Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11235

1 Wednesday, 28 June 2006

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.31 a.m.

5 JUDGE PARKER: Good morning.

6 The Chamber, Mr. Domazet, is concerned to hear of Mr. Vasic's

7 health. Would you convey to him our best wishes, and we hope he is able

8 to recover very quickly.

9 We would spend a moment or two on the question of exhibits and the

10 outstanding issues. We see that there may have been an agreement reached

11 on the indictments and judgements and transcripts. Is that so, Ms. Regue?

12 MS. REGUE: Good morning, Your Honours. Yes. This is the fact,

13 and if I come to see it, we would like to expose to the Chamber the

14 agreement and to tender the documents.


16 MS. REGUE: First of all, both parties have agreed to tender both

17 indictments. Indictment number 3-03 dated 4 December 2003 with the

18 following ERNs, both in English and in B/C/S: 0345-2550-0345-2563. We

19 seek to tender this document into evidence.

20 JUDGE PARKER: That will be received.

21 THE REGISTRAR: Your Honours, that will be Exhibit 606.

22 JUDGE PARKER: Thank you.

23 MS. REGUE: The second document is indictment number 4-03 dated

24 24 May 2004. The indictment has the following ERNs, both in English and

25 in B/C/S: 0357-4622-0357-4635. We seek to tender this document into

Page 11236

1 evidence as well.

2 JUDGE PARKER: That will be received.

3 THE REGISTRAR: That will be exhibit number 607, Your Honours.

4 MS. REGUE: And with regards to the transcript of the audio

5 recording at the district court of the war crimes in Belgrade concerning

6 the trial of Milan Bulic dated 30 January 2006, both parties have agreed

7 to tender these documents in full. We have the B/C/S document with the

8 following ERN -- and we have disclosed this morning to our learned friends

9 the English translations, so we can proceed to tender both documents with

10 the following ERNs: 0505-1090-0505-1094. We seek to tender these

11 documents into evidence in full.

12 JUDGE PARKER: It will be received.

13 THE REGISTRAR: It will be exhibit number 608.

14 MS. REGUE: Then, Your Honours, both parties have agreed to

15 seek -- have agreed to tender the following documents only in part. First

16 the transcript of the audio recording of the Belgrade war crimes court,

17 decision concerning the Ovcara trial dated 12th December 2005 with the

18 following ERN in B/C/S: 0505-1064-0505-1089. The Prosecution seeks to

19 submit only the pages 1 to 8, both inclusive.

20 JUDGE PARKER: Those pages will be received as an exhibit.

21 THE REGISTRAR: That will be exhibit number 609, Your Honours.

22 MS. REGUE: The English translation of these document has the

23 following ERN: 0467-2754-0467-2779. And the Prosecution seeks to tender

24 the pages 1 to 11, both inclusive.

25 JUDGE PARKER: It will be received as part of the last exhibit.

Page 11237

1 Yes.

2 MS. REGUE: Finally, Your Honour, we seek to tender the B/C/S and

3 the English translation of one part of the judgement itself, which have

4 the following ERN in B/C/S, the ERN of the following -- of the full

5 document is 0505-1095-0505-1233. And we seek to tender only the following

6 ERN: From 0505-1095-0505-1109. That's the ERN which contains the pages

7 that we seek to tender in B/C/S.

8 JUDGE PARKER: Is the English yet available?

9 MS. REGUE: Yeah, we disclose it this morning, and the ERN is --

10 JUDGE PARKER: I think we've got that ERN number, so you have no

11 need to read it out.

12 That document, both in B/C/S and English, will be received.

13 THE REGISTRAR: It be exhibit number 610, Your Honours.

14 JUDGE PARKER: Thank you.

15 MS. REGUE: Thank you, Your Honour, we have no further

16 submissions.

17 JUDGE PARKER: Thank you for that.

18 In respect of the motion of the Prosecution to tender the Zorc

19 report from the bar table, this is an expert report dated the 1st of

20 February, 2004 prepared for another case. Portions of this report were

21 referred to and relied upon by the Prosecution's expert military witness,

22 General Pringle. The Trial Chamber finds the report is relevant only

23 insofar as General Pringle has adopted and relied upon it. The portions

24 of the report which he has so relied upon have been identified in General

25 Pringle's report and in his oral evidence and have, in fact, in part been

Page 11238

1 the subject of cross-examination.

2 It is apparent that General Zorc's report, in large part, is not

3 directly relevant to this trial. Furthermore, General Zorc was available

4 but was not called as a witness in this trial. Therefore, the report will

5 not be received into evidence.

6 With respect to the blue folder marked for identification as 345,

7 this is a document containing lists of people said to have been patients

8 or treated at the Vukovar Hospital at or around the time relevant to the

9 indictment and who later died at Ovcara. The Defence has objected to its

10 admission on a number of bases. I'll just mention in particular it's

11 objected that it has not been shown to be accurate, that the sources of

12 information in the lists are not clear, that in some respects the original

13 compilers of the information in the reports have not given evidence, and

14 the source documents themselves are not in evidence.

15 The contents of the document are clearly relevant to material

16 issues in this trial, but there clearly are reasons why the reliability of

17 the information contained in the lists requires careful scrutiny. That

18 being said, it is the view of the Chamber that it is demonstrated by the

19 evidence that there is a sufficient basis of reliability to justify the

20 admission of the document. It will therefore be admitted.

21 There remains the documents that are subject to objection from the

22 expert report of Mr. Theunens. These are a general group of documents

23 which are newspaper reports, and I think it's six other documents that are

24 the subject of specific objection. The Chamber finds that without being

25 able to view those particular documents it is not able to reach a view

Page 11239

1 about the objections that have been made; in particular, objections that

2 they are not relevant or that they have not in any way been reliably

3 identified and sourced.

4 For those reasons, the Chamber would require that copies of those

5 objected documents be made available to it so that it can assess the

6 weight of the objections before determining whether or not they should be

7 admitted into evidence. And if that could be attended to, even in the

8 course of today, it could be possible to arrive at a decision and publish

9 a decision by Friday. We want to get matters of evidence resolved so that

10 the parties know clearly on what evidentiary basis they proceed from this

11 point.

12 Very well. Mr. Domazet.

13 MR. DOMAZET: Thank you, Your Honour. One moment only.

14 [Interpretation] Good morning to everyone in the courtroom. I

15 will begin with the submissions for the Defence of Mr. Mrksic in relation

16 to Rule 98 bis of the Statute of this Tribunal. Bearing in mind the norms

17 of this Tribunal, as well as standards applied by this Trial Chamber and

18 other Trial Chambers in previous cases, and also bearing in mind that we

19 come from a legal system where there is no concept of acquittal, I will

20 try to limit my submissions under Rule 98 bis to what I believe to be

21 appropriate in view of the jurisprudence of this Tribunal.

22 Before I begin with the submission of our arguments under this

23 rule, prior to that I would like to raise some issues as Defence counsel

24 which I believe to be justified in view of the modified procedure applied

25 before this Tribunal.

