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
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,
1 And at T44735, line 22, the reference to P3906 should refer to
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
25 Like all wars, the conflict in Sarajevo started long before the
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
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
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."
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
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
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
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
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 --
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.
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
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
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
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
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,
1 paragraph 22.
2 I'd like to go into private session briefly.
3 JUDGE ORIE: We move into private session.
4 [Private session]
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
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
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
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
1 launch an attack consider the impact of their actions prior to engaging a
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
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
24 We've already talked about the Gotovina Appeals Chamber Judgement
25 at paragraph 63 which found that mobile mortars were legitimate military
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."
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
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
1 JUDGE ORIE: We move into private session.
2 [Private session]
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.
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
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
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
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]
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
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
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
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
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.
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
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. --
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
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
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
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
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
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,
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
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
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
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
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
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.
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
14 Again, the evidence led by Mr. McCloskey does not evidence
15 Mr. Mladic telling people where to go. The Bosnian Muslims decided for
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
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.
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
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.
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
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
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
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."
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.
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?
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
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
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
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
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
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.
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
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:
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
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
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
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
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
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
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
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
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,
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
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
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
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
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:
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?
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.
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
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
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
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
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
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
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
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.
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:
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
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
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.
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
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
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.
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
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
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
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
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
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
20 Now I would ask that we move in private session.
21 JUDGE ORIE: We move into private session.
22 [Private session]
11 Pages 44824-44826 redacted. Private session.
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
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
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.
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
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
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
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
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.
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
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
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.