Tribunal Criminal Tribunal for the Former Yugoslavia

Page 44740

 1                           Tuesday, 13 December 2016

 2                           [Defence Closing Arguments]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.34 a.m.

 6             JUDGE ORIE:  Good morning to everyone in and around this

 7     courtroom.

 8             Mr. Registrar, would you please call the case.

 9             THE REGISTRAR:  Thank you and good morning, Your Honours.  This

10     is case IT-09-92-T, the Prosecutor versus Ratko Mladic.

11             JUDGE ORIE:  Thank you, Mr. Registrar.

12             Mr. Ivetic, if you're ready, please proceed.

13             MR. IVETIC:  Thank you, Your Honour.  I'd like to begin first

14     with some corrections to the record from yesterday and to address the one

15     request that you had asked us to look into.

16             At transcript page 44723, lines 7 through 14, we were asked to

17     clarify a reference to paragraph 34 of the Prosecution final brief.  The

18     reference was actually to the Prosecution's pre-trial brief,

19     paragraph 34, where the statement:  "Creating parallel Serb civilian and

20     military structures" was quoted from.

21             At transcript page 44730, line 11, the reference to P324 was

22     actually meant to be a reference to P3029, page 324.

23             At transcript page 44732, lines 22 to 24, in answer to

24     Your Honour's question, the date of the Exhibit D193 is January 20th,

25     1993.

Page 44741

 1             And at T44735, line 22, the reference to P3906 should refer to

 2     P3806.

 3             And those are the corrections and responses that I had for

 4     Your Honours.

 5             And now I'd like to start by talking about Sarajevo.

 6             The Prosecution the other day started talking about G1 as a

 7     massive bombardment in Sarajevo and the many casualties that resulted

 8     therefrom, choosing to go highlight the only victim witness they brought,

 9     Ms. Fadila Tarcin.  I find it insulting to Ms. Tarcin and to the Defence

10     that Mr. Weber callously used a 16-year-old girl to highlight the alleged

11     lack of legitimate military targets in Sirokaca but failed to mention

12     that the mortar shell which destroyed her life and limits her mobility

13     came from Alija Izetbegovic's Sarajevo forces, not the Bosnian Serb side,

14     as she testified at transcript page 3447 to 3448 when we said the shell

15     came from the city, not from up the hill where the Serbs were.  The

16     Prosecution acts sometimes as if they are covering up the crimes of

17     Alija Izetbegovic's forces rather than as a Prosecutor.

18             Similarly, for unscheduled Vase Miskina, they hide from sight any

19     mention of Ambassador Cutileiro's testimony that the Portuguese UN

20     artillery officer performing the investigation likewise said that

21     Izetbegovic's forces, the ABiH, were to blame there as well.  That was at

22     transcript page -- I think I have a wrong reference.  It was in the

23     statement of Mr. Cutileiro and when he testified in court in these

24     proceedings.

25             Like all wars, the conflict in Sarajevo started long before the

Page 44742

 1     first shot was ever fired.  As you well know, it was born of the

 2     nationalist fervor rampant throughout Bosnia at that time and the

 3     increasingly more pervasive efforts of Izetbegovic to secure political

 4     dominance for himself and the SDA at the expense of the other constituent

 5     peoples of Bosnia.  In the words of Witness Kecmanovic about the vote for

 6     independence:

 7             "It wasn't just about the event but the importance was that

 8     ethnic equality was violated."

 9             Transcript page 23813.

10             When it became clear that Izetbegovic was not going to be

11     available to achieve his goals through democratic, political means, he

12     began to enact a plan to secure these objectives by force, saying:

13             "I am prepared to sacrifice peace for Bosnia-Herzegovina."

14             We find that at D735, paragraph 45.

15             In pursuit of this, the SDA illegally imported and distributed

16     weapons throughout Sarajevo, trained paramilitary groups, stacked

17     government departments, including the MUP, and set up secret groups, like

18     the Seve.  This is discussed at paragraphs 1683 to 1710 of our final

19     brief.  The SDA promoted discord within the community; and, as the number

20     of unpunished attacks against Bosnian Serbs rose, so too did the real

21     fear that the Bosnian Serbs as a peoples would be subjugated by the SDA.

22             As the prospect of war became an imminent reality, the SDA

23     scrambled to establish an organised defence in Sarajevo.  Formed

24     officially on 22 May 1992 which is after the establishment of the ABiH -

25     we see that in D270 read together with P2008 - it took in reality some

Page 44743

 1     time before the SRK, if ever, constituted a unified corps.  The ABiH were

 2     stronger in number, were better armed and possessed superior weaponry,

 3     D468; transcript page 25846; D482; D658.

 4             The ABiH took control of Sarajevo.  Using mobile mortars mounted

 5     on the back of vehicles, they showed themselves as a highly mobile force.

 6     Witness Vujasin talked about that at D641.  The ABiH maintained their

 7     weaponry and ammunition stocks by illegally smuggling them in through

 8     humanitarian aid convoys and later the tunnel under the airport.  The

 9     ABiH used the presence of civilians in the city to protect themselves,

10     hiding their command posts in local shops and post offices, establishing

11     weapons facilities in residential buildings and basements, training new

12     recruits in primary schools alongside children sitting their daily

13     lessons, positioning their snipers in high-rise towers and so on.  You

14     could see some of that at paragraph 1765 of the Defence brief.

15             Witness Draskovic, a member of the 1st Sarajevo Mechanised

16     Brigade in Novo Sarajevo testified at page 38044 as follows:

17             "... there was sniping around the clock ... one could not be

18     certain at any point during the 24 hours, for example, even our guards

19     were not safe in their posts, although they had fortifications, but there

20     was always some opportunity for the sharpshooters having night-vision,

21     hence we were exposed to their fire round-the-clock and we were unable to

22     move.  That very fact, that one is just waiting for your wrong step at

23     any point in time that can end your life, makes you feel very

24     uncomfortable and that is how this terror occurred on the side of our

25     soldiers and civilians."

Page 44744

 1             It is an absurd proposition to suggest that the SRK and the

 2     people of Republika Srpska should have given over their ethnic equality

 3     without complaint, should have submitted to the unlawful attacks of the

 4     ABiH at the commencement of the conflict, and thereafter should have

 5     allowed illegal smuggling to continue unabated, should have merely

 6     submitted to the incessant sniping and shelling that ensued from the ABiH

 7     side, should have silently counted up their dead and injured.  That is,

 8     however, what the international community demanded of them.

 9             Indeed, the SRK was repeatedly forbidden by General Mladic to

10     fire unless absolutely necessary to do so.  This applied particularly

11     during cease-fires, which it should be noted, General Mladic consistently

12     sought in order to give the politicians the opportunity to find a

13     peaceful solution to the dispute.  We see that at D66, P5031, D150,

14     D1575, D1707, among others.

15             Izetbegovic, however, had little regard for cease-fires or peace

16     agreements, as seen in D1426.  He wanted war and the political gain that

17     war would bring him.  He wanted it so adamantly he is reported to have

18     said he would "... only accept intervention or death for his people as

19     final solution."

20             That's from D1426, page 1.

21             Izetbegovic and the BiH leadership did all they could, therefore,

22     to perpetuate the crisis and to portray themselves as the victims of

23     indiscriminate aggressions.

24             "The shelling has reduced considerably in Sarajevo" wrote the

25     UNPROFOR Sarajevo on page 2 of D1426, "but the Presidency continues to

Page 44745

 1     perpetuate the myth that the city is being bombarded.  This is not the

 2     case, however; it is the version of a man who expects international

 3     military help."

 4             It was the worst-kept secret in Sarajevo, that the need of the

 5     BiH to perpetuate this narrative was of such importance to them that they

 6     shelled and sniped at their own people.  Indeed, General Rose admitted

 7     that he knew Ganic organised his secret police to snipe at trams and to

 8     do so at an angle that matched the Serb line so that the SRK would be

 9     blamed, T8736 to 8737.  A point confirmed by the confession of Hereneda,

10     a prominent member of Seve who sniped at civilians and UN personnel in

11     just such a manner at Witness Garaplija testified about, transcript page

12     33909.

13             Skrba, a company commander in the 1st Smbr, recalled that

14     massacres that were committed by the ABiH 10th Mountain Brigade against

15     civilians in their zone of responsibility, D524, paragraph 7.

16     Witness Dragicevic recalled the frequent ABiH fire upon schools

17     kindergartens, hospitals, and apartment blocks, at D554, paragraph 29.

18             And Grey, an UNMO, testified that the ABiH self-targeting was

19     particularly prominent during visits of international personnel, when

20     media were present, or the BiH wanted to get Sarajevo "back on the front

21     page."  D116, paragraph 3; and see paragraphs 1861 to 1867 of the Defence

22     final brief.

23             RM413, for example, noted that:

24             "... on several occasions that in spots which were particularly

25     accessible to the media, sniping occurred that could only have come from

Page 44746

 1     within the city itself."

 2             P640, page 4.

 3             By hiding in amongst civilian features, using civilians as

 4     shields in deliberate contravention of Article 51 of the AP I of the

 5     Geneva Conventions and firing upon their own people, Izetbegovic and the

 6     ABiH brought the war to the very door-step of those who least desired it.

 7             Not coincidentally, the ABiH was particularly concerned to hide

 8     their activities and even expelled OPS Officer Captain Hansen, assistant

 9     to UNMO Per Oien, in June 1995 when he told the BiH liaison officer to

10     stop firing on their own people after witnessing an ABiH attack on the

11     PTT [sic] building.  We have that from Witness Oien at transcript page

12     43192 through 43195.  This expulsion was misrepresented by the

13     Prosecution in their closing arguments last week.

14             At transcript page 44516, Mr. Weber focuses on how the Defence is

15     trying to use "supposed events" without any inspiring basis as to this

16     "alleged" firing of the ABiH on their own PTT building involving

17     UNMO Hansen.

18             Your Honours, I feel compelled to point out that what Mr. Weber

19     sees as "defence" and "supposed events" without basis comes from a

20     Prosecution witness statement taken by Mr. Weber's office from

21     Mr. Hansen, where Prosecution counsel - and not the Defence - collected

22     the very information relied upon by the Defence.  Mr. Weber would have us

23     ignore the very telling part of the same which was presented in court in

24     this case which says:

25             "In that period, there were a lot of homemade airplane bombs that

Page 44747

 1     landed in that area; it has to be about ten in the two weeks before the

 2     hit on the TV building.  On observation post could see that some of the

 3     bombs were fired from Ilidza on the BSA side.  I was informed by an UNMO

 4     who had seen the shelling on the TV building that this particular bomb

 5     that had impacted on the TV building was fired from the BiH side.

 6     Another UNMO who heard the bomb told me that the bomb only flew for a

 7     short period, so that fitted with the findings of the first UNMO that the

 8     bomb was fired from BiH-hold territory.  I sent my report about this

 9     event to my superiors by secure means."

10             JUDGE ORIE:  Mr. Ivetic, we usually receive references to exhibit

11     numbers.  Is there any reason why we have 65 ter numbers here rather than

12     exhibit numbers?

13             MR. IVETIC:  Yes, Your Honour.  This is a witness statement taken

14     for purposes of litigation, and therefore it cannot be introduced into

15     evidence under Rule 92 without the witness appearing --

16             JUDGE ORIE:  If it's not in evidence, then I think we should not

17     be --

18             MR. IVETIC:  Your Honours, this part that I read out was read out

19     in court and presented to a witness, and we have testimony of Mr. Jan

20     Segers and Mr. Per Oien in relation to this.

21             JUDGE ORIE:  Then I would except you to quote from the transcript

22     rather than to more or less invite us to look into documents which are

23     not in evidence.

24             MR. IVETIC:  And, Your Honours, I did quote from the

25     transcript because in that transcript I read from this document, as I --

Page 44748

 1             JUDGE ORIE:  Yes, but if you now give us the transcript

 2     references which make it is easier for us to find the source of what you

 3     are saying in the evidence as admitted.

 4             MR. IVETIC:  Transcript page 43812 through 3, Your Honours.

 5             JUDGE ORIE:  Thank you for that.

 6             And we can remove this from our screens as not being in evidence.

 7             Please proceed.

 8             MR. IVETIC:  Similarly, Jan Segers - another UN witness -

 9     confirmed that he knew of another instance where the same thing happened

10     and the complaining UNMO was kicked out by the ABiH.  So I therefore

11     reject Mr. Weber's comments that this was somehow made up by the Defence

12     and inserted into a Prosecution's witness statement.  That they would

13     stoop to such cheap tactics only shows their desire to win the case at

14     all cost, even at the cost of their own department's integrity.

15             Your Honours, I will shift tack now to discuss the Prosecution's

16     assertions that the engagement of targets in Sarajevo was done in an

17     indiscriminate and disproportionate manner.  Prosecution suggest this was

18     evidenced by the targeting of ostensibly civilian targets, the impact of

19     shells at some distance from the line of confrontation, and the so-called

20     bombardments of the city.  In fact, the SRK was careful not to engage

21     civilians or civilian targets which had been confirmed as such by visual

22     observations or information gathered from informants and persons who had

23     fled Sarajevo.  Transcript page 38460, Witness Tusevljak; D535,

24     paragraph 136; D824; D825; D643, paragraph 41; D540; D468, paragraph 12;

25     and D658, paragraph 14, are some of the evidence talking about that.

Page 44749

 1             The list of known ABiH positions was long and reveals the extent

 2     to which the ABiH abused civilian features.  It included significant ABiH

 3     deployment throughout the neighbourhood of Hrasnica, including the four

 4     command posts of the 104th Brigade at Hrasnicki Stan, D559, Witness

 5     Sehovac, paragraph 21; and the ABiH special forces training centre at the

 6     Alekse Santic school, also Witness Sehovac and the same exhibit.  It also

 7     includes an extensive number of positions in Centar, Stup, and Alipasino

 8     Polje including the PTT building, D2015, page 3.  Mejtas, Pofalici where

 9     the PTT building was located, D1412, Witness Grey, paragraph 9.  The many

10     positions in Dolac-Malta including the Unis sky-scraper, D647, page 2.

11     At least five positions in Kosevo, two in Bjelave, including the

12     students' hostel, D647, page 2.  And countless others, scattered in

13     particular in old town Bascarsija and across Sokolje, Butmir, Dobrinja,

14     Nedzarici, Otoka, Vojnicko Polje, Cengic Vila, Buca Potok,

15     Soukbunar/Kovacici, to name just a few.  It should be noted that this

16     list is not even close to exhaustive and does not include the various

17     military patrols, mobile mortar, and congregations of troops which also

18     occurred throughout Sarajevo.

19             Even the city ambulances were used as taxis by local politicians

20     and for the transport of ammunition rather than for patients.  And mobile

21     mortars regularly fired from the grounds of both hospitals, in a base

22     tactic, described by Witness Jordan at transcript page 1819 as "pointless

23     and inaccurate," threatening not only the civilians located outside of

24     Sarajevo but those within, given the tendency of these mobile mortars to

25     "fall short."  A phenomenon which occurred more frequently than anybody

Page 44750

 1     would like, particularly when the mortar was hastily set up, as Jordan

 2     testified at transcript page 1818 to 1819.

 3             The very presence of mobile mortars in Sarajevo calls into

 4     question the Prosecution's allegation that the SRK fired indiscriminately

 5     and is consistent with the findings of the Gotovina's Appeals Chamber

 6     which found at paragraph 66 of the Judgement that the presence of mobile

 7     mortars:

 8             "... raises reasonable doubt whether even artillery impact sites

 9     particularly distant from fixed artillery targets considered

10     legitimate... demonstrate that unlawful shelling took place."

11             This finding, in relation to Sarajevo is more pronounced given

12     that the international witnesses were unaware of the vast majority of

13     ABiH positions or the positions of mobile mortars at any time, P421,

14     paragraph 72 and 128; the testimony of Witnesses Fraser and Mole at 5876

15     to 5877 and 4346 to 4357 of the transcript.

16             This ignorance stemmed - at least in part - from the imbalance on

17     UN observation posts in the territory of each party, the bias system of

18     recording shelling in and around Sarajevo, and the politically aligned

19     agendas of certain international personnel which will be discussed

20     further in due course.  Transcript page 4304, Witness Mole; P503,

21     Witness Thomas, paragraph 19, 35, 37; P504, paragraph 2.

22             Given the biases, internationals were not in a position to judge

23     the fire of the SRK as indiscriminate, and this undermines their

24     assertions about both the origin and the impact of artillery, mortar, and

25     small-arms fire in Sarajevo.  Indeed, at paragraph 79 of the Gotovina

Page 44751

 1     appeals Judgement, it was effectively held that the observations of

 2     witnesses - with no artillery experience and whose vantage points made it

 3     difficult to determine where the shells were directed at or actually

 4     landed - were not sufficient to base a finding that the shelling was

 5     indiscriminate.