Page 11240

1 The purpose of the application of this rule, Rule 98 bis, is to

2 enable the Trial Chamber, after the end of Prosecution case, to analyse

3 the evidence led until that moment and to establish to which extent the

4 Prosecution managed to prove the allegations in their indictment

5 concerning the criminal responsibility of the accused. The purpose of

6 this is to contribute to the procedural economy and to avoid evidence by

7 Defence that is not necessarily needed.

8 I believe that this rule is limited to a situation where the

9 Prosecutor failed to produce such evidence based on which a Trial Chamber

10 could conclude that no reasonable trier of facts would consider such

11 evidence to be sufficient to prove -- or, rather, to base beyond

12 reasonable doubt a conviction on them. It seems to me that the standard

13 is that Rule 98 bis needs to be applied only in such cases where the

14 evidence led by the Prosecution is such that even when viewed in the

15 gravest light they wouldn't be capable of supporting a conviction. We

16 need to bear in mind the need for judicial economy and speedy proceedings,

17 and perhaps it wouldn't be too strong to say that a Trial Chamber is

18 entitled to go a step further, because there is no jury, so it is the

19 Trial Chamber which decides on conviction, and this in a sense is a

20 usurpation of the role of a jury in the common-law system.

21 The Trial Chamber will have to assess evidence at the end of the

22 trial, and I think that they will not overstep their authorities if, at

23 this stage, when analysing evidence led by the Prosecution on its own as

24 well as in the context of all of the evidence presented during the

25 Prosecution case, they conclude that in relation to certain counts of the

Page 11241

1 indictment the Prosecution failed to prove the guilt of the accused beyond

2 reasonable doubt.

3 The duty to prove the allegations contained in the indictment

4 rests with the Prosecution, and the Prosecution must comply with this

5 obligation in this stage of the proceedings, because during the Defence

6 case the guilt of the accused is not going to be proven if it wasn't

7 proven beyond reasonable doubt during the Prosecution case.

8 In this case we have a situation where the Prosecution did not

9 call a large number of witnesses here to testify, and these witnesses were

10 participants in the event. Rather, on some occasions they relied on

11 hearsay evidence, which is a peculiarity of the Rules of this Tribunal.

12 Naturally, the Prosecution decides how they want to present their case.

13 It is their prerogative. But we think that the Trial Chamber should

14 assess whether the Prosecution could have proven beyond reasonable doubt

15 already in this stage of the proceedings certain allegations from the

16 indictment, so that the Defence would not need to lead evidence concerning

17 those allegations which were not proven sufficiently in accordance with

18 the standards contained in the jurisprudence of this Tribunal.

19 I think that this view is supported by the jurisprudence of this

20 Tribunal, which allows the Prosecutor to put forward broad charges which

21 in turn makes the proceedings much more complex. Thus, a broader

22 application of Rule 98 bis was proposed, and it goes beyond the

23 jurisprudence of national courts. It is just a mechanism that is used in

24 order to ensure the efficiency of the proceedings.

25 Thus, the Defence of Mr. Mrksic will turn to those counts of the

Page 11242

1 indictment which we believe were not sufficiently proven during the

2 Prosecution case.

3 When it comes to individual criminal responsibility under

4 Article 7(1) of the Statute of this Tribunal, the indictment in Counts 4

5 to 12, the Defence of Mr. Mrksic believes that during the Prosecution case

6 the Prosecution failed to support these counts with evidence based on

7 which this Trial Chamber could establish, beyond reasonable doubt, that

8 the accused Mile Mrksic was one of the participants in the joint criminal

9 enterprise, nor could the Trial Chamber establish that he planned,

10 instigated, aided or abetted or committed any of the acts in relation to

11 that as stated in the indictment.

12 The Prosecution didn't lead any evidence to prove that the accused

13 Mile Mrksic was a participant of joint criminal enterprise who, in

14 agreement -- who acted in agreement with other participants of this JCE as

15 stated in Count 7 of this indictment. The purpose of his action was not

16 persecution of Croats and other non-Serbs, as listed in the indictment,

17 and the Prosecution did not provide sufficient evidence to support this

18 allegation.

19 When it comes to Count 9 of the indictment, the Defence believes

20 that the Prosecution failed to prove, under (b), that he knew that on the

21 18th of November, 1991, in Zagreb an agreement had been reached between

22 the JNA and the Croatian authorities on evacuation of patients from the

23 Vukovar Hospital. They didn't adduce a single piece of evidence to

24 support this. Neither does it stem from the statements of witness

25 Dr. Vesna Bosanac who gave evidence here before this Tribunal.

Page 11243

1 Under (c) of this same count, Count 9, in view of the Defence, the

2 Prosecution didn't prove, didn't adduce evidence based on which the Trial

3 Chamber could establish, beyond reasonable doubt, that the accused Mrksic

4 ordered that the detainees from the Vukovar Hospital be surrendered to

5 other Serb forces, as is stated in the indictment.

6 JUDGE PARKER: Could I just intervene, Mr. Domazet.

7 We believe that you're referring to Article 9 and Article 7, or

8 paragraph 9 and paragraph 7 of the indictment, rather than to Count 9 and

9 Count 7. Is that correct? Paragraph 9 is the paragraph which sets out

10 (a), (b), (c) and (d), particularly against your client, and I think what

11 you're speaking about, is referring to those.

12 MR. DOMAZET: Yes, Your Honour.


14 MR. DOMAZET: [Interpretation] Yes, Your Honours. I used the

15 word "count" instead of the word "paragraph." So yes, I would like to

16 correct myself. A minute ago I spoke of paragraph 7 of the indictment,

17 and now I'm referring to paragraph 9 of the indictment.

18 So when it comes to paragraph 9(c), and the order for the issuance

19 of which the accused Mrksic is charged, I believe that no evidence was led

20 by the Prosecution to support this allegation.

21 As for 9 D, where the accused Mrksic is charged with -- I'm now

22 quoting from the indictment: "After becoming aware that the criminal acts

23 charged in this indictment had been completed, took steps to hide and

24 conceal these crimes."

25 The Defence believes that there is no evidence to establish that

Page 11244

1 the accused Mrksic learned of this, and then took these steps, and if so

2 when. The Prosecution failed to prove it during their case. They also

3 didn't prove what measures precisely the accused Mrksic took in order to

4 hide and conceal these crimes.

5 Now, as for paragraph 20 of the indictment, even though it may not

6 be of vital importance, the Defence believes that the accused cannot be

7 considered to be bound by law and regulations as set out in the Law on All

8 People's Defence and the Law on Service in the Armed Forces of the SFRY

9 from 1988. In view of the Defence, these regulations on the application

10 of the international laws of war on the armed forces of the SFRY pertain

11 only to the international conflicts, which was not the case in our trial.

