a week.  Later, the ICRC typically visited the

13     camp once a week; RM051 told us that.

14             We heard descriptions of abuse and poor conditions at the

15     facilities, but the relevant question is:  How much did the accused know?

16     At paragraph 24 and 31 of its Banja Luka summary, the Prosecution states

17     that Mladic was aware of crimes and poor conditions in Manjaca in 1992

18     but the footnote contains only two documents.

19             If we can have the next slide.

20             One is P230, which is a report from Colonel Vukelic on the ICRC's

21     visit.  The colonel refers to ICRC observations about quantities of food

22     and weight loss and says:

23             "They had no valid points to corroborate their observations."

24             Later on, the same document says:

25             "Their dissatisfaction is not the result of conditions in the

Page 44737

 1     camp, but the former representative hinted that they were not acting in

 2     good faith."

 3             Based on this letter, Mladic reasonably would not have believed

 4     there was any abuse.  Prosecution Expert Brown based his view that the

 5     Main Staff were aware of "what was happening inside Manjaca," on this

 6     letter at transcript page 19538.  But as Brown conceded at transcript

 7     page 19544, Colonel Vukelic was actually providing reasons why the ICRC's

 8     criticisms were not justified, rather than reporting actually on the poor

 9     conditions.

10             At P3805, we saw another report to Mladic, and again it report

11     ulterior motives saying:

12             "We declare with full responsibility that the purpose of his

13     visit was not inspecting of the state of human rights but on the

14     contrary, intelligence reconnaissance."

15             This type of reporting up the chain of command was prevalent with

16     subordinates reporting that internationals had ulterior motives and that

17     media reports were inaccurate, for example, P2899 and P3877.

18     Subordinates also reported that aid organisations were satisfied with

19     conditions, for instance, P6993.

20             The second document cited by the Prosecution to prove the

21     accused's knowledge is P2880, the 7 August 1992 letter from Karadzic

22     about the ICRC's recommendations.

23             Next slide.

24             If we follow what happened next, we see that five days later, at

25     P2881, the accused wrote a letter to the warden marked "urgent" and

Page 44738

 1     listed several actions to be taken to improve conditions.

 2             And now I quote from the document that's before us:

 3             "The prisoners are to be secured, adequate accommodation, meals

 4     in the amount of 2800 calories per person per day, uninterrupted water

 5     supply.

 6             "All the prisoners who are wounded, sick or handicapped are to be

 7     transferred to a special facility ...

 8             "All manner of abuse, physical assaults, and beatings of the

 9     prisoners are to terminate immediately.

10             "Take into consideration a possibility of releasing civilian

11     prisoners."

12             On Monday at transcript page 44404, the Prosecution described

13     mistreatment at Batkovic from a witness who did not testify orally.

14     However, there was no evidence that the accused was aware of the

15     so-called special unit or any other alleged abuse.  The Chamber heard

16     from Colonel Todorovic, who confirmed that he was responsible for

17     investigating allegations of crime or abuse at Batkovic.  This was

18     transcript page 19837 through 8.  Todorovic testified that he at no point

19     received information, officially or unofficially, of any human rights

20     violations, and therefore he did not take steps to inform the Main Staff

21     of any abuse.  Transcript page 19838 to 19839.

22             Before we go any further, we would like to stress that Mr. Tieger

23     has acknowledged at transcript page 44376 that the Prosecution is no

24     longer proceeding with its case in relation to Kalinovik, and we

25     therefore seek an acquittal on those charges relating to Kalinovik.

Page 44739

 1             JUDGE ORIE:  Mr. Ivetic, I'm looking at the clock.  I'm close to

 2     the moment where we will adjourn for the day.

 3             MR. IVETIC:  I know, Your Honours.  We lost 15 minutes, but I

 4     agree we're at the time.

 5             JUDGE ORIE:  Yes.  Before we adjourn, could you give us an

 6     indication - as I asked the Prosecution several times as well - whether

 7     you are on track in terms of timing.

 8             MR. IVETIC:  To be quite honest, we're running a little bit

 9     behind of our tracked timing.  I had hoped to start and speak as to

10     Sarajevo for about 20 minutes today, and I'm now just at that point of

11     starting to speak as to Sarajevo.  So we are about 20 minutes or so

12     behind where I would like to have been.

13             JUDGE ORIE:  Yes, well if it stays within these kind of time

14     limits, we might find a solution tomorrow, that is, to have perhaps a 15-

15     or 20-minute extended session.  But for the time being, we'll adjourn for

16     the day and we'll resume tomorrow, Tuesday, the 13th of December, 9.30 in

17     the morning, in this same courtroom, I.

18                           --- Whereupon the hearing adjourned at 2.16 p.m.,

19                           to be reconvened on Tuesday, the 13th day of

20                           December, 2016, at 9.30 a.m.