 6             These findings have not, it seems, influenced the Prosecution,

 7     who - it seems - has wholeheartedly adopted the assumptions of many

 8     internationals with such enthusiasm that they have neglected their duty

 9     to evidence the culpability of the SRK for such events, Scheduled

10     incidents G4, F11, F13, and in fact most, if not all, of the F and G

11     incidents.  The Prosecution has been so enthusiastic, they've even

12     alleged SRK responsibility for incidents for which the evidence and the

13     international witnesses suggest the SRK weren't responsible; Vase

14     Miskina, for example, and both scheduled Markale incidents, G8 and G18.

15     In G8, for example, the Prosecution dismiss all evidence contrary to

16     their position as being part of some Defence "conspiracy theory."

17             In doing so, they would have you conveniently ignore not only the

18     findings of Defence expert Subotic and numerous UN investigations which

19     could not determine the origin of fire with any degree of certainty, as

20     discussed in paragraph 1996 to 2062 of our final brief.  But would also

21     have you ignore the words of Segers who said:

22             "We are almost certain that it was not the Serbs."

23             D1466, page 6.

24             And another UN witness, Russell, who believed that the shell had

25     come from a location closer rather than further from the crater, D1219,

Page 44752

 1     paragraph 22.

 2             I'd like to go into private session briefly.

 3             JUDGE ORIE:  We move into private session.

 4                           [Private session]

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21                           [Open session]

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

23             JUDGE ORIE:  Thank you, Mr. Registrar.

24             MR. IVETIC:  It is much easier for the Prosecution to pretend

25     these are conspiracy theories than to admit what the evidence shows, that

Page 44753

 1     SRK culpability for this incident cannot be established beyond a

 2     reasonable doubt.  A similarly selective narrative has been adopted by

 3     the Prosecution for incident G18.  There, the Prosecution relies

 4     essentially on the report of Colonel Powers, whose conclusions depart

 5     from all prior investigations, P797, page 21.  The Prosecution has led no

 6     evidence to justify this departure nor to explain why his findings should

 7     be accepted.  They suggest only that the findings were influenced by a

 8     meeting between Powers and the Force Commander, and the chief UNMO, a

 9     suggestion dismissed by Lieutenant-Colonel Per Oien, who reviewed all

10     reports of the incident and testified there was no chief UNMO, and he did

11     not receive any such report from Powers as is discussed in our final

12     brief at paragraphs 2083 and 2084.

13             Powers, as it turns out, was the American liaison between NATO

14     and General Smith, an UNPROFOR commander - Smith conceded that at

15     transcript page 7451 - who was well-known to have worked at the Ministry

16     of Defence in London and engaged in conversations with NATO and the UN,

17     that's Smith we're talking about, regarding the use of air-strikes

18     against the VRS even prior to his arrival in Bosnia-Herzegovina.

19     Transcript page 7371.  Smith had evidence links to the

20     US State Department, to whom he directly reported, bypassing his UN

21     superiors and is highly suspected of having engaged in covert operations

22     to destabilise the former Yugoslavia, evidenced in part by his refusal to

23     answer questions on the matter, which were posed at transcript page 7367

24     through 8, and is expected to act in Bosnia with a clear mandate to

25     "break the UNPROFOR machine and essentially pave the way for the

Page 44754

 1     international community to make war in BiH," as to declassified cables

 2     from Smith to the State Department talk about, D1462 and D452.

 3             Your Honours, I would now like to address the assertion by the

 4     Prosecution at paragraph 1041 of their final brief that the failure of

 5     the ABiH to separate civilians from military objects rendered SRK attacks

 6     on the ABiH in these positions unlawful.

 7             As I'm sure Your Honours are aware, the wording of Article 51(7)

 8     of AP I of the Geneva Conventions, the prohibition against human shields

 9     is widely understood to cover both the forcible movement of civilians to

10     shield military objectives, as well as more subtle practices, such as

11     deliberately placing a military objective in the middle of, or close to,

12     a civilian area.  This is arguable, particularly so if the civilians from

13     that area are prohibited from leaving the area.  Respectfully, the

14     actions of the ABiH in positions themselves in civilian features falls

15     squarely within this category.  See, for example, paragraph 1838 to 1840

16     of our brief.

17             Article 51(7) states in clear and unambiguous terms that:

18             "Civilians shall not be used to render certain points or areas

19     immune from military operations."

20             Meaning that the SRK was not prohibited from engaging positions

21     in which the ABiH were using human shields, as they did almost

22     universally across Sarajevo.  Holding a contrary legal position,

23     Your Honours, would be tantamount to rewarding the ABiH for their use of

24     human shields and could also encourage the use of human shields in future

25     conflicts.  Statements such as those referenced by the Prosecution at

Page 44755

 1     paragraph 1040 of their final brief should be interpreted in this

 2     context.  In the face of this, the Chamber must recognise that the use of

 3     civilian features for military purposes, and the presence of the ABiH

 4     within them, extinguished the protections afforded these positions and

 5     thus allowed them to be engaged by the SRK, a principle articulated in

 6     the Kordic and Cerkez appeals judgement at paragraphs 455, 510, and 516.

 7             As per the Galic appeals judgement, this was true even of

 8     hospitals - paragraph 346 of that judgement - because of the regular

 9     presence of mobile mortars within their grounds.

10             The lawfulness of attacks on these positions was therefore a

11     question of proportionality, a topic for which the Prosecution has made

12     grand overtures but little substantiated their claims and has failed to

13     lead a single military expert on the topic.  In fact, they have seemed

14     abjectly afraid to dwell on the topic.  I fear this is of their lack of

15     any basic understanding of the principle of proportionality, as implied

16     by their consistent reliance upon international witnesses who assert that

17     the SRK used greater fire-power than the ABiH, and therefore acted

18     disproportionately.  As Your Honours are no doubt aware, the duty to

19     proportionality does not oblige any equality of fire or tit-for-tat-type

20     assaults, nor is it a matter of counting civilian casualties and

21     comparing them to the number of any combatants put out of action.

22     Rather, it is the obligation to protect against excessive collateral

23     damage by using force only when the anticipated military advantage in

24     using that force is proportionate to the collateral damage expected to

25     result from it.  It requires, in practical terms that those who plan or

Page 44756

 1     launch an attack consider the impact of their actions prior to engaging a

 2     target.

 3             The Defence has shown at paragraphs 1762 and 3 of our final brief

 4     that such considerations were required of each and every member of the

 5     SRK.  What the Prosecution has not shown, as they are required to do, is

 6     that targets were then engaged despite the expectation there would be

 7     excessive collateral damage.  On the contrary, Radojcic, for example,

 8     recalled giving up the fight for Dobrinjaska Street in 1993 because they

 9     noticed there were a large number of women and children there, and

10     cancelling the assault on Butmir upon General Mladic's orders because

11     they had confirmed information there were a large number of civilians,

12     and any artillery fire would have caused heavy casualties among them.  We

13     find that at D535, paragraph 35.

14             The same was true of the engagement of mobile mortars.  The

15     Prosecution have tried to convince you that shelling impacted on

16     ostensibly civilian areas cannot be attributed to or justified by the

17     engagement of mobile mortars.  This is in paragraph 1039 of their final

18     brief.

19             But let me make perfectly clear, Your Honours, there were a good

20     many military targets located in civilian areas.  The Defence by no means

21     suggests that these targets were limited to mobile mortars or, in the

22     view and presence of these targets, engaged only mobile mortars in these

23     areas.

24             We've already talked about the Gotovina Appeals Chamber Judgement

25     at paragraph 63 which found that mobile mortars were legitimate military

Page 44757

 1     targets and that the Trial Chamber had erred in finding that no shells

 2     were aimed at mobile military objects moving around town.  This finding

 3     undermines the Prosecution's assertions that the engagement of mobile

 4     mortars by the SRK was, in and of itself, unlawful and that any attacks

 5     on the positions of departed mobile mortars were invalid.  In fact, in

 6     accordance with their right to use force in self-defence, it was

 7     perfectly legitimate that the SRK would return fire in the face of an

 8     assault on their positions.  Indeed, Witness Jordan confirmed such

 9     practice as standard operating procedure at transcript page 1818.  When

10     returning fire, it would be unlikely that those at the position attacked

11     would have definitively known they had been assaulted by a mobile mortar

12     for the simple fact that the effects emanating from mobile mortars are

13     the same as those of stationary mortars.  Transcript page 5532, 5506,

14     5493.  Those at the position would have been aware only that the assault

15     originated from a particular direction.  It cannot be expected that they

16     should have known they were engaged by mobile mortars before responding.

17             In the midst of an attack, the decision to use force in

18     self-defence is one made in necessary haste and often with little

19     information on hand.  This is different to the position of the proponent

20     who would in all likelihood have access to a much wider range of

21     information about their target, if only because they'd have had more time

22     to plan and prepare this assault.

23             As the Prosecution has alleged, it is indeed possible that the

24     mobile mortar may have departed unbeknownst to their victim before they

25     could respond, in a move commonly referred to as "shoot and scoot."

Page 44758

 1     This, however, does not necessarily mean that return fire of the SRK was

 2     unlawful.  Indeed, the evidence shows that those who responded in such

 3     circumstances did so in pursuit of the significant military advantage

 4     that could be obtained by letting their opponents know they were aware of

 5     their positions and to intimidate the ABiH into stopping their attacks.

 6     Witness Draskovic, transcript page 38034.

 7             This undermines the Prosecution's assertions that such attacks

 8     were carried out simply to generate terror.  In the Fuel Tanker Case, in

 9     Germany, from 2010, at pages 63 to 66, it was held that:

10             "Considering the particular pressure at the moment when the

11     decision had to be taken, an infringement is only to be assumed in cases

12     of obvious excess where the commander ignored any considerations of

13     proportionality and refrained from acting honestly, reasonably, and

14     competently."

15             The Prosecution has not evidenced that those who ordered the

16     attacks on mobile mortars in Sarajevo or those who responded to attacks

17     from mobile mortars in self-defence were negligent in this regard.  In

18     fact, they have not even evidenced that a single death or any form of

19     collateral damage resulted from an attack on mobile mortars, whether or

20     not it had departed.  The actions of the SRK in attempting to engage

21     mobile mortars cannot, therefore, be said to be disproportionate.  This

22     is so, even for those mobile mortars positioned on the grounds of the

23     hospitals in Sarajevo.

24             I'd like to briefly go into closed session -- pardon me, private

25     session.

Page 44759

 1             JUDGE ORIE:  We move into private session.

 2                           [Private session]

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14                           [Open session]

15             THE REGISTRAR:  We're back in open session.

16             JUDGE ORIE:  Thank you, Mr. Registrar.

17             MR. IVETIC:  The Prosecution's allegations at paragraph 1042 of

18     their final brief that they did is undermined by their referencing in the

19     seam paragraph of witnesses who denied that mobile mortars were ever at

20     the hospital, a claim rendered absurd by the overwhelming amount of

21     evidence to the contrary.  See paragraph 1766 of the Defence final brief.

22     What's more, the evidence also demonstrates that return fire was targeted

23     particularly at the mobile mortar, not the hospitals themselves, as

24     attested to by Witnesses Mole and Segers, P421, paragraph 125; and D1465,

25     page 11.

Page 44760

 1             In fact, in one incident witnessed by Segers at Kosevo Hospital,

 2     he noted that the SRK counter-fire upon the mobile mortar was very

 3     short - 43815, 43816 of the transcript - and that it resulted in no

 4     material substantive damage.  Importantly, Segers also noted the practice

 5     of the SRK to warn before they returned fire, thus ensuring the

 6     lawfulness of their assaults in accordance with the Galic Appeals Chamber

 7     Judgement at paragraph 346.

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

 9             JUDGE ORIE:  We're at the time for a break, and we'll resume at

10     ten minutes to 11.00.

11                           --- Recess taken at 10.30 a.m.

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

13             JUDGE ORIE:  You may proceed, Mr. Ivetic.

14             MR. IVETIC:  Your Honours, the Prosecution would also have you

15     believe that because a large number of shells were launched at Sarajevo

16     at various times throughout the conflict, that these alleged bombardments

17     must, ipso facto, have breached the principle of proportionality and

18     selectivity.  The fact remains that an attack or series of attacks which

19     are extensive are not necessarily excessive or without military

20     justification.  The explanatory footnotes of the AP I suggests that:

21             "Concrete and direct overall military advantage" refers to a

22     military advantage that is foreseeable by the perpetrator at the relevant

23     time.  This includes advantages which may not necessarily be temporarily

24     or geographically related to the object of the attack.  In other words,

25     the proportionality of an assault should be viewed in relation to the

Page 44761

 1     operation or conflict as a whole and the military objective therein.

 2     This approach has been adopted by a number of countries around the world,

 3     as evidenced in their respective military manuals, including - among

 4     other - as we now see on the screen:  Canada, Australia, Germany, Italy,

 5     The Netherlands, New Zealand, UK, the US and - most importantly - the

 6     SFRY.  The overarching military objective for the SRK was the complete

 7     cessation of hostilities in Sarajevo.  In accordance with this, they

 8     acted pursuant only to a strategy of self-defence.  They did not seek to

 9     take Sarajevo or advance their positions for any reason, other than to

10     improve their ability to defend against the assaults of the ABiH.  The

11     Prosecution ignores this latter point in their final brief, particularly

12     when discussing the Otes, Lukavac 93, and Pancir-2 operations in

13     paragraphs 938 through 956 of the Prosecution final brief, and suggesting

14     that their associated directives somehow evidence a common criminal plan.

15             A proper assessment of proportionality requires an understanding

16     of the objective with which an assault was launched:  For the SRK, this

17     was those two prior-mentioned objectives, the defence of their position

18     and the complete cessation of hostilities.  The "bombardment", for

19     example, alleged in paragraph 779 of the Prosecution's brief, alleged to

20     have taken place on 21 March 1993, is actually evidenced to have been a

21     legitimate act of self-defence against an intense ABiH assault on a key

22     SRK supply route on the Pale-Lukavica road.  RM176 testified about that.

23             As their key supply route, the road was of significant importance

24     to the SRK and their ability to affect the defence of their positions.

25     The neighbourhoods alleged to have been impacted by this bombardment all

Page 44762

 1     contained key military targets.  Witnesses Sehovac, Sladoje, Dzino, among

 2     other evidence, talks about that.  In the face of the difficulties of the

 3     SRK would have faced in defending their positions had the ABiH attack

 4     been successful, the intense but short-lived shelling of these targets

 5     was evidently proportionate.  No collateral is, after all, evidenced to

 6     have occurred -- that is to say, no collateral damage is, after all,

 7     evidenced to have occurred.

 8             Incidents G1 and G2 are evidence of the SRK acting pursuant to

 9     their objective to bring a permanent resolution to the conflict in

10     Sarajevo.  In implementing the G1 campaign:

11             "All military targets that were in the area of Sarajevo were part

12     of the plan for combat."

13             We see that evidence at transcript page 4990.

14             Mladic's orders were understood to apply only to valid military

15     targets, many of which were located in the old town, where according to

16     Prosecution Witness Wilson:

17             "The weight of fire seemed to be going."

18             Transcript page 3970.

19             No evidence beyond this is led that any non-military targets were

20     deliberately engaged.  In the context of the consistent and enduring

21     attacks by the ABiH on SRK positions, the failure to negotiate peace by

22     political and diplomatic means and the expressed intent of Izetbegovic to

23     continue the conflict in Sarajevo, almost at all costs, it surely can be

24     understood that a complete cessation of hostilities could not have been

25     achieved in Sarajevo without the use of considerable force.  However, the

Page 44763

 1     cessation of hostilities would not only have enabled the SRK to fulfil

 2     their objective in Sarajevo but would also have saved countless lives and

 3     millions of dollars on all sides of the confrontation.  The military

 4     advantage anticipated was therefore considerable.  Intense and prolonged

 5     assaults of this nature have been used by countless armies around the

 6     world to achieve their objectives.  Such assaults are often referred to

 7     as shock and awe or "rapid dominance."

 8             That -- we'd like to go into private session, Your Honours.

 9             JUDGE ORIE:  We move into private session.

10                           [Private session]

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22                           [Open session]

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

24             JUDGE ORIE:  Thank you, Mr. Registrar.

25             MR. IVETIC:  Given the forward-looking nature of the principle of

Page 44764

 1     proportionality, the failure of the SRK to achieve their anticipated

 2     advantage does not render the assault unlawful.  This is again from the

 3     Fuel Tanker Case we discussed earlier, page 63 to 66.  Nor, in fact, does

 4     it evidence the charge of terror.  In light of the fact that there

 5     were -- that each assault was justified militarily, whether because they

 6     were acts of defence against an immediate threat, repositioning to

 7     improve their defences against an expected threat, or attempts to end the

 8     conflict and eliminate the threat altogether, the SRK cannot be said to

 9     have acted for the primary purpose of inflicting terror amongst the

10     civilian population of Sarajevo.