12 As for basic facts listed in paragraphs 24 to 27 of the

13 indictment, the statement of facts, the Defence of Mr. Mrksic believes

14 that the Prosecution did not adduce evidence to show, I'm quoting now

15 that: "The non-Serbs were subjected to a brutal occupation regime, and

16 that ultimately almost entirely non-Serb population in the occupied area

17 was killed or driven out." As well as that members of the JNA, upon

18 taking control of Vukovar, which, in the indictment is described as an

19 occupation, I'm quoting that: "They, upon doing that, killed another

20 several hundred non-Serbs."

21 In view of the Defence, there is no evidence to support that this

22 was done by the members of the JNA.

23 Additionally, it is our view that the Prosecution did not support

24 with evidence facts stated in paragraph 30 of the indictment. I'm

25 quoting: "On 19 November 1991, Mile Mrksic was ordered by the JNA command

Page 11245

1 to evacuate Vukovar Hospital pursuant to the agreement reached in Zagreb

2 on the 18th of November, 1991."

3 This was already discussed previously; namely, the position of the

4 Defence, that the Prosecution failed to prove that Mile Mrksic was

5 informed at all about the Zagreb agreement. Similarly, there is no

6 evidence to support what is stated in this paragraph; namely, that he had

7 received an order by some JNA command. We did not see any such order, nor

8 were we able to infer that, based on the evidence led.

9 In paragraph 37 of the indictment where there are allegations

10 about how the detainees were led from the hangar in the direction of

11 Grabovo, when using the terms "Serb forces comprised of JNA," the

12 Prosecution in relation to that did not lead evidence based on which the

13 Trial Chamber could establish beyond reasonable doubt that this was, in

14 fact, so.

15 In view of the Defence, there is no evidence to support that the

16 soldiers of the JNA took part in driving away and physically exterminating

17 detainees. Even though it is true that Witness P-022 participated in

18 this, based on his own evidence here, that is not sufficient proof of the

19 participation of the JNA soldiers, because, among other things, even if

20 this Trial Chamber is to believe the evidence given by this witness, he

21 was present there outside -- or, rather, without any orders issued by his

22 superiors. He didn't have a prescribed JNA uniform that had been issued

23 to him and that he had worn prior to that. He didn't have the JNA-issued

24 weapon; rather, he had some kind of a hunting rifle. It is clear that his

25 alleged participation in this has nothing to do with involvement of the

Page 11246

1 JNA soldiers.

2 It is our view that the Prosecution failed to prove paragraph 37,

3 where they state that the JNA soldiers were among those Serb forces, as

4 the Prosecution calls them, who led away and killed detainees. The

5 possible involvement of P-022 can in no way be considered to be tantamount

6 to JNA involvement or indeed to prove that the JNA soldiers were involved

7 in the killing of at least 264 Croats and other non-Serbs as set out in

8 paragraph 38.

9 Speaking of this figure, the Defence believes it cannot be

10 accepted as proven by the OTP that at least 264 Croats and other non-Serbs

11 were killed. The figure could be at the very most about 200 persons,

12 mostly Croats but also others, not just non-Serbs, but rather also Serbs.

13 Paragraph 38 of the indictment contains an allegation by the OTP.

14 The allegation is as follows: The bodies of the victims were buried in a

15 mass grave by using a bulldozer. The Defence respectfully submits that

16 this does not follow from any evidence that has been adduced. None of the

17 evidence so far indicates that this type of machinery, anything resembling

18 a bulldozer, was used. We do believe that the Prosecution have failed in

19 proving this.

20 Paragraph 39 of the indictment claims that on the morning of the

21 21st of November, in Vukovar, at Nova Ulica 81, Radic, Vujanovic and

22 others, but certainly not Mrksic, not including Mrksic, who was himself

23 never in Vukovar on those days, the paragraph claims that these people

24 discussed the massacre that had occurred at Ovcara. The OTP here claims

25 that Mrksic knew about this conversation and that based on this knowledge

Page 11247

1 he could and should have taken steps to punish the perpetrators. The

2 Defence has already pointed out our belief that there is nothing to

3 indicate that Mrksic took any measures to destroy evidence or conceal the

4 crime. We do believe, therefore, that the OTP have failed to prove

5 Mrksic's knowledge of this conversation, if indeed such a conversation

6 ever took place. He could not have known about this, and there is no

7 evidence to show that he could.

8 Speaking about paragraph 41 of the indictment, the Defence

9 believes that the Prosecutor has failed to prove persecution on political,

10 racial or religious grounds. The maximum figure would be 200, and

11 certainly not 264, as stated in the indictment, which would include all

12 the different ethnic groups, including Serbs, although the predominant

13 group among those were Croats; that is beyond doubt.

14 Further, the Defence believes that the Prosecution have failed to

15 prove that sexual violence was perpetrated against at least one woman.

16 This is in paragraph 41(b).

17 Paragraph 44 is repetition of something that the Mrksic Defence

18 has already challenged on several occasions. There is the allegation that

19 at least 264 Croats and other non-Serbs were taken in groups to a location

20 southeast of the Ovcara farm where Serb forces comprised of JNA, TO -- or

21 rather, comprised of, among others, the JNA, executed them. These facts

22 have been challenged on numerous occasions as facts simply not proven by

23 the OTP.

24 As for the allegation in this paragraph that the names of victims

25 are set out in the annex attached to this indictment, one thing we must

Page 11248

1 bear in mind is that during this trial it has been proven that a total of

2 200 bodies was exhumed from the Ovcara mass grave. Two of the identified

3 bodies are, in fact, not on the list attached to the indictment. Also, in

4 the course of this trial it has been established that 14 persons from that

5 list were buried at the new cemetery in Vukovar and not at Ovcara.

6 Speaking about paragraph 46 of the indictment, the Defence must

7 repeat something that we have already said. It has not been proven that

8 only Croats and non-Serbs were victims, nor has it been proven that there

9 were about 300 of them as stated in this paragraph. Likewise, the

10 Prosecutor has led no evidence to prove - and now I'm talking about

11 paragraph 41(b) - that at least one female person was subjected to sexual

12 assault.

13 Your Honours, this is the position of the accused General Mrksic's

14 defence under Rule 98 bis under the Rules of this Tribunal.

15 JUDGE PARKER: Thank you very much, Mr. Domazet.

16 [Trial Chamber confers]

17 JUDGE PARKER: Mr. Borovic.

18 MR. BOROVIC: [Interpretation] Thank you. And good morning to you,

19 Your Honours.

20 As for the proposed application of Rule 98 bis, the Defence is

21 aware of the positions of this Chamber in relation to the ruling that is

22 to follow pursuant to Rule 98 bis. We know that it is not the time today

23 to evaluate the guilt of the accused under the counts of the indictment or

24 the totality of evidence that has so far been adduced. However, we must

25 say that the credibility of certain witnesses, their weaknesses and

Page 11249

1 strengths, as well as the contradictory nature of some evidence is also

2 not something that I am now here to point out. However, something that

3 Mr. Domazet has already said is that the Chamber, based on evidence judged

4 in the most favourable or gravest possible light, depending on the

5 view-point, can sometimes acquit, even based on that one single piece of

6 evidence.

