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
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
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
25 The Chamber recalls that the photograph was shown to a witness
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
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
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
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
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
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
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
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
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
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
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
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
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.
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:
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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.
1 JUDGE FLUEGGE: Mr. Ivetic.
2 MR. IVETIC: Yes.
3 JUDGE FLUEGGE: Could you provide with us the date of this
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
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
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
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
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.
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
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
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
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
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
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
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
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
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,
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
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
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
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,
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
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
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
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
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
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.
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
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
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
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
1 see "the orchestrated planting of lies about alleged massacres ..." and
2 then we see "and other media fabrications served to project a distorted
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
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
25 I note here that this report also makes clear that these crimes
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
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;
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
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,
1 Conclusions of the ARK Crisis Staff, 18 May 1992, on your screens as we
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?"
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
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
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,"
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."
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.
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
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
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
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.
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.
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.
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
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]
11 Page 44727 redacted. Private session.
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
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
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
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
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
25 MR. IVETIC: I would have to get back to you. I don't have that
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
8 "The security of the population or imperative military reasons so
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
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
24 "Prisoners for whom there are grounds for suspicion that they
25 have committed criminal acts or crimes against humanity or war crimes
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
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.
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
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
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
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
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
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.
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.