11             I will now turn to the use of modified aerial bombs in Sarajevo.

12             The Prosecution has alleged that the use of modified aerial bomb

13     in the latter years of the war was particularly disproportionate.

14     However, on the contrary, when deciding on the proportionality of an

15     attack, those planning, launching, or responding to assaults are entitled

16     to take into account the current weapon stocks and future supply

17     requirements of their army.  The evidence tells us that at the time

18     modified aerial bombs were employed, the SRK suffered an acute shortage

19     of artillery and weaponry, D486, D686, D535.

20             Given their limited stock, the sole use of mortar would have

21     depleted their stock to such a degree that they had no effective defence

22     against ABiH assaults.  This was a particular consideration because

23     despite what the Prosecution would have you believe, the evidence shows

24     that the ABiH had some considerably stronger -- had become considerably

25     stronger and better armed throughout the conflict, D468, paragraphs 17 to

Page 44765

 1     19.

 2             Without a variety of mortar and artillery available to them, it

 3     was believed that the ABiH could and would breach SRK lines and massacre

 4     the civilians living in SRK territory, D468.  The preservation of a

 5     variety was therefore of significant importance and military advantage to

 6     the ability of the SRK to defend against the attacks of the ABiH.  It was

 7     for this reason and no other that modified aerial bombs were designed,

 8     constructed, and ultimately used by the SRK in Sarajevo.  They were not -

 9     as the Prosecution has alleged - introduced in order to terrorise the

10     civilian population of Sarajevo and they were not - as was also alleged

11     by the Prosecution - amateurly designed, imprecise weapons, improvised by

12     the SRK.  Indeed, even the Prosecution at paragraphs 1005 and 1006 of

13     their final brief concede that the modified aerial bombs were designed by

14     experts; constructed at one of the largest special-purpose weapons

15     production factors in the former Yugoslavia, Pretis; and subjected to

16     extensive testing prior to their distribution and use.  The modified air

17     bomb were also accompanied by a detailed firing table, a firing table, it

18     should be noted, that the Prosecution repeatedly denied in their

19     desperate attempt to substantiate their allegations against

20     General Mladic even though it was shown to have existed.  To this end,

21     Your Honours, the use of the modified aerial bombs cannot be said to be

22     either disproportionate or unlawful.

23             Your Honours, I would now like to draw your attention to the

24     allegation by the Prosecution that the indiscriminate shelling of

25     Sarajevo is evidenced by the occasional impact of one or two shells in

Page 44766

 1     the residential areas of Sarajevo, for example, paragraph 778 of their

 2     brief; and the allegation that unlawful sniping is evidenced by the

 3     deaths of civilians by gun-fire.

 4             It should be noted from the outset that the Prosecution has not

 5     provided any evidence which demonstrates that such shells were wilfully

 6     launched at these areas by the SRK or those shots made wilfully against

 7     civilians.  This is particularly so, given that it is a known fact that

 8     the accuracy of any weapon is affected by a number of factors, including

 9     weather and atmospheric condition, Witness Hamill, transcript page 5525.

10     And that natural, unavoidable, variations occur between weapons, even

11     those of the same type and make.  This should be borne in mind when

12     analysing incidents such as G6, in which the Prosecution have alleged

13     that the SRK fired three rounds at Geteova Street and Bosanska Street in

14     Alipasino Polje, completely ignoring the fact that the Prosecution's own

15     witness admitted that the ABiH's Kulin Ban barracks was located on the

16     other side of the building from where the mortar impacted.  This was at

17     transcript page 4293.  And the Prosecution counsel demonstrated apparent

18     ignorance by asking if the witness personally knew Mr. Kulin Ban.  The

19     Kulin Ban barracks stood a mere 150 metres away, as visualised in D82.

20     This is well within the accepted beaten zone of a mortar system, as

21     testified to by Prosecution Witness Hamill.  The majority of damage which

22     occurred to civilian objects in Sarajevo occurred on or near the front

23     line.  Only a comparatively small degree of damage occurred without

24     apparent military justification away from these areas, P640, page 16.

25     The Prosecution has not evidenced that General Mladic wilfully ordered

Page 44767

 1     the shelling of these positions or that the SRK deliberately engaged

 2     them.  As such, the Prosecution cannot claim that these unintended

 3     impacts of both artillery and gun-fire, if caused by the SRK at all, were

 4     not the result of weather conditions, faults in the weaponry, or natural

 5     variations between the weaponry.

 6             SRK assaults on Sarajevo cannot, therefore, reasonably be

 7     considered unlawful or made in the pursuit of terror merely because a

 8     small number of sniping or shelling incidents are alleged to have

 9     impacted on non-military targets.  Arguably, in fact, the city of

10     Sarajevo itself consisted a valid military target in its entirety.  As

11     the Court is undoubtedly already aware, Article 3(c) of the ICTY's

12     Statute as well as general international law prohibits attacks or

13     bombardments by whatever means of undefended cities.  Nevertheless,

14     Sarajevo does not qualify as an undefended city due to the substantially

15     spread out military activities occurring throughout that city.  Under the

16     military manuals and national practice of Bosnia and Herzegovina and the

17     SFRY, in order for a city to be undefended, it must have been recognised

18     as such by the parties or if must fulfil certain conditions such as lack

19     of armed forces and activities of a military nature.  We see this from

20     both the 1992 BiH military instructions and the 1988 SFRY military

21     manual.  International law dictates that the respective city must have

22     been recognised by the belligerent parties as "open" or, alternatively,

23     that it must fulfil concern preconditions such as lack of a defence and

24     any armed forces.  This comes from multiple military manuals, including

25     the UK, Canada, Australia, Belgium, Germany, and the United States.

Page 44768

 1             JUDGE ORIE:  Just to be sure, is it the position of the

 2     Prosecution that Sarajevo is an undefended city?

 3             MR. TIEGER:  I don't believe you heard that as an argument in the

 4     final brief.  I don't believe you heard it from Mr. Weber during his

 5     argument and -- but you'll hear our response to that position, that

 6     assertion by the Defence, in our rebuttal.  The issue is no we haven't

 7     made that -- the -- that's not the reason that the terror campaign was

 8     illegal.

 9             JUDGE ORIE:  No, so -- I'm raising it, Mr. Ivetic, because

10     apparently you are responding to a position which -- at least as such,

11     even I think a search through the final brief on undefended doesn't give

12     any hit at all, but please keep that in mind if we are proceeding.

13             Please proceed.

14             MR. IVETIC:  I will, Your Honour, but they're charging the case

15     under the Statute which applies to undefended localities, so I believe

16     that they are making that implicit representation; and that's why we're

17     responding to it.

18             MR. TIEGER:  What Statute is Mr. Ivetic talking about?  I wish

19     you would ask him that, Mr. President.  In terms of charging it under the

20     Statute, referring to undefended cities, how does he incorporate that

21     into the Prosecution's argument?

22             MR. IVETIC:  I just read it, but I'm not here to engage in a

23     debate, Your Honours.  I'd like to continue.

24             JUDGE ORIE:  Well, I'm -- we are here to hear final argument and

25     to the extent the Chamber -- Mr. --

Page 44769

 1             To the extent with we have a question mark on whether you're

 2     responding to a position by the other party, we are in a position to

 3     clarify that.

 4             But please proceed.  Keep this in mind.

 5             MR. IVETIC:  Okay.  International law --

 6             JUDGE ORIE:  Mr. Mladic should refrain from speaking aloud.

 7             Mr. Lukic.  Mr. Lukic, could you take care that Mr. Mladic

 8     continues at an inaudible volume.

 9             MR. LUKIC:  That's exactly what I'm trying, Your Honour.

10             JUDGE ORIE:  Yes.  Okay.  And then otherwise he should save his

11     comments to the next break.

12                           [Trial Chamber and Legal Officer confer]

13             MR. IVETIC:  May I continue or ...

14             JUDGE ORIE:  Yes, could we -- could Mr. Mladic now refrain from

15     speaking aloud.

16             I ...

17                           [Trial Chamber confers]

18             JUDGE ORIE:  Yes, thank you.  We understand you're quoting the

19     law.  Fine.

20             Please proceed.

21             MR. IVETIC:  As is already known, Sarajevo was the scene of

22     strenuous and long-lasting combat.  The imposition of the 1994 --

23             Your Honours, I'm told that the translation has ceased.

24             JUDGE ORIE:  Mr. Mladic should stop speaking at a volume we can

25     hear.

Page 44770

 1             MR. LUKIC:  He was just complaining that he didn't have

 2     translation.  He has to warn us about that aloud.

 3             JUDGE ORIE:  Yes, no, no, that's fully accepted.  Is it ... is

 4     anyone else using B/C/S so as to verify whether translation is --

 5     perhaps --

 6             MR. LUKIC:  It's fine now.

 7             JUDGE ORIE:  Okay.  Then, if there's no translation, Mr. Lukic,

 8     it goes without saying that Mr. Mladic always is in a position to raise

 9     that matter.

10             Please proceed, Mr. Ivetic.

11             MR. IVETIC:  The imposition of the 1994 demilitarisation

12     agreement in Sarajevo having failed, there was never any agreement as to

13     the status of Sarajevo as an open city.  On the contrary, as much as the

14     Prosecution may not like it, the evidence shows that the city was at all

15     times occupied by ABiH personnel and with a significant number of

16     military objects, thus rendering Sarajevo a defended city.  Furthermore,

17     the strategic location of Sarajevo, its industrial capacity, and its very

18     nature indisputably confer an effective contribution to military actions.

19     It is the capital and the biggest urban settlement in BiH which, ipso

20     facto, renders its destruction, capture, or neutralisation a definite

21     military advantage.

22             Moreover, the neutralisation of the BiH troops present in the

23     city offers an incontestable military advantage.  Consequently, Sarajevo

24     fulfils the requirements for a legitimate military object looking at

25     Article 52(2) of Additional Protocol I, 1977, and it makes the ABiH's

Page 44771

 1     refusal to allow people to leave the city all and their use of human

 2     shields all the more horrific.  As such, directing attacks toward it is

 3     was indeed lawful and the accused cannot be held accountable for carrying

 4     out his responsibilities, as the general of the army, within the

 5     boundaries of the law.

 6             All that we have discussed this morning leads to the conclusion,

 7     Your Honours, that there was no criminal plan designed or implemented in

 8     Sarajevo, let alone a modulation of any supposed campaign which was used

 9     to leverage the accord of the Bosnian Muslim leadership.  Despite the

10     attempts of the Prosecution to have you believe otherwise and their

11     deliberate omissions of the context, the evidence shows us that the

12     actions of the SRK were militarily justified:  They were responding to

13     the assaults of the ABiH, improving their defensive positions, and trying

14     to bring about a conclusive end to the conflict in Sarajevo.  In light of

15     this, they cannot be said to have undertaken for the primary purpose of

16     inflicting terror upon the civilian population of Sarajevo.  There was no

17     ratcheting up or ratcheting down.  In fact, the times ratcheting alleged

18     by the Prosecution accord with only one of the major agreements

19     negotiated throughout the conflict, an agreement which incidentally was

20     rescinded by Alija Izetbegovic, hardly evidence of well-modulated,

21     drawn-out campaigns through which the VRS and RS manipulate others into

22     acting in accordance with their wishes.  The Prosecution has neither

23     evidenced any link between this supposed ratcheting and the progress of

24     the conflict in other areas of Bosnia-Herzegovina.  In what way,

25     therefore, was Sarajevo used as a lever?  In fact, the Prosecution case

Page 44772

 1     is so weak that they have not even been able to evidence any linkage

 2     between the SRK and the peaks in shelling and various assaults alleged by

 3     the Prosecution in paragraphs 770, 777, and 797 of their final brief.  In

 4     view of the overwhelming evidence demonstrating the ABiH's propensity to

 5     self-target, it cannot be alleged on any sound basis that these peaks are

 6     evidence of the SRK or General Mladic's modulation of the conflict.

 7     Indeed, it is highly possible that these peaks and troughs were

 8     illustrative only of the ordinary course of wars.

 9             The allegation that humanitarian aid was restricted or forbidden

10     without cause and that this was part of some ploy to spread terror or use

11     Sarajevo as leverage is, to use the language of the Prosecution, a mere

12     conspiracy theory.  In referencing the Defence brief at transcript page

13     44502, Mr. Weber selectively omitted to address the substantial amount of

14     evidence which demonstrates the widespread and pervasive abuse of the

15     airport and humanitarian aid convoys to smuggle in weapons, ammunition,

16     and military goods for the ABiH.  And the evidence which shows that once

17     these illicit goods were removed and sometimes even in spite of the

18     presence of these illicit good, humanitarian aid was permitted to

19     continue.  In fact, an UNHCR investigation undertaken in 1993 found that

20     over 2500 tonnes of food had been stockpiled, only a fraction of which

21     was reaching the civilians, a situation which changed little throughout

22     the war; a 1994 report finding less than a third of the aid brought into

23     the city actually reached civilians.  D8, page 3; P7779, page 3.

24             It is preposterous to suggest that the accused could somehow be

25     responsible for hoarding of aid by the BiH side.  Similarly, given the

Page 44773

 1     evidenced attacks of the ABiH on the supply of gas, water, and

 2     electricity into Sarajevo, any periods of disruption are attributable as

 3     much to the actions of the ABiH than any other; and as such, do little to

 4     evidence the Prosecution's claim that General Mladic modulated the supply

 5     of these services as a form of leverage.

 6             Your Honours, I could spend consider time going through the

 7     16th Assembly speech which the Prosecution has primarily relied upon to

 8     evidence the general's supposed intent to engage in a common criminal

 9     plan, but we have spent time on this already; and given this, I will not

10     repeat that evidence.

11             As discussed in the JCE section, Karadzic was the supreme

12     commander of the VRS and, consequently, the SRK.  Mladic was subordinate

13     to him.  In accordance with the culture and the ethos of both the

14     military and the Serbian people, Mladic could not and would not publicly

15     disagree with his supreme commander.  Rather, these conversations

16     occurred behind closed doors, but despite this there is significant

17     evidence to demonstrate that disagreements between Mladic and Karadzic,

18     in fact, did occur P1469, page 2.  The same is true of Mladic's

19     relationship with his subordinates, particularly Galic and Milosevic.

20     Indeed, in P1052, page 7 through 8, it is noted that Karadzic and

21     Krajisnik would often call on Milosevic to come and see them to plan

22     operations in Sarajevo.  Krajisnik and Karadzic, it was said at page 26

23     to 27 of the same document, did not spend much time in the Main Staff

24     often, nor did they invite the general to meetings or other broader-based

25     gatherings.  Karadzic's and Krajisnik's attitudes towards the Army of

Page 44774

 1     Republika Srpska is illustrated by their direct contacts and invitations

 2     to General Milosevic, commander of the SRK.  On many occasions Milosevic

 3     responded to those invitations for which he was reprimanded by Mladic,

 4     who even warned him that he was forbidden to go and talk to Karadzic and

 5     Krajisnik without his approval.  Because of such behaviours by Karadzic

 6     and Krajisnik, Mladic got into arguments with them as well and pointed

 7     out that officers subordinated to him could not be summoned without his

 8     knowledge.  The content of those talks between Karadzic, Krajisnik, and

 9     General Milosevic is not known.  General Mladic can hardly be said to be

10     acting in collusion with those who deliberately excluded him from their

11     operational planning.  To borrow a phrase from my learned colleague

12     Mr. Tieger:  Scratch the surface of the Prosecution's allegations and it

13     falls apart.

14             The Prosecution talks of murder and unlawful attacks and terror,

15     and in doing so they make broad, uncontextualised allegations that do

16     little to prove the elements of these crimes.  They hope to bamboozle you

17     with numbers and figures and images which will invoke your sympathies and

18     cover the fact that they have not met the burden of proof required for

19     the charges they have alleged.  They attempt this most predominantly by

20     evincing videos, images, and accounts of the horrors that people

21     experienced throughout this conflict.  When viewing these images and

22     hearing these testimonies, it is impossible as a human not to feel

23     something in reaction and to feel compelled to leap to a conclusion based

24     upon that feeling.  And it's easy to forget in the midst of that, that

25     these images predominantly depict only one perspective of the conflict,

Page 44775

 1     that from inside Sarajevo, where - incidentally - most of the

 2     international personnel and media were stationed.  These images and

 3     videos and testimonies do not capture the conflict in Sarajevo in its

 4     totality.  They do not show the full picture.