7 However, there is a very important theory here in favour of the

8 fact that if there is even a shred of evidence, but a relevant shred of

9 evidence, viewed on its own terms and yet found so wanting, so

10 unconvincing, a reasonable trier of fact can never lend it the same

11 credence or weight as the best and strongest evidence, and therefore such

12 evidence cannot be used as a basis for acquittal.

13 The Radic Defence will use or employ the same system as in the

14 previous case. We shall challenge the responsibility of Radic under 7(1)

15 and 7(3). We shall also be addressing the individual paragraphs. It

16 won't be until the very end of my argument that I will address the counts

17 and specific charges brought against Miroslav Radic for the crimes alleged

18 in the indictment. As for Miroslav Radic's individual criminal

19 responsibility, the Prosecutor would needed to have proven either direct

20 perpetration of the crimes stated in the indictment or the existence of a

21 joint criminal enterprise that the accused was part of.

22 It is this concept of joint criminal enterprise that is mentioned

23 in 7(1) as pertaining to Radic's individual responsibility. There must be

24 justification in purely cumulative terms for proving this. There must be

25 solid proof of the existence of such a plan in addition to the physical

Page 11250

1 perpetrators alleged by the OTP. The OTP does not say that these three

2 accused were directly involved in the perpetration of any crime at all.

3 However, the Prosecutor would then needed to prove the mens rea of these

4 three accused, something that they shared with the physical perpetrators,

5 the mens rea of the accused as suggested by the OTP. The most important

6 intent, the most important common intent must be backed by such convincing

7 evidence that even when such evidence is viewed in the most unfavourable

8 light there can be no acquittal.

9 I will not be speaking about aiding and abetting, because this

10 comes down to an element of volition, and this is something that is

11 essential in relation to all three accused. I will be addressing this

12 specific issue through the individual counts.

13 If we go from paragraph 4 to paragraph 12, we will realise the

14 following. Paragraph 5 of the indictment claims that the purpose of this

15 joint criminal enterprise was the persecution of Croats, specifically

16 those who were present in the Vukovar Hospital and were then taken to

17 Ovcara, where the crimes of murder, extermination, torture were committed,

18 as well as other inhumane actions. This is under Article 3 and Article 5

19 of the Statute.

20 What I find myself obliged to tell the Trial Chamber now is that

21 Radic was a small-time commander of a small-time company within the 1st

22 Guards Motorised Brigade. The Prosecution have proved nothing beyond

23 that. They have succeeded in proving that he acted in accordance with the

24 rules governing the services in the armed forces. He took part in these

25 operations, house-to-house, street-to-street operations, and this is why

Page 11251

1 I'm calling the overall nature of his enterprise small-time.

2 He was acting as a military officer. He had certain orders, and

3 he restrained from doing anything else but carrying out those limited

4 orders. And the element of volition required for persecutions was

5 certainly not there.

6 In relation to paragraph 5, there is no solid evidence adduced by

7 the OTP to show that Radic was involved in the evacuation of the hospital.

8 Alleging his presence there merely to corroborate the indictment can only

9 be described as unconvincing evidence, and no reasonable trier of fact

10 could ever convict based on this one single piece of evidence.

11 Paragraph 6 of the indictment addresses the objective of the joint

12 criminal enterprise. Obviously a joint criminal enterprise requires the

13 presence of several people who take part in it. The Prosecutor cites this

14 as one of the proofs that the joint criminal enterprise existed. However,

15 what is essential is a common plan, a plan shared by all these

16 co-conspirators, which the Prosecutor has done nothing at all to prove,

17 especially as concerns my client's involvement.

18 The beginning of this enterprise or plan is alleged to have

19 occurred in Seselj's alleged speech, which is a political pamphlet to all

20 practical intents, but that cannot be taken as an incipient plan. I will

21 address all the counts of the indictment individually to explain this. If

22 by describing Seselj's visit between the 13th and the 15th of November,

23 1991 as the beginning of a joint criminal plan, and provided the

24 Prosecutor has been successful in proving the date at all, we know that no

25 agreement was reached on that occasion between Mrksic, Sljivancanin,

Page 11252

1 Radic, Stanko Vujanovic, Miroljub Vujovic, or anyone else present there.

2 The Prosecutor has never managed to prove that some of the accused

3 were there at all at this critical time. Further, the Prosecutor did not

4 prove that a plan was designed so that this speech could be taken as the

5 beginning of a plan or an enterprise. By this criminal enterprise crimes

6 were committed against persons, as the Prosecutor claims, who were brought

7 from the Vukovar Hospital to Ovcara. This would probably imply that as

8 soon as now there was an agreement on the evacuation which was generally

9 known, or, rather, that persons belonging to certain groups would at this

10 point in time be taken to Ovcara for an execution.

11 It is also beyond reasonable doubt that the Prosecutor proved the

12 evacuation of the Mitnica group, but it is against this very background

13 that we should realise that the Prosecution has failed to prove that

14 following such a common agreement and a joint criminal plan that all Serbs

15 should be killed and driven out of Vukovar. Quite the contrary, in fact.

16 This is a positive example showing how military enemies can be evacuated

17 in keeping with the rules without the presence of a broader plan at this

18 point in time. The mens rea of the accused Radic would imply that the

19 Prosecutor has thus proven the existence of this joint plan or common

20 intent [as interpreted].

21 Now, under this assumption that there was no common plan, no joint

22 criminal enterprise, then we would need to assume that it was other

23 perpetrators who committed these crimes, these serious criminal offences.

24 This may have been the result of a common plan or joint criminal

25 enterprise by some other people. But how could then Radic have been part

Page 11253

1 of this plan and how could he be held responsible? By way of conclusion,

2 Radic was not involved in any sort of joint criminal enterprise. The

3 Prosecutor has failed to show that on this particular occasion when Seselj

4 spoke Radic in any way took part in this. I can quote evidence by

5 witnesses to show this. Radic did not speak about any sort of plan or

6 enterprise, nor did the Prosecutor show that Radic reacted in any way at

7 all to this alleged beginning of a joint criminal enterprise. I base this

8 on Prosecution witnesses P-002, P-018 and P-022. Needless to say, there

9 is not a single witness statement to prove otherwise.

10 I would like the Chamber to view these circumstances in the light

11 suggested by OTP witnesses themselves. "Not a single Ustasha must leave

12 Vukovar alive." This is something that a politician may have stated, but

13 this could also imply that there was a military victory involved. We had

14 evidence adduced here, Exhibit 567, which was a newspaper article

15 demonstrating that Seselj was fighting against fascists and that he did

16 not believe that all Croats were Ustashas. So by promoting, putting

17 forward such ideas, the Prosecutor presents a false premise, and I don't

18 think that this false premise requires us to deal with it seriously,

19 either at this stage or any other stage of the proceedings.

20 Paragraph 7 of the indictment, I think I've already mentioned this

21 in passing, the Prosecutor failed to prove that Radic had any kind of an

22 agreement with Mrksic, Sljivancanin, TO members and volunteers.

23 Paragraph 8, which under (b) says that Stanko's house was the

24 command post. Once again, I would point out that layman even referred to

25 this location as an operations headquarters, command headquarters, or

Page 11254

1 command for major military operations in Vukovar. All of this is of

2 declarative nature aimed at supporting only verbally this indictment.

3 However, we know that certain witnesses, especially witness Trifunovic,

4 were quite firm in their statement that a command post can be established

5 only within large, high-level formations starting from battalion and up.

6 So this is not just a matter of military organisation, no. This was

7 stated in Prosecution case by Prosecution witnesses in these very terms.

8 Paragraph 10(a) is quite interesting in my view, especially in

9 relation to my client, the accused Radic, because it is stated here that

10 he had effective control over Serb forces, those who were responsible for

11 crimes committed against non-Serbs taken from the Vukovar Hospital. The

12 Prosecution did not prove here that Radic had de jure or de facto

13 effective control on the one hand; and on the other hand, under (b),

14 subparagraph (b), it is stated that there were 400 non-Serbs involved. In

15 another place they speak of 300 non-Serbs, which means that the

16 Prosecution, first of all, wasn't clear as to the number of people

17 involved. That's one. And two is that Radic did not have either de facto

18 or de jure control. He certainly didn't [realtime transcript read in

19 error "did"] have de jure control over Serb forces. I don't want to

20 trouble the Chamber by describing who comes into this category. We are

21 quite familiar with this. The Prosecution did not undermine the evidence

22 presented by Defence; namely, that after the 14th of November, 1991 --

23 Your Honours, line 20 -- or, rather, page 20, line 12, it should

24 say that he certainly didn't have de jure effective control. Thank you.

25 What the Prosecutor did prove is that the crime was committed;

Page 11255

1 however, Miroslav Radic, as I have said, after the 14th of November, in

2 accordance with Exhibit 430, 431, didn't have de facto control either.

3 I'm not going to go now into who had such control. This is

4 something that the Prosecution should prove, even though it is apparent,

5 based on the orders that were introduced into evidence here. If we were,

6 however, to go into details, then we would say that the Prosecution didn't

7 manage to successfully challenge the evidence that in Petrova Gora there

8 was a commander of the 1st Assault Detachment, 1st Motorised Battalion,

9 that it was a location where TO forces of Petrova Gora were stationed, as

10 well as Leva Supoderica detachment. So even when that is taken into

11 account, he has an inferred de facto effective control in addition to

12 de jure control, and this was not challenged by the military experts of

13 the Prosecutor, including General Pringle.

14 This means that in this portion the Prosecution failed to adduce

15 evidence and convince the Trial Chamber that after this date, even if

16 everything else is ignored, that after this date Radic had any effective

17 control over these forces. Exhibits 374 and 418, which a bit ago I linked

18 with the de facto control of the commander of Petrova Gora settlement, is

19 something that further supports these facts.

20 In paragraph 10 they speak of personal participation in the

21 removal and selection of about 400 non-Serbs from Vukovar Hospital early

22 in the morning on the 20th of November, 1991. This is paragraph 10(b). I

23 think that in this instance the Prosecutor offered in support of their

24 allegation only one single witness, P-030. Even if we were to accept that

25 it was true that he had heard the name, everything else in this evidence

Page 11256

1 is simply completely unconvincing. He spoke of a person who was up to 40

2 years old, of quite dark tan, 180 to 185 centimetres tall, or rather --

3 THE INTERPRETER: Interpreter's correction, 175, 180 centimetres

4 tall.

5 MR. BOROVIC: [Interpretation] We know that my client was much

6 younger at that stage, and he doesn't have dark complexion and his height

7 is 192 centimetres. As for the uniform and his head-ware, this is

8 something that is quite standard within the JNA. Military expert Pringle

9 didn't support this thesis either when giving evidence. However, even if

10 we were to assess this evidence in the most favourable light, it would

11 still fall into the category of unconvincing evidence that I mentioned in

12 the beginning of my address. Even if viewed in the most favourable light,

13 no conviction could be handed down based on this evidence.

14 It remains unclear to the Defence, and I believe that in the end

15 it would be borne by the facts that a lot of valuable time, valuable for

16 the accused, for the Trial Chamber and for all other participants in these

17 proceedings, was lost while proving this allegation that Radic personally

18 participated in the removal and selection. The Prosecution has two

19 witnesses at least one of whom claims, "I'm the one, not Miroslav Radic,

20 I'm the one who personally participated in the removal and selection, and

21 I'm the one who had a list of 15 people who took out of a bus 15 people

22 who were later set free."

23 I think that clear evidence is needed here, not some semi-evidence

24 which is used to trap the accused. By applying the principle of justice

25 this cannot be upheld, and this must be the most important principle as

Page 11257

1 frequently stated by this Trial Chamber.

2 We believe that in this instance the Prosecutor failed to prove

3 this. It is quite clear that it is the military police who is in charge

4 of frisking, taking people to buses, and possibly selecting them. My

5 client, who was a commander of a company, is not entitled to issue orders,

6 nor did the Prosecution prove that he did this.

7 As for the command responsibility under Article 7(3) of the

8 Statute, it is clear that it is necessary for the superior/subordinate

9 relationship to exist, also for the knowledge of the superior to exist.

10 The Prosecution should have proven that he had the position of superior in

11 relation to these forces and that he had the actual knowledge that a crime

12 was going to be committed. Not a single legally relevant piece of

13 evidence was offered in support of this allegation.

14 As for him knowing or having reason to know, that is yet another

15 standard which was not achieved, because the Prosecution offered meager

16 evidence concerning the government of SAO Western Srem, Baranja and so on.

17 Radic didn't know about the sessions of the cabinet government, their

18 decisions. Miroslav Radic did not go to Ovcara. This was not even

19 suggested by the Prosecution.

20 As for the tasks concerning the securing of the hospital, removal

21 and selection of detainees, he could not have been involved in this, thus

22 he, as somebody who does not have effective control over, quote unquote,

23 Serb forces, he could not be held responsible under Article 7(3) of the

24 Statute in this portion of the indictment either. Thus, he could not have

25 taken reasonable and necessary steps. Perhaps there were some other

Page 11258

1 officers who could have done that, which is something that the Prosecution

2 could have proven. These officers were at a higher level than an

3 inconsequential company commander such as Miroslav Radic.

4 Now, as for subparagraph (c), where it says that he took no

5 steps -- or, rather, that he took steps to hide and conceal these crimes,

6 I think that this is clear, based on witness evidence, but the Prosecution

7 didn't prove that he took any steps to hide or conceal the crime. That's

8 one. Two, is if we know to whom these forces belonged on the 14th through

9 the 18th, and if we know what status they had on the 20th and 21st and

10 following that, then, once again, it is clear that no valid evidence was

11 offered by the Prosecution in relation to this either.

12 As for paragraph 13, I think that simply saying precisely for

13 these reasons the Prosecution has no evidence to support this.