 5             The evidence presented in this case does not prove beyond a

 6     reasonable doubt that the SRK of General Mladic allowed for or undertook

 7     any unlawful attacks.  It does not show that terror was intended or that

 8     the death of any person in Sarajevo was the result of deliberate actions

 9     of either the SRK or General Mladic.  It does not show a JCE existed or

10     that the conflict in Sarajevo was modulated for use as some imaginary

11     level for RS, Republika Srpska, to get what it wanted out of its

12     political negotiations.  What it does show is that the SRK and

13     General Mladic fought in defence of their homes, their lives, and their

14     right for every ethnicity to be treated as equals, both politically and

15     socially.  It shows the difficult position -- the difficult decisions

16     that both the general and his men faced on a daily basis and their

17     efforts to protect themselves and their families from incessant assaults

18     of the ABiH and a political leader - Izetbegovic - who would sacrifice

19     all for his gain.

20             Now I wish to move to the Srebrenica part of the case, where

21     various parts of the indictment allegation everything from forcible

22     transfers, persecutions, to genocide.

23             We believe that a considerable amount of reasonable doubt exists

24     to what happened and why in Srebrenica.  While this Defence does not deny

25     that a certain number of men and boys were tragically killed in acts of

Page 44776

 1     personal revenge at Srebrenica, these killings have nothing - nothing -

 2     to do with any orders or intentions of General Mladic.  Sadly, the

 3     Prosecution chose not to investigate Srebrenica in a proper manner, and

 4     we thus will never know the full truth, nor ascertain the true number of

 5     persons killed in crimes, as opposed to legitimate deaths from combat,

 6     attempted escapes, and other circumstances from the years prior that are

 7     included in the Prosecution's figure.

 8             Rather than seeking truth and reconciliation, Mr. McCloskey urged

 9     you to "strike back" at Mr. Mladic for these crimes.  This was at

10     transcript 44526.  Respectfully, I don't believe the mandate of this

11     Tribunal is based upon vigilanteism and revenge; rather, it is supposed

12     to be justice and truth.  Only the proper application of justice and

13     truth can try to heel the wounds of Srebrenica and lead to reconciliation

14     and peace.  The truth is that we will never know if all these tragic

15     events from July 1995 could have been avoided.  Arguably, had the

16     international community - including the United Nations but especially the

17     United States - acted in good faith as to the demilitarisation of

18     Srebrenica and had Naser Oric's ABiH troops in Srebrenica laid down their

19     arms or departed either in 1993, 1994, or even 1995, the situation would

20     be different, but they did not.  Demilitarisation was an illusion and a

21     lie in a tragic play which saw only Ratko Mladic adhering in good faith

22     to demilitarization and seeking peace in the Srebrenica area, while the

23     United Nations turned a blind eye to its obligations to enforce

24     demilitarisation against the ABiH and the United States actively assisted

25     the troops of Naser Oric to violate the agreement and resupply their

Page 44777

 1     arms.  We saw through the evidence that the ABiH turned over only antique

 2     and non-functioning weapons, while hiding its true armaments and forces

 3     in the Srebrenica enclave, from where they conducted vicious and barbaric

 4     attacks against surrounding Serb villages killing over 1,300 Serbs in the

 5     years prior to 1995.

 6             General Mladic continually pleaded with the UN to enforce the

 7     demilitarisation of Srebrenica and for a complete cessation of

 8     hostilities as to the area.  Look at D944, D1665.

 9             But apparently only General Mladic was engaged in genuinely

10     seeking the attainment of peace.  Everyone else was intent on the sham

11     demilitarisation and the myth that Srebrenica was a protected area.  Do

12     not blame and strike back at General Mladic - as sought by the

13     Prosecution - for the failings and malfeasance of others, including

14     politicians and Bosnian Muslim officials and the SDA.  They share the

15     blame with those that perpetrated the killings in Srebrenica, the

16     killings on both sides, prior to 1995 and in July 1995, not Ratko Mladic.

17     He does not have that blame.

18             The Prosecution's narrative would ignore and deny what even

19     Prosecution witnesses like Momir Nikolic talked about, discussing the

20     desire of local Serbs for revenge for Oric's crimes as being palpable in

21     1995, transcript page 34930.  Such tendency for revenge was confirmed by

22     Prosecution investigator Ruez, 10417.  Military expert Kovac also talked

23     of that as a cause of the Srebrenica killings, transcript page 41395.

24     Oric's crimes do not excuse the revenge killings in 1995, but they do

25     explain them and demonstrate why persons would act contrary to any orders

Page 44778

 1     of General Mladic to safe-guard the POWs.

 2             Further, the Prosecution narrative ignores the fact under law -

 3     which we have just discussed - that Srebrenica was also a defended city.

 4     Thus, its status as a protected area was nullified because of the failure

 5     of the ABiH to demilitarise.

 6             GRM097 testified that a failure to disarm released the Serb side

 7     from obligations under the agreements as to Srebrenica, as they had a

 8     right to self-defence from ABiH attacks.  Witness Akashi told us that the

 9     Secretary-General of the UN complained of the flaws and failures of the

10     UN protected area regime to the UN Security Council to no avail,

11     including the failure to demilitarise the enclave and that the ABiH was

12     continuing to militarily use Srebrenica to stage attacks.

13             None of the actions of the VRS undertaken in the lead-up to the

14     Krivaja 95 operation can be understood as evidencing a criminal intent to

15     commit genocide or otherwise, because the alternative conclusion is

16     available under evidence to conclude that such actions were legitimate

17     responses to the attacks and encroachment of the ABiH forces from

18     Srebrenica and the failure to demilitarise which rendered Srebrenica a

19     defended city.  Again, Prosecution expert Butler and Mr. McCloskey have

20     conceded that even the very operation of Krivaja 95 is a legitimate

21     military aim; and therefore, Your Honours, it cannot be used as evidence

22     of a crime.  We saw that last Friday with a PowerPoint, where I showed

23     you their positions on that from the record.

24             And now, despite that, in the final brief of the Prosecution at

25     paragraph 1116 the Prosecution presents a new theory, namely, that

Page 44779

 1     Krivaja 95 was meant to force humanitarian conditions, forcing people to

 2     leave.  And we heard already last week how the Prosecution tried to

 3     misrepresent the Fontana meetings, contrary to the evidence and

 4     conclusions of Mr. Butler.  Don't let them do that.  Once they've said

 5     something is not illegal and not criminal, they can't go back and claim

 6     it is.

 7             Thus far, we have demonstrated in our submissions that the

 8     Prosecution position seeks to disavow and defeat no fewer than three of

 9     their own expert witnesses on military matters.  The Defence cannot

10     stress enough that the Prosecution has conceded through their expert

11     Richard Butler that not a single order of General Mladic has been found

12     which orders any of the killings alleged as to Srebrenica.  For the

13     record, he said that at transcript page 16573.  Your Honours, that is

14     pretty compelling of reasonable doubt and acquittal right there.  Such a

15     result, acquittal, becomes all the more necessary the more you review the

16     Prosecution evidence.  And as a preliminary matter, last week it was

17     suggested that the Mladic Defence is blaming General Krstic for the

18     crimes of Srebrenica; nothing can be farther from the truth.  It is not

19     our job to accuse anyone, nor prove anyone's guilt.

20             Last week the Prosecution showed several videos of Potocari to

21     demonstrate how "images that speak for themselves" of people fleeing.

22     This was at transcript page 44536 and 44537.  Yet, the images that you

23     were shown were craftily edited, such that in one segment you were shown

24     a vast image of civilians, but General Mladic speaking and addressing

25     them was cut out by the Prosecution, as was the expressions of gratitude

Page 44780

 1     towards General Mladic from this crowd of people.  We will see those

 2     missing clips later in this presentation.

 3             But now I want to take a step back and first respond to the

 4     allegations of forcible transfer.  Last week, Mr. McCloskey said, and now

 5     I quote him from transcript page 44537:

 6             "The idea that these people voluntarily left is insulting."

 7             Strong words.  I dare say, then, that whatever insulting

 8     behaviour upset Mr. McCloskey, it is misplaced if he looks at my client

 9     for the reason they left.  Nothing can be farther from the truth.  But

10     let's take a look at Mr. McCloskey's own evidence on this topic, because

11     again he is the one with the burden of proof; and his own evidence

12     demonstrates Mr. Mladic cannot be blamed for any of the forcible

13     transfers from Srebrenica.

14             In fact, Prosecution evidence demonstrates that it was first the

15     BiH command in Srebrenica themselves who decided to abandon Srebrenica

16     and directed the civilians would go to Potocari, to the UN base there,

17     whereas the males would start off in a military formation and set out

18     from Susnjari and try to break through the Serb lines, Prosecution

19     Witness RM253; Prosecution Exhibit P1547, paragraph 2.  If there is a

20     need to be insulted, the rage should therefore be against the Bosnian

21     Muslim leadership, not Mladic.  My client cannot be held responsible for

22     the acts of these persons.  This is either evidence of a voluntarily

23     departure or the SDA and ABiH forcing their own people to go.  Either

24     way, General Mladic is not to blame.

25             If we can have the slide on the screen.

Page 44781

 1             By the way, P1462 - admitted in this case as the 92 ter statement

 2     of Witness Malagic - is an expert from her testimony in the Tolimir case,

 3     where Mr. McCloskey himself elicited the following testimony at pages 12

 4     to 13 in e-court:

 5             "Q.  And describe to us what happened there, what was going on

 6     now again as best as can you recall but ...

 7             "A.  My older brother, my husband, and my sons decided at that

 8     moment with other able-bodied men that they could reach Tuzla on foot, so

 9     they simply went towards the free territory.  They were looking for a way

10     out.  They did not dare to go to Potocari.  They told us women and

11     children and the infirm to go towards Potocari, telling us that the

12     UNPROFOR was going to protect us.  They were not able to take the same

13     route."

14             Again, the evidence led by Mr. McCloskey does not evidence

15     Mr. Mladic telling people where to go.  The Bosnian Muslims decided for

16     themselves.

17             By the way, the Prosecution's final trial brief concedes at

18     paragraph 1161 that Colonel Karremans of DutchBat asked General Mladic to

19     approve departure of both DutchBat and the civilians from Potocari

20     because the civilians of Srebrenica wanted to go.  The brief says they

21     wanted to go.  Pay attention to what the Prosecution has conceded -

22     reasonable doubt - and therefore, this is case is worthy of acquittal.

23             If now we have also in evidence Prosecution Witness Franken and

24     D280 is the statement he gave to the Dutch Ministry of Defence, page 6 of

25     which has been excerpted in the slide that we have before us.  And we see

Page 44782

 1     here it says:

 2             "Regarding refugee transport, it was agreed with Mladic that

 3     UNPROFOR would supervise it.  Our role was to provide as much presence as

 4     possible and to escort them.  The men were separated from the women.  The

 5     Muslims agreed to let the men be investigated for war crimes, under the

 6     supervision of the UNHCR and the Red Cross."

 7             And then we have:

 8             "NB:  Franken says he is in the possession of the English and

 9     Bosnian text of the agreement with Mladic.  He himself proceeded on the

10     basis of an oral translation by the interpreter."

11             From this evidence, one can conclude a totally benign status of

12     refugee transport, not deportation nor forcible transfer.  Reasonable

13     doubt means acquittal.

14             Then if we look at the entirety of the context, it is clear that

15     the UN personnel, both inside and outside Srebrenica, determined that a

16     humanitarian evacuation, not a deportation, not a forcible transfer, of

17     civilians from Potocari was a necessity.  Among others, we heard

18     Generals Nicolai, major Franken, and Colonel Boering all attest to that

19     fact under oath in the courtroom; and again, they used the word

20     "evacuation."  Documentary evidence of the VRS demonstrates that what was

21     intended and understood from their side was, again, an evacuation and

22     that terminology was used.  Look at P1714, for instance.  Respectfully,

23     the Prosecution hopes by referring to these events as forcible removal or

24     deportation that they can ignore and overcome the plethora of evidence to

25     the contrary.

Page 44783

 1             I propose now to take a look now at P1165, the witness statement

 2     of Prosecution Witness General Cornelius Nicolai taken by the Prosecution

 3     in 1996 and paragraph 59 of the same.  If we can have the next slide.

 4             Again, if the Prosecution feels insulted by what is said in here,

 5     that feeling of insult was not shown when this document was tendered by

 6     the Prosecution.  Looking at this particular paragraph of the statement

 7     it says here:

 8             "Colonel Karremans commenced negotiations with General Mladic

 9     that night, and I was advised for the first time that Mladic was on the

10     grouped there.  The next day, the negotiations were to continue with

11     Mladic.  We were instructing Colonel Karremans on what he had to do

12     during these [sic] negotiations - these negotiations by telephone and in

13     writing.  We instructed him to stay with the civilian population so that

14     he and his men could observe the evacuation in order that it would be

15     carried out within the international rules.  Directly after we stopped

16     the air attacks, we realised that the civilian population would have to

17     be evacuated from Srebrenica.  There was no food, enough medical care, or

18     even protection from the weather for the people there.  We had hoped to

19     do this under the cover of the UNPROFOR troops and even use UNPROFOR

20     trucks, if necessary.  On the 11th of July, I had informed the Dutch

21     minister of defence of the planned evacuation and our intention to use

22     UNPROFOR trucks and he had agreed to this."

23             What is clear from this is that UNPROFOR, after it stopped the

24     air attacks, decided it must evacuate the civilians from Srebrenica.

25     There was not a consultation with Mladic before they decided this.  It

Page 44784

 1     was that the UN that decided before Karremans even met with

 2     General Mladic.  Again, if we are to view the departure of civilians from

 3     Srebrenica as a crime, as part of a JCE, then the Prosecution's own

 4     evidence implicates that this crime would have to be hatched by UNPROFOR,

 5     by the Dutch minister of defence, and by the Dutch Chief of Staff of BH

 6     command, not by General Ratko Mladic.  And let's recall that

 7     General Nicolai was rather honest about this when he testified here.  If

 8     we can -- yeah.

 9             "Q.  And, thus, I suppose, sir, that the instructions and orders

10     you sent to Colonel Karremans before he met with General Mladic for the

11     first time would have dealt with the elevation and the need for the

12     refugees to be evacuated; am I correct?

13             "A.  Yes.  That was -- I no longer needed to explain the

14     necessity of this to Colonel Karremans.  He could readily understand

15     this, and it was also simply an order from UNPROFOR to Colonel Karremans

16     that the evacuation would have to take place.  However, naturally, we did

17     have to inform him as to how we supposed this might take place before --

18     because for the execution we needed the co-operation of the Bosnian Serb

19     forces, where he had to negotiate that on the spot."

20             And, Your Honours, I think we're at the time for the break.

21             JUDGE ORIE:  We are, Mr. Ivetic.  Thank you for reminding me.

22             We'll take a break, and we'll resume at 15 minutes past midday.

23                           --- Recess taken at 11.55 a.m.

24                           --- On resuming at 12.16 p.m.

25             JUDGE ORIE:  You may proceed, Mr. Ivetic.

Page 44785

 1             MR. IVETIC:  Thank you, Your Honours.

 2             I neglected to mention the transcript page of the selection I

 3     just read out for General Nicolai.  It is transcript page 10654 of our

 4     transcript and it's been brought to my attention at temporary transcript

 5     page 7, line 13, I used "PTT building" when I should have used "RTV

 6     building" when referring to Mr. Weber's comments from the other day.

 7             And now I'll continue.

 8             So from this testimony of Nicolai we see that Colonel Karremans

 9     was ordered by his UN superiors to negotiate for what the UN wanted,

10     which was the co-operation of the VRS to get the Bosnian Muslim civilians

11     out of Potocari.  Again, if there is a criminal order for any removal of

12     people from Srebrenica, it does not bear Mr. Mladic's signature; it bears

13     an UN stamp.

14             If we can go to the next slide.

15             Then we have the Prosecution's own trial video, P1147, and here

16     we have a portion from the transcript dealing with Mr. Karremans and this

17     is Mr. Karremans speaking in the video:

18             "Then I asked for a -- let's say, a team from the UNHCR and civil

19     authorities which can deliver us the means, like buses.  The only thing I

20     can do is studying the amount of persons and for that amount of person,

21     we need, let's say, transport.  Counting.  But if it's possible, I can

22     ask for buses through my own authorities, let's say military authorities,

23     but I really don't know what they can give me.  I don't know yet.  We are

24     busy with determining which -- which people like to go where, but that

25     needs time, and I don't -- I don't know, of course, what is possible in

Page 44786

 1     that -- in that way.  But I presume that that something which Mr. Mandzic

 2     can tell.  I don't know where they'd like to go.  Then we make a -- let's

 3     say, a plan for evacuation which persons do need to go first because of

 4     age, illness, et cetera."