14 Paragraph 16 is quite interesting in terms of legal

15 interpretation. In the second portion of paragraph 16 it is stated

16 this: "During the operations against Vukovar and its aftermath, Miroljub

17 Vujovic and Stanko Vujanovic ... were each subordinate to Miroslav Radic."

18 First, during the operations we heard here that Stanko Vujanovic

19 was in the direction of the company of Captain Bojkovski. The Prosecution

20 didn't prove at all that he was under the command of Miroslav Radic. And

21 to try to mask this by saying that the house of Stanko Vujanovic's father

22 is proof enough that he was there is simply not valid. Stanko Vujanovic

23 didn't sleep in his father's house during Vukovar operations. He slept

24 somewhere else.

25 Witness P-022, transcript 50-77/20, and then once again we come to

Page 11259

1 this witness who says under whose control Stanko was, this is transcript

2 page 4957/17. Other witnesses gave evidence concerning this, and the

3 Prosecution failed to provide clear evidence concerning this allegation.

4 Even the experts were quite reserved, had reservations about this

5 allegation that Stanko Vujanovic was under Miroslav Radic's command.

6 After Vukovar was liberated, after the 18th of November, we can

7 see this in paragraph 16, the second portion of it, there was not a single

8 piece of evidence to show that they were either de jure or de facto under

9 the effective control of Miroslav Radic.

10 Paragraph 19. Once again, we didn't hear any evidence offered by

11 the Prosecution that would convince us that Miroslav Radic was notified

12 that the detainees were threatened, that harm was caused to them, and

13 three, that their subordinates were about to commit criminal acts. Not

14 only was he not notified, but he also did not have effective control over

15 these people at that point in time. This goes along with what I was

16 saying previously.

17 Paragraph 20. In this paragraph, we only challenge, and this is

18 something that the Prosecution didn't prove, that -- or, rather, we are

19 saying that they were not duty-bound to comply with the regulations on the

20 application of the International Laws of War in the Armed Forces of the

21 SFRY from 1988. In these regulations, the declaration of war is not

22 mentioned; rather, an imminent threat of war. Due to these formal legal

23 reasons, this regulation may not be invoked as a basis for responsibility

24 of these accused.

25 If we were now to turn to paragraph 23, which discusses crimes

Page 11260

1 against humanity, we would see that it is stated at length here that all

2 of these acts were part of a wide-spread and systematic attack against the

3 Croatian and other non-Serb population. I don't think this is the place

4 or the time to discuss the status of the civilian population.

5 In the Blaskic case, it was explained that the persons who were in

6 the Vukovar Hospital would not have enjoyed that status, simply because

7 they failed to meet the six requirements under the Geneva Conventions. In

8 relation to some of the accused, Radic principally, the Prosecutor has not

9 proven that these acts were the result of a joint criminal enterprise and

10 plan.

11 I will again remind the Trial Chamber that Radic was a mere

12 company commander. He was in no position to get in touch with any

13 high-ranking officers in the area.

14 As for paragraph 23, the Defence asserts that the Prosecutor has

15 failed to prove this, to prove any allegations from these paragraphs. All

16 these could have been were random and individual incidents, at best.

17 Paragraph 26 mentions meetings at Captain Radic's headquarters,

18 the objective of these meetings was to plan military operations in

19 Vukovar. The OTP have not proved, even if we take into account these

20 verbal explanations by laymen, that this was a headquarters at all. It

21 could not have been a headquarters by any stretch of the imagination.

22 This is not where the liberation of Vukovar was planned. The only command

23 where plans were made was the command post of the commander of the

24 1st Motorised Battalion. Commanders came there pursuant to their orders

25 and pursuant to their plans, the TO commanders who were deployed along the

Page 11261

1 same operations axis.

2 Paragraph 27, and obviously when the Prosecutor says

3 "persecutions," they mean the evacuation. I don't think the evacuation

4 can be used in this sense. Your Honours, Count 1 of the indictment,

5 persecutions, is definitely not something that the OTP have been

6 successful in proving, and this is what Miroslav Radic is charged with.

7 Seselj's arrival did not give rise to any sort of joint criminal

8 enterprise, as I've explained. That would have led to these crimes being

9 committed.

10 P-094 [as interpreted], page 4194/12, 434; P-022, the transcripts,

11 4985/25. I see that the page numbers are not being recorded, but probably

12 it's a good idea not to go to these page numbers, because there is no time

13 and this is something that I have spoken a great deal about. Witnesses

14 P-024, P-022 and P-030.

15 Again, there is a reference here to paragraph 33 of the

16 indictment, the selection of detainees. Again, there is no evidence to

17 show that Radic was involved in the selection process. If we take into

18 account the unconvincing evidence of P-030, we can easily conclude that he

19 never said more than search, searching and frisking. There was no

20 selection, as such.

21 Paragraph 34 is something that remains entirely unproven by the

22 OTP; namely, that Major Sljivancanin ordered Radic to take a list

23 containing 15 names and take those people off the bus.

24 The Prosecutor has not proven paragraph 39; namely, that Radic,

25 Vujanovic and others discussed the massacre that had occurred at Ovcara

Page 11262

1 during the preceding night.

2 Witness P-002, which is probably the witness invoked by the OTP

3 here, says that he did talk to a number of people and later asked

4 Vujanovic about these circumstances. Later he does say at some point

5 during the evening, but then there is a different statement where he says

6 several days later he claims that he spoke to Radic which in response to

7 unconclusive action and unclear answers asked by the witness he said that

8 they had not discussed the massacre at Ovcara the previous night.

9 The OTP never managed to prove that the word "massacre" or

10 "crimes" or "Ovcara" were used in this conversation. Even their own

11 witness could not corroborate this.

12 I see that I have two minutes left, which means that I will try to

13 abbreviate this.

14 The Trial Chamber has been following the Prosecutor's evidence. I

15 don't believe they have been successful in proving any of the counts

16 between 1 and 8, the counts that my client, Mr. Radic, is charged with.

17 Regardless of what I said at the beginning of my address to the Trial

18 Chamber, when I said what a 98 bis ruling should be, I still do not

19 believe that I have now misused this rule. I believe that a sufficient

20 number of conditions and circumstances have been accumulated over the

21 course of the OTP case for the Chamber to acquit. After all, my client is

22 here charged with counts that have no foundation in evidence or reality.

23 This is all that I wish to tell the Trial Chamber today. Thank

24 you very much.

25 JUDGE PARKER: Thank you very much, Mr. Borovic.

Page 11263

1 We will have the first morning break now, resuming at 20 past.

2 --- Recess taken at 10.58 a.m.

3 --- On resuming at 11.21 a.m.

4 JUDGE PARKER: Mr. Lukic.

5 MR. LUKIC: [Interpretation] Good morning, Your Honours.

6 I will first make a general introduction to indicate how our

7 Defence team sees the situation we are facing under these 98 bis

8 proceedings.

9 The Defence teams in this trial hail from a legal system that

10 contains no provisions that are related to the general nature of

11 Rule 98 bis, the chief reason probably being that our original legal

12 system is founded on the principle of objective truth and not on the

13 principle of proving guilt beyond reasonable doubt. In our own system,

14 the role of the court is far more active in both gathering evidence and

15 deciding on the presentation of evidence. The role of the parties to the

16 proceedings is less pronounced than here, as a result. That is why, under

17 our 98 bis rule proceedings, we shall be trying to present our arguments,

18 both in terms of our experience and our professional standards, more in

19 relation to the jurisprudence of this Tribunal and its established

20 practice, as well as all the legal principles that it invokes. It is not

21 easy to refrain from evaluating evidence as a whole or to draw the key

22 distinction between the strengths and weaknesses of various testimonies,

23 its contradictions and discrepancies. The Chamber will not be considering

24 that now, nor will it be making abstract evaluations on specific evidence,

25 whether it may perhaps be found wanting to warrant a possibility of

Page 11264

1 conviction.

2 The point in this trial at which we are now is about the

3 fundamental role of the Court to accurately analyse the proceedings so

4 far, in order to contribute to judicial economy and make it possible for

5 the Defence to avoid unnecessary evidence in our case. We fully support

6 the spirit of this article, although we do not think that the Prosecutor

7 should be allowed to use broad and vague accusations throughout the trial.

8 The latter, the fact that the Trial Chambers accept that the Prosecutor

9 conveys his whole case on a vague indictment throughout, is the opposite

10 of judicial economy.

11 From the very beginning of the trial, and especially after the end

12 of the OTP case, what this leaves the Defence with is an obligation to

13 challenge many allegations of the indictment that are simply groundless

14 allegations. In most of the cases tried before this Tribunal in the final

15 ruling an accused, as a rule, is acquitted on a limited number of counts.

16 Normally the Prosecutor drops the charges or there is a 98 bis ruling.

17 Such a decision, a timely one, would greatly expedite our Defence case and

18 reduce the length of the trial. This Defence team believes that it is up

19 to the Chamber to channel any charges that are too vague, leading only to

20 a trial that is too lengthy.

21 I believe that even in our national -- in those national

22 jurisdictions in which the standard known as no case to answer is applied

23 if trials were as unwieldy, with such a massive amount of evidence, and

24 even facing a clear pressure to expedite proceedings, Rule 98 bis

25 provisions would be made better use of.

Page 11265

1 The Defence must indicate another fact that seems to follow from

2 the OTP case. At this juncture, the Chamber can consider and analyse what

3 it was that the Prosecutor so forcefully announced at the beginning of the

4 trial and what in turn was led in evidence during their case. They

5 decided not to call some of their key witnesses. I use the word "key"

6 here merely to indicate how many times the statements of these witnesses

7 were invoked in their pre-trial brief. The Prosecutor showed that their

8 approach to presenting evidence is not at all aimed at informing the Trial

9 Chamber about all the facts in the OTP's possession and everything that

10 they had previously announced. To put it in the simplest possible terms,

11 the OTP does not wish to contribute to establishing the truth. They now

12 leave the Defence in a situation that is not mandated by the Statute or

13 the Rules.

14 By shifting the onus on the Defence, the Prosecutor leaves the

15 Defence in a position that it should never be expected or asked to face.

16 At this point in time, the Chamber, certainly because it is not familiar

17 with the statements or evidence of these potential witnesses and probably

18 will never be, because the rule does not allow for that, the Chamber

19 cannot assess how well the Prosecutor has met the requirements that he set

20 out at the beginning.

21 One thing that is certain is that the onus of producing evidence

22 should not be on the Defence but rather on the OTP.

23 I will now move on to my specific proposals, and my proposals are

24 in relation to forms of individual criminal responsibility under

25 Rule 98 bis. I am going to assess if there is any evidence to the charges

Page 11266

1 contained in the indictment.

2 First I will say something about the responsibility under

3 Article 7(1) contained in the indictment. The Prosecution did not provide

4 evidence based on which a reasonable trier of fact could conclude that

5 Sljivancanin in any way participated in the joint criminal enterprise, as

6 is stated in paragraphs 4 to 7 of the indictment.

7 If we begin from the thesis that the goal of that enterprise is as

8 the Prosecution defined in paragraph 5 of the indictment and paragraph 259

9 of their pre-trial brief, then there is simply no evidence to support that

10 Sljivancanin had any ties to that plan, if it ever existed.

11 In accordance with the appeals judgement in the Tadic case,

12 paragraph 227, in relation to actus reus, there is no evidence to indicate

13 that the third requirement, namely the participation of the accused in the

14 very commission of the crime which, in accordance with paragraph 4 of the

15 indictment, Sljivancanin is not charged with at all. Nor is there evidence

16 to show that Sljivancanin aided and abetted or contributed in any way to

17 the implementation of the common plan.

18 The Prosecutor didn't adduce evidence to show that Sljivancanin

19 had the requisite mens rea which was established as a standard in that

20 same judgement, the appeals judgement in Tadic case, paragraph 228, both

21 for the first category as well as the third category, or third type of

22 JCE. Specifically speaking, in relation to the first type of JCE, that he

23 had the requisite intent to commit a particular crime. In order to rule

24 pursuant to 92 bis motions, the Trial Chamber has to establish, that all

25 of the members of the JCE were involved in the commission of the crime,

Page 11267

1 specifically that Sljivancanin, I'm going now to quote from the ruling in

2 the Brdjanin case under 98 bis, paragraph 28, namely that he

3 intended -- "[Previous translation continues] ... [In English] ... common

4 plan and voluntarily participated in furthering the crimes in question."

5 [Interpretation] I will read it once again. Paragraph 28. "It is

6 required that the Chamber establish that the accused -- "[Previous

7 translation continues] ... [In English] ... the result of common plan and

8 voluntarily participated in furthering the crimes in question."

9 [Interpretation] I see that it's not in the transcript. It is not

10 running along. Maybe I should read it in B/C/S, but I wanted to use the

11 original text. I'll read it once again.

12 I apologise to the interpreter. I should have announced that it

13 was going to be in English. "[In English] Intended the result of common

14 plan and voluntarily participated in furthering the crimes in question."

15 [Interpretation] Now I will go back to my native language.

16 Now, in relation to the third category or third type of the joint

17 criminal enterprise, the Prosecution didn't provide a single piece of

18 evidence to prove the alleged intention of Sljivancanin to participate in

19 and to implement the criminal activity of a group or to contribute to the

20 joint criminal enterprise or to the commission of the crime by the group

21 defined in paragraph 7 of the indictment. The Prosecution didn't prove

22 that Sljivancanin was aware of any sort of a plan, and thus he was not

23 able to foresee that acts listed in paragraph 2 to 8 of the indictment

24 were a foreseeable consequence of the commission of this common plan.

25 Based on the above, the Prosecutor didn't provide any evidence

Page 11268

1 based on which a trier of fact could accept the allegations from the

2 indictment mentioned in paragraph 12.