 5             Now, again, I notice no one is using the word "deportation" nor

 6     "forcible transfer."  It's always "evacuation."  Mr. Mandzic was

 7     mentioned, you will recall, is a representative of the Bosnian Muslim

 8     civilians themselves.  So again we have here an alternate, reasonable

 9     conclusion under the evidence, that the Bosnian Muslim civilians were

10     voluntarily determining where they wanted to go.  Reasonable doubt exists

11     and acquittal is warranted.

12             If we can go to the next slide.

13             Now, Colonel Boering of DutchBat likewise testified and just

14     after having watched this very same segment of the Srebrenica trial video

15     which we just read from the transcript of, he testified as follows at

16     transcript page 10067 to 10068:

17             "A.  We prepared the second meeting.  We discussed various

18     organisations who might possibly offer support, then requests to go to

19     Tuzla, Sarajevo.  These requests -- we also discussed various

20     organisations, but a real plan?  That's something I cannot recollect in

21     detail.  It was more in -- in general.  We mentioned organisations and a

22     way to get out of it.

23             "Q.  Lieutenant-Colonel Karremans says that drafting any

24     evacuation plan would involve establishing the priorities of those people

25     who wanted to leave.  When you were preparing for this meeting, did you

Page 44787

 1     ever discuss priorities and how they would be determined?

 2             "A.  Yes, I can remember that we discussed this, that we were

 3     going to transfer the wounded first and then the elderly and then, at the

 4     final stage, the healthy people.  So there were some priorities set

 5     there.  But I don't know how much detail we went when establishing it

 6     all."

 7             So, Your Honours, from this we see requests were being received

 8     to go to Tuzla and Sarajevo and recall from the evidence that these were

 9     both ABiH-held areas.  So again, people are voluntarily selecting where

10     to go.

11             Now let's finally get to what Mr. Mladic actually said on the

12     topic.  We saw last week the third Fontana meeting that nothing improper

13     was suggested in that meeting.  Again, expert Butler told us about that,

14     and I'd like to go to the next slide.  This is an encounter between

15     Mr. Koster and Mr. Mladic from the Srebrenica trial video, Eelco Koster

16     of DutchBat; and this is misrepresented by the Prosecution at paragraph

17     1200 and 629 of their brief.

18             Now, as to the video, Your Honours will recall - and you see it

19     in the transcript of the video - that the realtime translation received

20     by Mr. Koster by the translator on site in Potocari is incorrect and

21     misinterprets General Mladic as essentially saying that they would board

22     everyone on the buses, when in fact during our trial and with the revised

23     Srebrenica trial video, this translation was corrected to reflect what

24     General Mladic really said, which is:

25             "We will board everyone who wants it."

Page 44788

 1             Now, this incident gives us several things to think about.

 2     DutchBat members on the ground, based upon this clearly faulty

 3     translation, cannot be relied upon to correctly describe General Mladic's

 4     words and therefore his intent because we cannot exclude the possibility

 5     that this same faulty translator messed up other words of General Mladic

 6     that are not recorded on film for which we don't have the ability to go

 7     back and check now but which DutchBat members like Leandert van Duijn had

 8     in their mind and testified about.  But another thing strikes me about

 9     this mistranslation.  The mistranslation resembles the purported

10     intercept P1236 cited by the Prosecution.  And again, for that intercept

11     there's no recording of Mladic allegedly saying what is there and albeit

12     it's in the Croatian, not the Serbian language, which raises other

13     doubts.  But that intercept, in essence, says that the Serbs would

14     evacuate those that wanted to and those did not.

15             So given that this tape with the updated and corrected

16     translation only came in existence recently, can we exclude the

17     possibility of someone at the ABiH or perhaps an international agency

18     doctoring and faking intercepts to fit the accusations of forcible

19     transfer against Mladic, relying on the prior version of the tape with

20     the faulty translation or perhaps hoping that the faulty translation

21     would be used to support the authenticity of that intercept?  Because I

22     can't remove that possibility from my mind.  Again, reasonable doubt.

23             Now, let's look at the other footage from Potocari which the

24     Prosecution edited out of its presentation last week.  I would ask to go

25     to the next slide.  The transcripts have been provided.

Page 44789

 1                           [Video-clip played]

 2             "INTERPRETER: [Voiceover]

 3             "Mladic:  Anyone who wishes to be transported will be

 4     transported, be the person small, big, old, or young.

 5             "The Crowd:  Thank you.  Thank you.

 6             "Mladic:  Don't be afraid ... slowly, slowly.  Let the women and

 7     children go first.  Thirty business will arrive and we will transport you

 8     towards Kladanj.  From there, you will pass onto the territory controlled

 9     by Alija's forces.  Just don't panic and let the little children and the

10     women go first.  Be careful not to lose a child.  Do not be afraid.

11     Nobody will harm you.

12             "The Crowd:  Thank you.  Thank you.

13             "Man From the Crowd:  May you live long.

14             "Journalist:  General, after the liberation of Srebrenica, there

15     are several thousand Muslim civilians who are located here.  What will

16     become of them?

17             "Mladic:  Well, I have received the representatives of this

18     population here today and they have asked me to enable the civilians who

19     want to leave this territory to cross over into the territory controlled

20     by Muslims and Croats.  Our army wasn't aiming to fight the civilians or

21     the UNPROFOR forces.  We have organised transport for them, food, water

22     and medicine.  In the first round today, we will evacuate women,

23     children, and the elderly, as well as other people who want to leave this

24     combat zone of their own free will, without any coercion."

25             "Mladic:  How old are you?

Page 44790

 1             "Boy:  12.

 2             "Mladic:  Please be patient.  Anybody who wishes to stay, can

 3     stay.  Anybody who wishes to leave this territory can leave this

 4     territory.  We have provided enough buses and trucks.  You will be

 5     transported to Kladanj.  Just take it slowly."

 6             MR. IVETIC:  So just to make clear, we just heard General Mladic

 7     repeat that people had a choice to stay or to go, just as he told

 8     civilian representatives at the third Hotel Fontana meeting.  The

 9     gathered Bosnian Muslim civilians are heard to express gratitude and

10     bless General Mladic for his words and behaviour towards them.  This is

11     the very same General Mladic who sits before you today and who patiently

12     and with great discomfort had to listen to the Prosecution's hurtful

13     accusations last week.  If anyone in this courtroom deserves to feel

14     insulted by the insinuations of forcible removals, it is General Mladic.

15             For Your Honours, as we have seen, the decision to have people

16     leave Srebrenica was made first and foremost by the inhabitants of

17     Srebrenica themselves and by the ABiH forces therein.  Then the UN

18     ordered that they be evacuated and tasked Colonel Karremans to present

19     this as a complete plan -- as a fait accompli to General Mladic and asked

20     for help for a humanitarian evacuation.  General Mladic agreed to help

21     and personally undertook to mobilise buses on short order.  How can one

22     conclude from this evidence that everyone who planned and ordered the

23     departures and presented them to Mladic is a saint and Mladic is to be

24     the devil, guilty of the crime of forcible transfers?  We just cannot

25     accept that.  Not unless, again, it is the Serbs that are guilty even for

Page 44791

 1     things that are called "humanitarian" if do you them and you're not a

 2     Serb.  However, if do you not believe this, an acquittal is required.

 3             Now I'd like to shift gears a bit and talk about the so-called

 4     JCE to eliminate or murder the men of Srebrenica.  I've already mentioned

 5     that Mr. McCloskey made up the story about the dinner between Krstic and

 6     Mladic in calm surroundings.  He described it, et cetera, the other day

 7     in his closing.  Let's look at what they actually said in the Prosecution

 8     final brief.  This is paragraphs 1063 and 1105.  Let's look at the first

 9     one first.

10             "Sometime between the evening of 11 July and the morning of 12

11     July, Mladic and other JCE members developed concrete plans to detain and

12     summarily execute large numbers of Muslim men and boys and forcibly

13     transport to BiH territory of women and children of Srebrenica."

14             How telling is this?  After all this, the Prosecution concedes it

15     does not even know when the plan was created.  So again, this cute little

16     fantasy of a dinner, is all made up.  Reasonable doubt exists; an

17     acquittal is mandated.

18             Now let's look at the second paragraph on this slide, also from

19     the Prosecution brief, 1105.  I'm going to read the highlighted portion:

20             "Up until that point, the objective was to permanently forcibly

21     remove the Bosnian Muslim population from Srebrenica.  Soon after Mladic

22     and the other JCE members became aware of the large number of men and

23     boys in Potocari, a JCE was created with the common criminal purpose of

24     eliminating Bosnian Muslims in Srebrenica."

25             At paragraph 1175, the Prosecution says that this happened

Page 44792

 1     sometime between the evening of 11 July and the third Hotel Fontana

 2     meeting at 10.00 a.m. on the 12th of the July.  So in their final brief,

 3     Your Honours, the Prosecution concedes that there can be no JCE to kill

 4     but for this mysterious meeting that they cannot locate any evidence

 5     about but that they're sure happened.  By the way, this means what I told

 6     you last week is true.  The statement of Mr. Mladic to the camera as he's

 7     still in Srebrenica, the one talking about "it's time to take revenge on

 8     the Turks" cannot be tied to any JCE to commit genocide or kill, since it

 9     predates this mysterious meeting between the evening of 11 July and

10     12 July that the Prosecution says is the actual start date for that JCE.

11     Remember, reasonable doubt mandates acquittal.

12             Now let's try to find this mysterious meeting where everyone had

13     to talk about and decide to form into this JCE to eliminate, because

14     without this meeting the Prosecution's case is lost.  Paragraph 1175 of

15     the Prosecution brief says:

16             "In deciding to kill the able-bodied men in Potocari, Mladic

17     would have consulted with Krstic and his senior intelligence and security

18     offers present in Bratunac, Popovic, Keserovic, and Jankovic."

19             And then to support that allegation they have a footnote relating

20     to VRS testimony of General Milovanovic.  Unfortunately, none of those

21     several references to General Milovanovic's testimony say anything about

22     this which is cited in the Prosecution's brief.  Again, the Prosecution

23     makes up its case when it doesn't have the evidence.

24             Various evidence of the meeting held at the Fontana hotel on the

25     evening of 11 July 1995 provides for the reasonable conclusion that no

Page 44793

 1     such criminal plan was discussed nor agreed to at this meeting.  To start

 2     with, it should be noted that even the Prosecution's star insider

 3     witness, Momir Nikolic, fails to allege that anything criminal was

 4     discussed at this meeting on the 11th.  Nikolic was not present, but he

 5     saw the accused, General Krstic, the commanders of the groups of each

 6     brigade who were participating in the Srebrenica operation, so

 7     Pandurevic, Blagojevic, Tribic, Andric.  According to Momir Nikolic this

 8     meeting took place around 1700 or 1800 hours when it was still light

 9     before the meeting at the Fontana hotel on the same day, and we get that

10     from D1228.  Afterwards, Nikolic found out from Blagojevic about what was

11     said at the meeting, namely, that the Srebrenica operation was analysed

12     and there was a conflict between Blagojevic and Krstic because they

13     disagreed on the Bratunac Brigade's participation and then a discussion

14     about the Zepa operation started and Pandurevic did not want to start

15     Zepa until the column of the 28th Division had been dealt with.

16             So again, Nikolic can't provide evidence of a meeting where

17     crimes were discussed.

18             Several witnesses testified that they were present for or heard

19     of a meeting that same evening, the 11th, where nothing criminal was

20     discussed and, rather, the plans for Zepa were discussed, which is again

21     what Nikolic says was discussed.  These are Colonel Andric, D1033,

22     paragraph 19; Milenko Jevdjevic, transcript page 32059 onwards;

23     Miodrag Dragutinovic, who told us that Pandurevic discussed the meeting

24     with him, transcript page 32241 to 32242.  The Prosecution claims that

25     all these witnesses are lying and that the meeting that they are talking

Page 44794

 1     about actually took place on 12 July, based solely on P1467, the diary of

 2     a Colonel Trivic that has a meeting on 12 July which is similar in

 3     nature.  It is interesting, however, that in saying that everyone is

 4     lying, the Prosecution does not include Momir Nikolic and never addresses

 5     his testimony that nothing criminal was discussed on the evening of 11

 6     July.  But there's one problem with that position, Your Honours.  The

 7     Prosecution says everyone is to be disbelieved, but the diary, the diary

 8     is said to be credible, reliable, written in great detail and precision

 9     and accurate.  And that's at paragraph 1216 of their final brief.  But

10     this very same diary has no meeting on the 11th of July nor at any time

11     where any JCE to kill the inhabitants of Srebrenica is discussed.  So

12     where is the this affirmative proof establishing beyond reasonable doubt

13     the meeting, the genesis of their JCE is alleged?  Simply put, they do

14     not present any.  Irrespective of the dates, no evidence links General

15     Mladic to any meeting when this crime was discussed -- when this JCE

16     would have been entered into.

17             Now having determines that this mystery meeting have to have

18     happened, the Prosecution uses it to discount the words of General Mladic

19     at the third Fontana meeting where he gives a choice to the Bosnian

20     Muslims to stay or go.  And the Prosecution says:  No, that's false.

21             "He clearly had no intention to allow any Muslims to stay."

22             That's paragraph 1171 of their brief.  In essence, the

23     Prosecution uses this mysterious, unproved, uncorroborated meeting.  Any

24     time that General Mladic says something that is favourable, they say he

25     must be lying because it was determined otherwise at this meeting.  Any

Page 44795

 1     time the Prosecution presents two alternatives, the Prosecution is

 2     admitting reasonable doubt exists.

 3             Now, if we can go to the next slide.

 4             The words and deeds of General Mladic repeatedly reinforce that

 5     he had no criminal intent as to captured Bosnian Muslim POWs in

 6     Srebrenica before he departed for Belgrade.  The evidence is also clear

 7     that General Mladic, personally had no contemporary knowledge of any of

 8     the crimes he is charged with.  Rather, the consistent evidence of both

 9     Prosecution and Defence witnesses is that the accused gave legitimate and

10     appropriate orders for treatment of detained members of the

11     28th Division.  Multiple witnesses, both Prosecution and Defence, talked

12     about how the accused foresaw their treatment as POWs and then their

13     exchange with the other side.  RM292 [Realtime transcript read in error

14     "RM229"] described how the accused spoke to POWs at Nova Kasaba and said:

15             "Prisoners do not need to be afraid because they would return to

16     their houses and be exchanged."

17             That's at transcript page 12659.  RM292 further testified that

18     the detainees applauded the accused.  That's on transcript page 12662.

19             JUDGE MOLOTO:  Mr. Ivetic, you're talking about RM292?

20             MR. IVETIC:  That's correct.

21             JUDGE MOLOTO:  Look at page 53, line 25 and make sure that that's

22     correct number.  It says "229."

23             MR. IVETIC:  I apologise, Your Honours, if I misspoke --

24             JUDGE MOLOTO:  No, no, I'm not saying it's your fault.  I'm just

25     saying check what is on the screen with what you want to say.

Page 44796

 1             MR. IVETIC:  Thank you, Your Honours.  To be clear, I'm talking

 2     about RM292.

 3             JUDGE MOLOTO:  Thank you.

 4             MR. IVETIC:  Notably, the witness did not identify any illegal

 5     orders of the accused as to the POWs.

 6             Another witness, Subotic, himself a military policeman, confirmed

 7     that at Nova Kasaba the accused told POWs that they would be exchanged

 8     and that they applauded him.  That's at transcript page 32826-32827.

 9     Subotic further confirmed that the accused said the POWs would be

10     transported to Bratunac, housed, fed, and transferred to civilian

11     authorities for the taking of information and to be exchanged; that's in

12     D926, paragraphs 29 through 30.  Then the express orders of the accused

13     to the military police present was to provide physical protection to the

14     POWs and as described by Subotic:

15             "And he told us, and told us strictly, to take care of the

16     prisoners, that some buses would be arriving within an hour, that the men

17     should sign their names, and that they would -- should all board the bus

18     and deliver it to the civilian police in Bratunac.  That is what I heard

19     and I saw this when General Mladic was present there at the stadium."

20             Transcript page 32826-32827.

21             According to the evidence, Subotic followed these legitimate

22     orders of the accused, providing water for detainees, and protecting the

23     same until handing them over to the civilian police, D926, paragraph 31.

24             Thus, we have evidence of express orders of the accused that run

25     counter to the commission of any killings or crimes.  There is also

Page 44797

 1     evidence that wounded persons present at this site were provided medical

 2     treatment and/or sent to the hospital, D926, paragraph 32 through 36.

 3     Such acts are consistent with the accused's words that these POWs would

 4     be treated properly and exchanged and are inconsistent with any plans to

 5     kill.  RM0346 was a POW at Nova Kasaba and he too confirms what Subotic

 6     and RM292 stated about the express words of the accused.  Specifically,

 7     RM0346 stated the accused said that they would go for lunch to Bratunac

 8     and would all later be exchanged.

 9             JUDGE FLUEGGE:  Are you referring to RM0346 or RM0364?

10             MR. IVETIC:  I have written down here in my notes 346 but I see

11     on the screen 364.  I can clarify that by saying I'm referring to

12     Exhibit P1118, page 9, and that should hopefully apply to only one

13     witness unless we have bigger problems.

14             JUDGE FLUEGGE:  Your team may be able to clarify it.

15             MR. IVETIC:  Probably.  It's RM0346.

16             RM253, likewise, was at Nova Kasaba and he reiterated hearing the

17     accused express:

18             "You do you not have to worry.  You will be exchanged and join

19     your families in Tuzla.  Now you will be transported by trucks to

20     Bratunac or Kravica, where you will spend the night and get some food."

21             And that is at T12532 and P1547, paragraph 20.

22             Witness Jovic -- Jovicic, the driver for MUP commander

23     Borovcanin, recalled the accused speaking to detainees of the

24     28th Division at Sandici meadows, at which time the accused also

25     specified that:

Page 44798

 1             "Transport of their women and children towards Kladanj and Tuzla

 2     was in progress and that they would be transported."

 3             There is no credible evidence linking General Mladic's presence

 4     to any of the alleged killing or execution sites or evidencing his

 5     contact with any POWs, apart from that which we have just discussed.  The

 6     above demonstrates the express orders of the accused that did not include

 7     any orders to kill.

 8             Momir Nikolic is the only witness who claimed to have a

 9     non-verbal hand gesture - just to be clear, he described it as thus:

10     [Indicates] - from the accused from Nikolic interpreted that hand gesture

11     as meaning that all would be killed.  But the preposterous nature of his

12     testimony and the dubious credibility of Nikolic are discussed in detail

13     in our final brief.  In fact, much of the Prosecution's evidence about

14     orders given to VRS personnel allegedly from the accused as to the

15     Srebrenica killings originate in one way or another from the dubious and

16     discredited Nikolic.  As such, it is a reasonable conclusion that

17     Nikolic, in fact, was promoting a false notion.  We cannot stress enough

18     that despite Momir Nikolic's self-serving testimony about some sort of

19     hand gesture, he testified that he never received a direct order from

20     anyone - that includes Mladic - to commit the killings in Srebrenica

21     which Nikolic went on to do.  That's D1228, page 3.

22             So again, Nikolic admits participating in killings, admits he

23     never got an order to do so.  The claim that a hand gesture like this one

24     [Indicates] could be interpreted as an order to kill, is not even made by

25     Momir Nikolic, but that doesn't stop this Prosecution from trying to use

Page 44799

 1     the same to invent a kill order that does not exist.  Such a position is

 2     preposterous.  Mladic could have been telling Nikolic:  Go away and leave

 3     me alone.  He could have been saying incredulously:  Weren't you just

 4     listening to what I told them?  He could have been saying:  I have no

 5     time for your stupid question.  Reasonable doubt exists.  In any event,

 6     OTP investigator Bruce Bursik made clear that the Prosecution could not

 7     corroborate that the purported encounter of Momir Nikolic and Mladic at

 8     the roadside ever even happened.  Nikolic's story of why he was there

 9     changes.  In one version he was ordered there by Colonel Blagojevic.  In

10     the other, he was ordered there by his own subordinate within the

11     military police.  Neither makes sense.  Plus, Mr. Bursik confirmed that

12     Mladic never mentioned the infamous hand gesture except --

13                           [Defence counsel confer]

14             MR. IVETIC:  Let me start again.

15             Mr. Bursik confirmed that Momir Nikolic never mentioned the

16     purported hand gesture by Mladic, except for the first time in that one

17     interview that the Prosecution decided not to record and that

18     Momir Nikolic was generally evasive and not forthcoming.  Your Honours,

19     however you look at the evidence of Momir Nikolic, reasonable doubt

20     creeps in.

21             Thus, the Prosecution's evidence, when taken at its highest,

22     demonstrates a set of facts where the explicit words of the accused

23     directed towards the detained POWs of the 28th Division that they would

24     be exchanged and reunited with their families, such words exclude the

25     possibility that he intended to kill them or knew of any plans to kill

Page 44800

 1     them.  Absent any explicit orders to the contrary, this evidence must be

 2     accepted as indicating the accused did not issue any orders nor intend

 3     the deaths of these individuals.

 4             Now, I want to just touch on some of the alleged murders.  We

 5     have dealt with each in detail in our brief, but let's highlight Kravica

 6     because that is why I am flabbergasted and at a loss for words at what

 7     the Prosecution claims.  Your Honours will recall that we heard

 8     evidence - and it was conceded by Mr. McCloskey the other day - that

 9     hours after Mladic had left the area and is en route to Belgrade, a bus

10     of detainees was being transported by the MUP to Kravica warehouse.  And

11     some Bosnian Muslim detainees overpowered the guards, grabbed the

12     weapons, and engaged in a fire-fight with the guards, killing one, and

13     then one guard burned his hand taking back a gun and the revolt was thus

14     stopped.  We have no way of knowing how many detainees died in the

15     fire-fight before that situation was ended.  And then we know and agree

16     that after this the MUP guards took revenge upon and killed countless

17     detainees.  The second set of killings can be nothing but a crime, but

18     not one that was ordered by anyone.

19             Now last week, I listened to Mr. McCloskey tell you and the

20     public that:

21             "It's the Prosecution case that this incident was an organised

22     execution pursuant to orders, with the burned hands incident happening

23     well after the executions had begun and it was a desperate response by a

24     Muslim man to the executions around him, not how they started."

25             That's at transcript page 44544.  Then he started telling

Page 44801

 1     everyone how this conclusion was "obvious" from analysing the evidence.

 2     That's the next page, 44545.  But no evidence has said that.

 3             If we go to the next page -- slide.

 4             Let's look at Erin Gallagher.  Ms. Gallagher is Mr. McCloskey's

 5     investigator for Kravica and Srebrenica, and God bless her for telling

 6     the truth.  She was an honest Prosecution member.  And when first asked

 7     in cross-examination:

 8             "From your investigative work, have you gained knowledge about an

 9     incident where a group of detained Bosnian Muslim men tried to overpower

10     the police guards that were guarding them, even talking the rifle of one

11     guard and killing him and where another guard was injured trying to get

12     that rifle back?  Are you aware of such a instance?

13             "A.  I am aware of a instance at the Kravica warehouse where one

14     Muslim man had grabbed the gun of -- it was -- had grabbed the gun and

15     Rade Cutoric had wrestled the gun away and shortly after that the men on

16     that side of the warehouse that were kept there were killed.

17             "Q.  And was it part of your investigation that prior to the

18     incident where the individual tried to overpower and take the gun from

19     this person, that no one had been shot at this location?

20             "A.  There was not a mass execution prior to this execution, not

21     that I'm aware of no."

22             Later on in re-direct, the Prosecution counsel Vanderpuye and

23     Ms. Gallagher admitted that there's not concrete information either way,

24     and we see the part of that transcript right there.  So apparently what

25     is obvious to Mr. McCloskey's colleagues, an investigator, is different

Page 44802

 1     than to him.  Reasonable doubt exists when more than one possible

 2     conclusion exists.  Now just to complete the picture, let's look at

 3     Mr. McCloskey' other investigator who spent considerable time

 4     investigating Kravica, Mr. Tomasz Blaszczyk.  And at transcript page

 5     12346 to 12347, he admitted that to him that it was still an open

 6     question which happened first.

 7             "A.  Well, Your Honours, our investigation revealed that this

 8     incident with -- related to one guard who was killed by detainee, it

 9     happened.  But when it happened, this is still open question for me, in

10     fact, whether it happened because -- before that there was another

11     killing take place and whether this incident, this particular incident,

12     kind of sparked, you know, just the following events, it's just the

13     killings of entire people, you know, which were kept in Kravica

14     warehouse."

15             Is it worrying that Prosecution counsel is molding the facts of

16     their case to fit their theory, ignoring their own staff members who came

17     as witnesses to give Your Honours evidence of these events?  Case closed

18     on Kravica.  You must acquit.

19             Now, as further indication of no prior intent for foul play,

20     RM274 described that the Kravica guards were consistently kind toward the

21     detainees in the beginning, referencing that cigarettes and water were

22     provided.  This is at P3098, page 24.  RM274 estimates that this peaceful

23     process continued 1.5 to 2 hours, P3098, page 19.  No ill-treatment is

24     alleged as to this time-period and RM274 reported that things only

25     changed after an incident that made the guards angry when there was

Page 44803

 1     shooting outside.  And RM274 likewise recalls a wounded guard was brought

 2     in, and only after that incident that the guards came in acting

 3     frightened and in a panic and started shooting detainees in the

 4     warehouse.  There's also evidence suggesting that prior to arriving, MUP

 5     Commander Borovcanin had no idea what was going on and upon seeing the

 6     bodies at Kravica said:

 7             "Oh my God, what is this?"

 8             That's transcript page 33729 to 33721, the testimony of his

 9     driver, Nedjo Jovicic.  Then Borovcanin went to go tell civilian

10     municipal leaders what had happened.  All of this, all of this leads to

11     the reasonable conclusion of the lack of any plan to kill these persons

12     and, rather, that an unfortunate act of revenge occurred when the

13     attempted breakout occurred and when guards were killed and wounded.

14     Mladic cannot be responsible for this under these facts.

15             I want to just briefly turn on Trnovo.

16             And the Prosecution admitted last week, talking about Trnovo:

17             "And the Skorpions, I'm not going to show you that awful video

18     but please take care here.  Sometimes, because that video is so clear and

19     the Muslims are so obviously from Srebrenica, we have not laid out the

20     facts and the details of that crime as much as we should have.  We have

21     now.  But this needs to be done to fully understand that this was part of

22     the murder operation, part of the JCE to eliminate."

23             Your Honours, pay attention to what Prosecution counsel just

24     said.  If they have conceded that they have not laid out the facts and

25     details as they should have, they have not met their burden.  Acquittal

Page 44804

 1     is warranted.

 2             I had not go through the other murder charges but urge you to

 3     heed that which we have analysed in our brief.  We believe as to every

 4     such one, there remains serious doubts and ambiguities and even

 5     contradictions from the Prosecution's evidence, such that reasonable

 6     doubt has not been removed and an acquittal is appropriate.

 7             And we also ask you to take note of the evidence as to

 8     Mr. Mladic's horrified reaction after returning from Belgrade because

 9     that demonstrates that he certainly did not order the killing of anyone.

10     The Defence has also set out in pages 869 to 873 of the final brief the

11     post factum matters that affected his ability to do anything after the

12     fact.

13             Now I would like to return to the alibi, the time-period when

14     General Mladic left Srebrenica and was in Belgrade.  First off, the

15     Prosecution has tried to point to Obradovic's generic testimony to

16     indicate that Mladic would not relinquish command unless gone for more

17     than seven days.  Your Honours, why do they ignore the sworn testimony of

18     their own witness, General Manojlo Milovanovic, who testified under oath

19     and without any qualms or reservations and did not shirk from affirming

20     that, when Mladic was gone - from the theatre or from the RS - he,

21     General Milovanovic, assumed command and was in charge of the VRS.  We

22     see that at transcript page 11751 and 16950.

23             And we also have to point out - if we can have the next slide -

24     that the evidence is that rather than being involved in killings or

25     killing sites, General Mladic is at a secret meeting in Dobanovci,

Page 44805

 1     Belgrade, 14 to 15 July 1995, meeting with these UN and European

 2     negotiators and Yugoslav President Slobodan Milosevic.  As part of this

 3     meeting as D1413 [sic] evidences, General Mladic entered into agreement

 4     with General Smith to allow ICRC access to the POWs detained at

 5     Srebrenica.  Now, common sense and logic dictate that from this

 6     agreement, we can conclude that General Mladic has no idea about any

 7     plans to kill the POWs of Srebrenica, because otherwise he would be

 8     stupid to enter into such agreement.  The Defence submits that this

 9     evidence leads to the reasonable conclusion that General Mladic honestly

10     believed that his orders to treat the detained members of the

11     28th Division as POWs until their release with the other side and that he

12     had no idea that others were killing said persons.

13             The document D1413 [sic] also identifies that Mladic wanted all

14     generals of opposing sides to meet, to finally do a complete cessation of

15     hostilities.  This is consistent with his words to detainees before he

16     left Bosnia, that soon they would be exchanged with the other side.

17     General Mladic had his mind set on a permanent and lasting peace, not on

18     revenge, nor atrocities.  Why is the Prosecution ignoring the evidence of

19     this meeting for which we have ample evidence while pushing their

20     mysterious meeting of 11 July which is nowhere in the evidence?  Because

21     this meeting in Dobanovci establishes reasonable doubt.  General Mladic's

22     orders to the POWs never changed and that proves that he did not have the

23     intent to kill them.  This was done by others, including avengers,

24     locals, and rogue members of the security organs.

25             Now, just a few more points relating to Srebrenica.  The bulk of

Page 44806

 1     the Prosecution case resolves around purported radio relay communication

 2     intercepts, which we have in detail analysed in our brief to demonstrate

 3     that pursuant to science, technology, and logic they could not be

 4     intercepted by the ABiH or other parties as alleged.  I would only add to

 5     that that RM275 is someone that the Prosecution brought to authenticate

 6     some of these intercepts.  However, their other witness, RM279, disavowed

 7     that RM275 could have been the drafter of the records in question.

 8     That's at transcript page 13557 to 13558.  Both RM279 and official

 9     records of the ABiH demonstrate that RM275 wasn't even working in the

10     interception unit during the time-period of the intercepts in question.

11     He started working there in 1996.  D316, D1463.

12             Accordingly, this raises significant and reasonable doubt as to

13     the authenticity of these intercepts.

14             We have also gone into great detail about the forensic evidence

15     of the mass graves in our final brief.  I will not belabour those points,

16     but we do want to highlight some key points.  First, the evidence

17     demonstrates that in some of these mass graves attributed to July 1995,

18     human remains were found in ZOV body-bags.  P1737, P1983, P1448, P1987.

19             We heard from Dr. Stankovic that he created and used these bags

20     for remains in 1992 and that the supply was used up after 1993,

21     transcript page 43277-43278.  That would raise significant reasonable

22     doubt that bodies in the mass graves could be inclusive of persons who

23     died in the years prior, whose remains were could mingled in the graves,

24     and indeed that conclusion is consistent with evidence presented by

25     Prosecution witnesses that Momir Nikolic, in fact, robbed graves from the

Page 44807

 1     years prior at the same time he robbed the Srebrenica graves.  We can see

 2     that at transcript page 11485 to 11486.  This set of facts thus calls

 3     into question the evidence of Srebrenica victims and calls for an

 4     acquittal.

 5             JUDGE ORIE:  Mr. Ivetic, before you continue could you check the

 6     reference to D1413.

 7             MR. IVETIC:  Yes, that's the meeting at Dobanovci.

 8             JUDGE ORIE:  For me, it's a witness statement by a witness.

 9             MR. IVETIC:  I'll check on that.  It should be a coded cable from

10     Mr. Akashi to Mr. Annan.

11             JUDGE ORIE:  At least in my e-court it's not.

12             MR. IVETIC:  I will check that, Your Honours.

13             JUDGE ORIE:  Please.

14             MR. IVETIC:  Thank you for bringing that to my attention.

15             In the case we have been talking for a long time about combat

16     casualties of the 28th Division being included as victims of execution by

17     the Prosecution.  During our proceedings, however, no fewer than four

18     forensic professionals gave their expert opinions for what the

19     Prosecution calls blindfolds, evidencing executions, that they could

20     actually be bandanas worn by fighters that fell over they eyes as the

21     body and particularly the ears decayed.  The late Dr. Dunjic at D1448 and

22     D1449; Dr. Stankovic, transcript page 43463; Dr. Chris Lawrence,

23     transcript page 14802-14804; and Mr. Pecerelli at 18442 and 18443.

24     Your Honour, Judge Orie, even said this was common knowledge, transcript

25     page 14803 [Realtime transcript read in error "14083"].  The Prosecution

Page 44808

 1     has scoffed at such a suggestion, but the Prosecution's evidence

 2     indicates that ligatures and blindfolds found in Srebrenica mass graves,

 3     including loose in the grave, were sometimes pink or red in colour and

 4     brown with flowers.  P1735, P1740.

 5             And now let's look here at some of the photographic evidence of

 6     ABiH fighters with bandanas and ribbons.  We have the extracts from the

 7     videos that are in e-court as D339 and D340 respectfully, and here the

 8     last two on the slide are most instructive.  These are actual images of

 9     actual ABiH fighters from the Srebrenica column when they arrived in

10     Tuzla.  And so, Your Honours, reasonable doubt is raised that some

11     victims of execution are actually combat casualties buried with bandana

12     and identifying ribbons, not blindfolds or ligatures.

13             Your Honours, no matter where one picks to investigate more

14     fully, the Srebrenica evidence falls apart as to General Mladic.  The

15     Prosecution is relying on you to fill in the blanks in the evidence with

16     the story you would expect to hear.  They did not do their job and major

17     gaps remain.  Reasonable doubt exists; therefore, the only appropriate

18     and fair remedy is to enter an acquittal of General Mladic.

19             I next move to Count 11, hostage taking.

20             UN personnel actively participated in the war.  There was thus a

21     legitimate basis to detain.  The Prosecution provided a flat narrative

22     driven by criminal intent without the full picture.  If we can have the

23     first slide.

24             Witness Dragicevic's statement described the legitimate detention

25     of UN personnel:

Page 44809

 1             "Specific elements of UNPROFOR forces were actively involved in

 2     guiding the NATO aviation and rapid intervention forces towards Serbian

 3     targets.  Removing them from their positions eliminated the possibility

 4     of them guiding the air force and artillery.  This was, in essence, a

 5     protective and defence measures.

 6             It bears emphasising that the human shields allegation of

 7     hostage-taking is primarily only 10 to 20 detainees over one or two days.

 8     While UN detainees were held at Serb locations, the precise locations

 9     were never conveyed to deter anyone.  Count 11 fails because of, one, a

10     defective indictment; and two, the evidence fails to prove each element.

11     Count 11 is defective for three reasons.

12             First, the Prosecution imported the Common Article 3 language,

13     non-international armed conflicts, to charge a situation involving

14     internationalised conflict.  We can go to the next slide.  The

15     Prosecution confused the determination that Common Article 3 may be

16     applicable to non-international and international armed conflicts, as

17     relieving the Prosecution of their duty to charge the correct language.

18     That confusion is evident at transcript page 44323.

19             How is charging the language alleging a non-international

20     conflict proper in the situation of an internationalised armed conflict?

21     No conviction against the accused can be entered when material facts are

22     omitted.  We get that from the Karadzic case, the decision on the

23     accused's motion for relief for defects in the indictment, 30

24     September 2014, paragraph 15.  How can a Chamber find an international

25     armed conflict when it is not pleaded?

Page 44810

 1             Moreover, abandoning Common Article 3's exclusive application to

 2     non-international conflicts undermines customary law.

 3             Second, the Prosecution's failure to notify about material facts.

 4     While Common Article 3 may apply to international and non-international

 5     armed conflicts, this does not alleviate the Prosecution of pleading

 6     their case.  Importing Common Article 3 failed to specify any

 7     internationalised chapeau, a material fact.  The Prosecution has not

 8     cured this by providing "timely, clear, and consistent information

 9     detailing the factual basis," as was required in the Karadzic case on the

10     same decision we mentioned, paragraph 15.  Notice of "all IHL" is

11     insufficient and prejudice the Defence.

12             Third, if the character of the conflict is irrelevant as to

13     Common Article 3 as Karadzic appeal decision implies, that's Karadzic

14     decision on appeal of Trial Chamber's decision on preliminary motion to

15     dismiss Count 11 of the indictment, 9 July 1992, paragraph 25, this

16     improperly lowers the Prosecution burden.  Alleviating proof of this

17     element undermines a fair trial.  It enables the Prosecution to more

18     easily prove the alleged crime; and therefore, Count 11 is defective.

19             Are we at the time for the break, Your Honours?

20             JUDGE ORIE:  Yes, we are at the time for the break.  But before

21     we take the break, I think you referred to me of a matter of common

22     knowledge at page -- let me check that.

23             MR. IVETIC:  Should have been 14803, according to my notes.

24             JUDGE ORIE:  14803.  Let's just check here.  I think perhaps

25     something else was recorded.

Page 44811

 1             Yes, you said 14083, or at least that's how it is transcribed,

 2     and couldn't find it there, but it's now explained.

 3             We'll take a break, and we'll resume at 25 minutes to 2.00.  Are

 4     you on schedule, Mr. Ivetic?  Because otherwise we might have to take

 5     measures.

 6             MR. IVETIC:  I have caught up some time but I'm still behind, and

 7     it looks like I'm probably behind at least 20, 25 minutes.

 8             JUDGE ORIE:  Yes, then you haven't caught up that much because

 9     yesterday it was, I think, 15 to 20 minutes, so you lost more time.

10             Let me just consult with my colleagues.

11                           [Trial Chamber confers]

12             JUDGE ORIE:  We'll ask Mr. Registrar to find out whether it would

13     be possible to grant you 20 extra minutes and we would then go on until

14     25 minutes to 3.00, if it's feasible.

15             We take a break now.  In order not to lose further time, we'll

16     resume at 25 minutes to 2.00.

17                           --- Recess taken at 1.17 p.m.

18                           --- On resuming at 1.36 p.m.

19             JUDGE ORIE:  I hereby inform the parties that 20 minutes extra

20     causes no major problems for all those who are supporting us.

21             Further, I would invite the parties to see whether they can agree

22     on Thursday, whether they would have two times one and a half hour in one

23     stretch or whether we still would stick to the one hour and then a break

24     and then another half an hour.

25             I leave that to the parties and, of course, the Defence will

Page 44812

 1     consider the position of Mr. Mladic in this respect.

 2             Please proceed.

 3             MR. IVETIC:  Thank you, Your Honours.  Before I proceed, I'd like

 4     to indeed correct what Your Honour brought to my attention when I was

 5     referring to D1413 in relation to the meeting in Dobanovci, I should have

 6     been referring to D410 in evidence and that is entirely my error and I

 7     thank Your Honours for bringing to my attention.

 8             JUDGE ORIE:  Please proceed.

 9             MR. IVETIC:  Should this Chamber find that Count 11 is not

10     defective, Count 11 still fails on the merits as set out in section 6 of

11     our final brief.  First I will address self-defence and unjustified NATO

12     bombings.  Then I will address how Count 11 fails for four reasons:

13     First, a legitimate basis to detain existed; second, improper treatment

14     was perpetrated by paramilitaries; three, VRS ordered compliance with

15     Geneva Conventions; and four, no reliable evidence proves a JCE.

16             Contrary to the Prosecution's portrayal of justified NATO

17     bombings, the NATO attacks that sparked prisoner of war detention sprung

18     from an unfair situation, where the UN had previously agreed to allow

19     weapons withdrawal from weapon collection points in self-defence and then

20     went back on that agreement.

21             If we can have the next slide.

22             First, around 14 February 1994, the protocol between UNPROFOR and

23     the VRS delineated that "the BSA reserves the right to implement adequate

24     measures of self-defence."  D112, page 4.

25             GRM097 confirmed that weapons collection points were established

Page 44813

 1     around Sarajevo "so that if attacked ... they could then defend

 2     themselves."  Transcript page 40119.

 3             Importantly, if attacked the party that was attacked therefore

 4     was no longer bound by the demilitarised aspect of that agreement, again

 5     40119.

 6             The protocol in question demonstrates UN involved and uses the

 7     term "BSA" which is UN lingo.  And appears on UNPROFOR Command fax

 8     letterhead.  As of August 1994, BiH activity had already prompted the VRS

 9     to withdraw their weapons, D112, para 1 to 3.  On 5 September 1994,

10     UNPROFOR came off the original agreement, including the right to

11     self-defence, saying that they "did not endorse this position."  That's

12     at P631, page 1.

13             The Bosnian Muslim side was equally restricted but, around

14     March 1994, the Serb side had already reported to UNPROFOR the repeated

15     violations by the Muslim side; D111 is evidence of that.  UNPROFOR did

16     not conduct airstrikes against Muslim forces for violations because of

17     American and NATO reluctance to act against the ABiH.  We heard about

18     that from GRM097, GRM037, General Rose, and Mr. Harland.

19             In Witness Dragicevic's words, UNPROFOR had sided with the

20     Muslims, D554, paragraph 31.  Therefore, the Serb side withdrew weapons

21     for self-defence.  The UN ignored this legitimate purpose, bombing them

22     instead.

23             Turning to the legitimate basis to detain.

24             Serb forces ultimately did not consider UNPROFOR to be neutral

25     but rather combatants.  GRM037 told us about that.  It is necessary to

Page 44814

 1     show that the violation was committed against persons who were not

 2     directly involved in the hostilities.  That's what the Blaskic Trial

 3     Judgement tells us at paragraph 177.  Thus, the legitimate basis to

 4     detain UN combatants excludes UN POWs from Common Article 3.  Equally

 5     important, this legitimate detention substantiates that the VRS detained

 6     personnel to prevent more bombings.

 7             Evidence substantiates a reasonable alternative, that UN

 8     personnel were detained as combatants as they were exchanging gun-fire,

 9     P591; holding territory, D554; enlisting NATO air-strikes, P2558; guiding

10     pilots to Serb targets, P6644; collecting intelligence against, Serbs

11     transcript 39023; smuggling weapons to the enemy forces against the VRS,

12     D535; and even taking VRS soldiers prisoner, D1586, P2558.

13             Around 27 May 1995, RM401 testified about the UN's armed

14     re-taking of a bridge assisted by ABiH "support fire."  Example, that

15     means the ABiH was shooting to cover and assist UN personnel; that's at

16     transcript page 18260.  This substantiates that VRS could have reasonably

17     perceived the UN and the ABiH as co-operating, that the UN were

18     combatants.

19             Around 28 May 1995, in reaction to how the UN had taken detained

20     Serb soldiers, this memo declared that:

21             "UN has not the legal right to hold prisoners of war."

22             It describes that:

23             "The credibility of UN regarding international humanitarian law

24     is also deranged if such a practice is being implemented."

25             Again, that's D1586.

Page 44815

 1             Not one occasion occurred where UNPROFOR requested and launched

 2     NATO to bomb the Bosnian Muslim side.  On the other hand, UN personnel

 3     recorded the VRS locations and some trained as airplane spotters acted in

 4     that role.  For targeting, UN ground personnel communicated to the NATO

 5     pilot directly; General Smith told us about that.  During the testimony

 6     of UNPROFOR General Nicolai, Judge Orie asked:

 7             "Had UNPROFOR provided assistance to NATO to define those targets

 8     on Bosnian Serb territory? "

 9             The response was:

10             "Yes.  The targets were determined at UNPROFOR headquarters in

11     Sarajevo, and that information was subsequently relaid to NATO with a

12     request to fire there."

13             UNPROFOR endorsed the large-scale NATO air-strikes of May 1995,

14     D1468, page 9.  The Bosnian Serb leadership considered that the UN had

15     become combatants.  General Smiths' now declassified correspondence to

16     the US -- not to his UN superiors, but to the US, reports on 27 May 1995

17     that "I've broken the machine."  That's D1462.

18             On 28 May 1995, another declassified cable details Smith

19     advocating that the only options are to become unsustainably weak or to

20     wage was, D452.  In his ICTY statement, General Smith conceded:

21             "We were never peacekeepers ... because there was no peace to

22     keep" and "we were bombing one party."

23             Segers also reported a Pakistani UNPROFOR colonel taking a

24     Bosnian Muslim side when an UNMO reported that the Bosnian Muslims were

25     shelling their own village, to blame the Serb.  This colonel responded:

Page 44816

 1     "You are liars," D1465, page 11.

 2             Improper treatment was perpetrated by paramilitaries as in our

 3     final brief, paragraph 3349 to 3386.  Importantly, VRS officer Vojvodic

 4     was tasked by General Tolimir with taking over and securing UN detainees.

 5     Vojvodic took over as the primary guard and no one was maltreated, D1224,

 6     paragraph 9.  The Red Cross visited them in June 1995 without complaints,

 7     D1227.  As to the bridge, RM401 first described captors as Bosnian Serb

 8     forces but clarified that the majority were militia men, P2537.  This

 9     meant:

10             "People who take up arms, who put uniforms that they find on the

11     ground and they operate with or without uniforms and they take part in

12     fighting next to the regular army."

13             That's what RM401 said at 18238 to 18239.  RM401 was reassured of

14     being handed over to the Serbian regular army, P2537.  Once in VRS

15     custody, detainees were treated according to the Geneva Conventions which

16     were read aloud, transcript page 18263, again RM401.

17             VRS orders substantiate the intent of the VRS to treat UN

18     personnel as POWs, including IHL brochures.  One VRS order on 27 May 1995

19     states:

20             "Make sure that UNPROFOR are treated properly as prisoners of

21     war," P789, paragraph 4.

22             Colonel Sehovac detained POWs, stressing that:

23             "We did not mistreat them ... we abided by the

24     Geneva Conventions."

25             Transcript page 24052.

Page 44817

 1             Around 26 May 1995, as the French contingent had received orders

 2     not to surrender, the VRS and French agreed for the VRS to shoot outside

 3     and for the French to then surrender, P6717 and transcript page 25215 to

 4     25217.  From this, it is clear that UN personnel and the VRS co-operated

 5     to peacefully resolve the issues.  No one was ever endangered.

 6             Evidence substantiates proper POW treatment.  Witness Cornish

 7     testified that detainees used the radio to report back hourly.  He also

 8     said that they were allowed to wash their clothes.  Witness Vojvodic

 9     confirmed that the detainees, the POWs, wrote letters and received the

10     Red Cross.  Several witnesses, including General Riley and Colonels

11     Radojcic and Sehovac even testified that UN personnel held as POWs were

12     even permitted to keep their weapons.  No reliable evidence provides a

13     plan or agreement involving the accused, literally nothing.  In an

14     alleged intercept from 28 May 1995 between General Smith and

15     General Mladic, that's P790, Mladic claimed the hostages were held by the

16     VRS but only to posture.  First, paramilitaries committed the

17     impermissible acts against a few UN personnel; secondly, General Mladic

18     learned about this like everyone else on the TV; third, General Mladic

19     orders his troops via General Tolimir and via Mr. Vojvodic to take over

20     and detain these persons as POWs; and then, fourth, General Mladic speaks

21     to Smith, tacitly taking responsibility for bad acts to try to gain an

22     upper hand; fifth, the General's bluff does not work but no more POWs are

23     put at the radio antennas or in harm's way after he has this discussion

24     with General Smith.  So there are no acts that could be tied to a

25     criminal nature from the words that General Mladic uttered in this

Page 44818

 1     conversation.

 2             Therefore, Count 11 fails because the indictment is defective and

 3     even based on the evidence it cannot be said that the only conclusion is

 4     that the VRS under Mladic's orders took UN personnel as hostages in order

 5     to deter NATO strikes.  Instead, the evidence demonstrates legitimate

 6     detention of combatant POWs.  They were treated in accord with the

 7     Geneva Conventions.  No conviction can be arise for Count 11.

 8             I will now move to the topic of mitigation and sentencing

 9     submissions.

10             I hope that we have been abundantly clear in our final brief,

11     particularly section VII of the same, pages 899 onward; as well as in the

12     past days in our oral submissions, that we believe the only fair and just

13     outcome is an acquittal, due to the fact that the Prosecution has failed

14     to meet its burden of proof as to General Ratko Mladic.  However, as

15     Your Honours know but the public may not know, we are required by the

16     particular Rules of the Tribunal to make these submissions now.  I had

17     not repeat too much submissions already made in our brief.  The

18     Prosecution's comments the other day are inappropriate.  Everybody

19     deserves mitigation if it exists under the evidence, especially

20     General Mladic.

21             ICTY jurisprudence states that expressions of remorse can be

22     recognised as a mitigating factor if the remorse is real and sincere.

23     Indeed prior ICTY cases like the Oric trial judgement have considered

24     remorse even where the accused made no statement but where throughout the

25     trial the counsel expressed it on his behalf, that's at paragraph 752.

Page 44819

 1     In the instant case, counsel have repeatedly made expressions on behalf

 2     of and at the instruction of the accused.  Some illustrative examples

 3     include in relation to witnesses RM084, RM079, RM010, RM115, and RM291.

 4             There is likewise evidence of Mladic's own statements that

 5     demonstrate remorse.  We highlight one such instances introduced by the

 6     Prosecution through Commander Rupert Smith.  Mladic is recorded in

 7     relation to Markale to have said:

 8             "Our side does not have any high-impact projectiles of this kind,

 9     one of which could hurt so many people, and I'm very sorry, er for the

10     misfortune which befell all these people, be they killed or wounded."

11             That's P789.

12             Another instance is the evidence that indicates he only found out

13     about some killings having taken place in Srebrenica after the fact and

14     was visibly upset upon learning of the same.  Witness Simic talked about

15     that at transcript page 32589.  After finding out, Mladic was visibly

16     distraught and worried and condemned the acts as being horrible.

17     Witness Todic talked about that, D798, paragraph 28.  He further stated

18     that whoever is responsible for those acts must be crazy.  The same

19     citation, D798, paragraph 28.

20             If the Prosecution promotes the notebooks of the accused as

21     authentic, then they must also accept that these purport to show the

22     accused advocating a commission to be formed on the basis of equal

23     parity.  To really investigate all the deaths and killings around

24     Srebrenica, P348, page 47.

25             Next I move to the sentencing provisions of the SFRY, which

Page 44820

 1     prohibit any sentence exceeding 15 years or 20 years for the most

 2     atrocious crimes.  Although this Tribunal has decried that it is not

 3     bound by the SFRY sentencing practices, this Tribunal is bound by

 4     international law, i.e., it must apply the law that was in force at the

 5     time of the commission of the crimes nullen crimen sine lege, nullum

 6     poena sine lege.  Consequently, any sentence that would exceed the

 7     parameters of the 1976 Criminal Code of the SFRY would be a violation of

 8     the principle of legality and of the prohibition of the retroactive

 9     application of the law.  Similarly, the European Court of Human Rights

10     has recently affirmed this same rule as to Bosnia-Herzegovina; it should

11     apply to this Tribunal as well.

12             The law in force at the time of the commission of the crimes

13     alleged was the 1976 Criminal Code which remained authoritative until

14     1998 in the BiH and 2000 in the Republika Srpska.  It dictates that war

15     crimes are to be punished by imprisonment that falls within five to 15

16     years or by the death penalty for the most serious crimes.  Nevertheless,

17     the death penalty was abolished by the Dayton Agreement and substituted

18     by the possibility to impose a 20-year term.

19             The prohibition on retroactivity inherently implies a prohibition

20     on the retroactive application of lex gravior, i.e., of the most -- of

21     the more severe penalty.  Consequently, it is unlawful to impose a

22     heavier penalty which did not exist at the material time of the

23     commission of the crimes.  It is a widely recognised principle of

24     international law that whenever a crime is punishable under two

25     successive provisions, one of them being more lenient, the lesser should

Page 44821

 1     be applied as per the favor libertatis principle.  I refer you to the

 2     Maktouf and Damjanovic versus BiH decision of the European Court of Human

 3     Rights, page 11.  Likewise, from that same decision, paragraph -- page

 4     46, the prohibition on retroactivity is part of customary international

 5     law and a preemptory norm of international law, therefore permitting no

 6     derogations.

 7             In dealing with the very same issue, the European Court of Human

 8     Rights deemed the application of the 2003 BiH Criminal Code instead of

 9     the 1976 SFRY code to be unlawful and a breach of the applicants' rights,

10     page 32 of the Maktouf-Damjanovic decision.  In sum, the application by

11     the Chamber of a penalty not envisioned under the applicable law at the

12     time would be a violation of the customary international law norm

13     prohibiting the retroactive application of the law.  Consequently, the

14     Chamber is under an obligation to ensure that the penalty falls within

15     the five to 15 years parameters or 20 years for the most serious crimes

16     that would otherwise have been punished by the death penalty.  Not doing

17     so would mean that the Tribunal is acting ultra vires.  What message

18     would this Tribunal be sending the world if it persisted in sentencing

19     practices that the European Court of Human Rights has now forbidden,

20     forbidden domestic jurisdictions from pursuing as unjust?  We submit that

21     the very legacy and reputation of the ICTY is called into question if it

22     opposes and acts in violation of the standard proclaimed by the European

23     Court of Human Rights.

24             I now turn to Prosecution's assertions as to aggravating

25     circumstances.  The Prosecution has failed to prove beyond reasonable

Page 44822

 1     doubt an abuse of the accused's position of authority.  In any event, a

 2     high-ranking position of authority does not, per se, deserve a more

 3     severe sentence; and in any event, the accused did not abuse his position

 4     of authority in any manner whatsoever.

 5             The Prosecution repeatedly emphasised that there was a clear

 6     hierarchy within the VRS within which orders had to be respected.

 7     Nevertheless, this clear hierarchy is irrelevant in respect to the

 8     accused's liability, since no order that could connect him to the crimes

 9     has been put forth by the Prosecution.  Again, as to Srebrenica,

10     Prosecution excerpt Richard Butler stated that he had not come across any

11     orders from the accused ordering the commission of the crimes.  It is

12     therefore unreasonable to say in light of the evidence that the accused

13     abused his authority for criminal purposes.  In any event, this Chamber

14     should reject this ground as an aggravating factor because it has not

15     been raised by the Prosecution in the indictment and, as such, it is not

16     meeting the conditions for aggravating factors.

17             The Prosecution has argued the special vulnerability of victims

18     as aggravating.  Such an approach is not allowed to be taken into account

19     twice due to the prohibition of double counting, insofar as it has

20     already been subsumed in the overall gravity of the crimes.  Look to the

21     Kordic and Cerkez appeals judgement, paragraph 1089; and the Stakic

22     appeals judgement, paragraph 413; and the Galic appeals judgement,

23     paragraph 408.  In its submissions at paragraph 1743 of their final

24     brief, the Prosecution can only put forward anecdotal evidence which

25     bears no legal significant and has failed to bring forth any appropriate

Page 44823

 1     expert reports or studies.

 2             The Prosecution likewise maintains that the accused should get

 3     the maximum sentence solely because he should get a higher sentence than

 4     subordinates.  This is completely at odds with and in compatible with the

 5     principle of individualisation of the penalty and legal certainty.  Such

 6     a position by the Prosecution represents a conviction by extension

 7     through collective guilt.  Again, it goes back to the desire to pump of

 8     Ratko Mladic to superhuman proportions to make him the symbolic

 9     sacrificial lamb for the perceived guilt of all Serbs as perceived and

10     assessed by the Prosecution.

11             Another Prosecution claim made at paragraph 1741 of their final

12     brief is that the accused took a dominant role in the commission of the

13     crimes by not respecting IHL; but this is directly refuted by the many

14     orders in evidence from the accused commanding the exact opposite.

15     Further, the Prosecution claim at paragraph 1737 of their final brief

16     that Mladic's subordinates summarily executed thousands in Srebrenica,

17     but this is irrelevant absent the required nexus.  It is also

18     impermissible double counting, in that this is the subsumed in the crime

19     alleged.

20             Now I would ask that we move in private session.

21             JUDGE ORIE:  We move into private session.

22                           [Private session]

23   (redacted)

24   (redacted)

25   (redacted)

Page 44824











11 Pages 44824-44826 redacted. Private session.















Page 44827

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16                           [Open session]

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

18             JUDGE ORIE:  Thank you, Mr. Registrar.

19             MR. IVETIC:  From Mr. Darko Mladic's statement, we see that the

20     accused raised him with a spirit of helping everyone regardless of

21     ethnicity.  The most important thing was to be a good human being,

22     paragraph 8, and Mr. Darko Mladic details various good deeds performed by

23     his father to assist non-Serb civilians, both during the war and outside

24     of the war.  We consider that to be evidence in mitigation.

25             In summation, we ask you to reject the Prosecution's efforts to

Page 44828

 1     apply collective guilt, to build up Mr. Mladic to superhuman proportions,

 2     and their call for you to act contrary to various legal maxims in

 3     imposing a life sentence.  The appropriate standard and legal principles

 4     dictate that any sentence should be limited and minimum in nature, due to

 5     the mitigating and other circumstances enumerated.

 6             Your Honours, for all the reasons stated these past three days,

 7     the Defence would submit that the Prosecution has failed to meet the

 8     requisite burden of proof as to any of the counts and charges in the

 9     indictment.  It simply did not present the evidence necessary to prove

10     its case and support the allegations it made in the indictment.  We thus

11     feel that only just verdict would be acquittal.

12             Now I would like to take a few moments to address some additional

13     words.

14             Your Honours, today my client speaks through me as his attorney,

15     and it is his words whose burden that I now turn to to speak to you.  It

16     is a heavy burden to speak for a man who has been so completely and

17     deliberately misunderstood, who has had to listen to vicious allegations

18     against himself day after day.  It is a difficult position that not many

19     of us could endure quietly.  At times, his emotions have gotten to him,

20     and, and as you know from the medical reports, his medical condition is

21     such that it is not his fault, it is a medical condition that contributes

22     to emotional outbursts.  With this Tribunal unable to accommodate his

23     medical condition, do not hold it against my client that you expelled him

24     from court in the past.

25             But more importantly, try to see things from his perspective.

Page 44829

 1     And to prepare for today, I tasked myself with the same task, and to do

 2     so, I looked at what my client said in the Karadzic proceedings on

 3     28 May 2014 when he was summoned by the power of subpoena to essentially

 4     be forced to potentially be a witness against his own interests in a case

 5     under the same indictment.  Therein he stated, and now I quote from that

 6     transcript:

 7             "THE WITNESS: [Interpretation] Mr. Kwon, ladies and gentlemen, as

 8     for this Hague Tribunal, this Court, I cannot stand it, and I do not

 9     recognise it, and I cannot testify before it.  I cannot take an oath

10     because this is pressure against me as a person, against my health,

11     against my people.  These continue to be sanctions, and things have

12     really been brought do an end.

13             "I kindly request that you give me the following possibility.

14     With all due respect to President Radovan Karadzic and the efforts that

15     he made and has made for the salvation of our people, and I contributed

16     somewhat to doing some good, I wouldn't want this trial to fail, so I

17     would like to ask you, if you have the possibility and the time, to hear

18     me out.  I wrote seven pages last night before Saint Sava's Day.  Today

19     is Saint Sava's Day.  So if you don't mind, I would like to read that

20     out.  And after that, I can take an oath.

21             "I do not recognise this Hague Court.  It is a NATO creation.  It

22     is a Satanic court, not a court of justice, and it is trying us because

23     we are Serbs, because we protect our people from you."

24             And then Judge Kwon said:

25             "Mr. Mladic, I am cutting you off.  Please be seated.  I will

Page 44830

 1     consult my colleagues."

 2             Mr. Kwon then said --

 3             JUDGE MOLOTO:  [Previous translation continues] ... did you say

 4     "The Hague court" or "the hate court."

 5             MR. IVETIC:  The Hague court, with a G.

 6             JUDGE MOLOTO:  Thank you.

 7             MR. IVETIC:  "Judge Kwon:  Mr. Mladic, as you know, we have our

 8     rules in which our proceedings should proceed.  So I would recommend you,

 9     again, to take the oath ... answer the question, if you will ..."  and

10     the questions posed Mr. Karadzic.

11             And then there was a discussion again as to the rules of the

12     procedure and then my client finally said:

13             "THE WITNESS: [Interpretation] Mr. Kwon, you are considerably

14     younger than I am.  You are exerting pressure against me for no reason

15     whatsoever.  I'm not afraid of anyone but God.  My conscience is clear

16     with regard to all matters.

17             "Your subpoenas and your platitudes at The Hague Tribunal and

18     your false indictments, I don't care one bit about any of that.  I don't

19     want to tire these people over there, and all of you.  I am going to make

20     this statement but I do not recognise your court, The Hague Tribunal.  It

21     does not exist for me."

22             Now, that is what my client said, and I can tell you that he

23     believed every word the day that he uttered them.  For him, that was the

24     truth.  And I have to ask you:  Can we really blame him if his view of

25     this Tribunal is so negative if it is based on how he has felt -- based

Page 44831

 1     upon how he feels he has been treated since coming here?  I want you to

 2     appreciate where he is coming from and in rendering your verdict and

 3     judgement to try your best to prove him wrong, because I have been unable

 4     to come up with arguments to convince him otherwise, though I have tried.

 5     And can you really blame my client for having such a negative view?

 6             If we can have the next slide.

 7             This is the motto that hangs in the lobby of the Tribunal and it

 8     shows no respect nor acknowledgement for the presumption of innocence nor

 9     the protection of the rights of the accused.  It just says:  "Bringing

10     war criminals to justice and justice to victims."

11             Can you really blame my client for having a negative view, given

12     that you ejected him at the time of the Initial Appearance from merely

13     trying to invoke his right to waive reading of the indictment, a right

14     all my prior clients enjoyed and exercised.  Instead, you kicked him out

15     and read the indictment anyway.  And the next accused who was arrested,

16     Mr. Hadzic, he simply asked the Court not to read the indictment and this

17     was complied with.  Can you really blame my client from being leary of

18     the fact that two out of the three Judges have made affirmative findings

19     of guilt against him?  You, Judge Orie in the Galic case; and you,

20     Judge Fluegge, in Tolimir.  Can you blame him for being skeptical about

21     these proceedings and his rights being protected given that both the

22     president of the MICT who made a public statement to the victims of

23     Srebrenica that Karadzic and Mladic will be brought to justice and the

24     ICTY president who made affirmative findings of guilt in the Popovic case

25     against him?  Can you really blame my client for being afraid of

Page 44832

 1     injustice, given that the Karadzic case also made affirmative findings of

 2     guilt in the Judgement against him?  And then Your Honours brought over

 3     the helpers from that case to draft this Judgement, which you have

 4     recently acknowledged might already be in the process of being written.

 5     Can you really blame my client when the Appeals Chamber has already in

 6     the Popovic appeal again made multiple findings of guilt against him in

 7     another case where he could not defend himself?  Can you blame him in

 8     this case where the Prosecution was allowed to eavesdrop on his

 9     communications with counsel and thus break the attorney/client privilege?

10             Your Honours, you have to understand and appreciate why my client

11     does not trust you.  And now your job is to look at all the evidence, and

12     I hope that you will do so and take the opportunity to do what I cannot

13     do, which is to convince my client that this Tribunal is fair and is just

14     and that you will fairly appraise the evidence and not bow to Prosecution

15     arguments or political pressure, and you will make sure that the highest

16     standard of the burden of proof pyramid is applied.  I hope that you do,

17     and I hope that you prove my client wrong, and in doing so hopefully you

18     will enlighten those of them -- those persons out there in the public,

19     out there, who might feel the same way my client does.  An acquittal

20     would prove my client wrong and would send a strong and enduring message

21     as to the legacy of this Tribunal as one of justice.  And I for one

22     sincerely hope you choose that path.

23             Lastly, we heard Mr. McCloskey read a poem or letter from the

24     American Civil War last week.  I don't have anything like that and, in

25     any event, I'm not sure if that is relevant to our proceedings.

Page 44833

 1     General Mladic has asked me to leave you with something more relevant and

 2     meaningful.  We have been speaking over the last four years about very

 3     specific issues and incidents, and it is very easy in a case like this to

 4     lose sight of the bigger picture.  War is ugly.  And in the end, its

 5     violence does not discriminate.  General Mladic is a military man, but he

 6     watched his country descend into chaos and tear itself apart.  It has

 7     shaken him profoundly and in ways that this Court can never begin to

 8     understand.  He therefore has just one request.  He would ask that we

 9     take one minute of silence to remember and commemorate all the victims of

10     the senseless war in Bosnia-Herzegovina, a war that I might add he

11     neither started nor prolonged.  And when I say "all victims,"

12     General Mladic wishes me to specify that he and the Defence team

13     considers every life lost in the war, every Bosniak, Serb, Croat, Roma,

14     Albanian, every man, woman and child a tragedy, and this list of victims

15     includes the 1300 Serbs of the Srebrenica area who lost their lives to

16     Naser Oric 's horrific violence and whose voice has not often been heard

17     in this place.  May their memory be eternal and may mankind have learned

18     from their lessons because today we sorely need them.

19             And that is all that General Mladic wished me to leave you with.

20     So I leave it in your hands, Your Honours, if we will have the moment of

21     silence or not.

22             I have no further submissions.  Thank you.

23             JUDGE ORIE:  Thank you, Mr. Ivetic.  The request you passed on

24     from Mr. Mladic is denied.  It doesn't fall within the scope of our task.

25             And we will adjourn for the day.  We will resume on Thursday, the

Page 44834

 1     15th of December.  And could I hear from the parties whether you have

 2     reached agreement to have it two times one and a half hour, or whether it

 3     would be three sessions, split up the middle session.

 4             MR. IVETIC:  From the Defence side, we have no problem with the

 5     proposed one and a half hour, then a break, and then one and a half hour

 6     sitting.

 7             JUDGE ORIE:  We didn't propose anything, but if that's what the

 8     parties prefer and if you have no problems, then we will head for two

 9     sessions of one and a half hour.

10             Therefore, we'll adjourn for the day and we'll resume on

11     Thursday, the 15th of December, 9.30 in the morning, in this same

12     courtroom, I.

13                           --- Whereupon the hearing adjourned at 2.26 p.m.,

14                           to be reconvened on Thursday, the 15th day of

15                           December, 2016, at 9.30 a.m.