3 The Prosecutor didn't prove, didn't lead any evidence based on

4 which any trier of fact could establish that the acts listed in

5 paragraph 11, subparagraph (a) to (i), are in any way related with the

6 criminal plan and implementation of the objective or joint criminal

7 enterprise. The Prosecutor especially didn't prove that Sljivancanin knew

8 that on the 18th of November an agreement was reached in Zagreb between

9 the JNA and Croatian authorities. This is subparagraph (b) in

10 paragraph 11.

11 I will now follow on what my colleague Borovic said, that it is

12 not clear to us to this day why, and based on what, in paragraph 11(c) the

13 Prosecutor mentions the number of 400 non-Serbs, whereas in paragraph 33

14 that number is about 300. We believe that no evidence -- there is no

15 evidence to support that about 400 persons were led out of the Vukovar

16 Hospital on the 20th of November in the morning.

17 Given the above-mentioned requirements, Sljivancanin didn't know,

18 nor did he have reason to know that these persons would be persecuted and

19 killed. There is not a single piece of evidence required by this standard

20 in Rule 98 bis to show that Sljivancanin participated in the joint

21 criminal enterprise by committing acts listed in paragraph 11(g). In

22 addition, there is not a single piece of evidence to show that

23 Sljivancanin took measures to hide or conceal these crimes as stated in

24 paragraph 11(i).

25 In relation to individual forms of responsibility under

Page 11269

1 Article 7(1) of the Statute, the Prosecution in their pre-trial brief

2 spoke of the orders in paragraph 277 of their pre-trial brief, and then in

3 paragraph 282 and 285 they spoke of aiding and abetting. Thus, I will put

4 forward the position of the Defence concerning these issues.

5 As for the ordering, the Prosecution failed to prove that

6 Sljivancanin ordered that any crime listed in the indictment be committed.

7 There is no evidence to show that he had the requisite mens rea for

8 ordering. They needed to lead evidence which would show that he intended

9 for this unlawful act to be committed and that he was also aware that

10 there was a substantial likelihood that crimes were committed, as is

11 established in the jurisprudence of this Tribunal; namely, in the appeals

12 judgement in the Blaskic case, paragraphs 41 and 42.

13 Finally, the special circumstances surrounding the position of

14 Mr. Sljivancanin within the chain of command, and we will speak of this

15 further when we get to the command responsibility, do not support the

16 claim that Sljivancanin had any sort of authority, including an unformal

17 authority over the persons which committed the crime physically, authority

18 needed in order to issue an order.

19 Now I would say something concerning aiding and abetting under the

20 criminal responsibility pursuant to Article 7(1).

21 In their pre-trial brief, in paragraph 285, the Prosecution lists

22 the acts which constitute aiding and abetting of Mr. Sljivancanin, and

23 they said that this would be proven in the Prosecution case. Further,

24 they say that he had ordered that people be transferred from the hospital

25 to the barracks, that he prevented the international observers from

Page 11270

1 attending all segments of the evacuation, that he oversaw the detention of

2 persons in the barracks, that he permitted people to be transferred from

3 the barracks to Ovcara, and that he allowed the security organs of the

4 guards brigade and the 80th Motorised Brigade to transfer the detainees to

5 other forces knowing that they would be subjected to further persecution

6 and killing.

7 The actus reus needed for aider and abetter as defined by the

8 jurisprudence of this Tribunal, in appeals judgement in Tadic case,

9 paragraph 229, where a distinction is made between these forms of criminal

10 responsibility and those within the joint criminal enterprise. I also

11 refer to Vasiljevic appeals judgement case, paragraph 102 and Aleksovski

12 appeals judgement case, paragraph 164.

13 I always feel a bit weird where I had to point out to the Trial

14 Chamber certain paragraphs in certain judgements. I think that you are

15 the last people to whom this needs to be pointed out because you're quite

16 familiar with this.

17 In the appeals judgement in Krnojelac case, paragraph 51, in

18 relation to mens rea, the court needs to establish that the accused, as

19 aider and abetter, was aware that through his acts he provided significant

20 contribution to the crimes committed by the principal perpetrator. He has

21 to be aware of basic elements of the crime committed ultimately by the

22 principal perpetrator.

23 In relation to specific charges that the Prosecutor described

24 concerning this form of liability, the Prosecutor didn't prove at all that

25 Sljivancanin was aware of the acts of main perpetrators, principal

Page 11271

1 perpetrators, and the intention of those who committed the crime of murder

2 and persecution, nor was he aware that they would be committing these

3 crimes. There is not a single piece of evidence based on which a

4 reasonable trier of fact would be convinced that Sljivancanin was aware

5 that by committing -- by participating in the evacuation of the hospital

6 he would demonstrate that he was aware of the acts committed by main

7 perpetrators, principal perpetrators.

8 Now I will say a few words about the command responsibility. In

9 its decisions this Tribunal established clear criteria that are needed in

10 order to come to the conclusion that the accused had a command post and

11 that he, as a result of that, has command responsibility. These are the

12 well-known requirements stated in the appeals judgement in the Celebic

13 case, paragraph 186 to 198 and 266.

14 One of the elements needed, I would even say a prerequisite for

15 other two requirements, that the Prosecutor needs to prove, is that the

16 perpetrator of crimes was subordinated to the accused. This is Celebic

17 judgement, paragraph 303. Within the principle of singleness of command

18 and subordination, which existed within the Yugoslav People's Army, and

19 this was something that was frequently invoked by the experts of the

20 Prosecution, and also this was mentioned in many documents and

21 regulations, it is clear that even in the temporary chain of command,

22 there must be just one single superior, and the subordinates, those who

23 committed crimes, were under his command within the command and control

24 sense.

25 The Prosecutor is not stating that the effective control of

Page 11272

1 Sljivancanin in the evacuation itself is something that existed outside of

2 the chain of command, no. They're saying that he had a command post or

3 command function based on a temporary chain of command that was allegedly

4 assigned to him. The Prosecutor didn't provide any evidence to show that

5 this chain of command, which existed during the evacuation of the

6 hospital, and which was defined in paragraph 17 of the indictment,

7 functioned within the relationship that existed between Sljivancanin as a

8 superior, on the one hand, and direct perpetrators of the crime, on the

9 other hand, who were his subordinates.

10 Many pieces of evidence indicate that this chain of command

11 functioned within a different context at all, and it existed between other

12 people, which the Prosecutor didn't want nor could they de jure link or

13 put in the subordinate relationship in relation to Sljivancanin.

14 The Prosecutor explains the responsibility of Sljivancanin in

15 paragraph 17. They acknowledge that Sljivancanin did not have a de jure

16 command authority in the Guards Motorised Brigade, as stated in

17 paragraph 299 of their pre-trial brief. Rather, they paint this

18 fictitious picture that this temporary command function was given to him

19 by Mr. Mrksic. This is stated in paragraph 30 of the indictment and

20 paragraph 36 of the pre-trial brief.

21 In proving this factual claim, in their pre-trial brief the

22 Prosecution invokes three documents. This is footnote 57 of the pre-trial

23 brief. Two of these documents became exhibits in this case. This is

24 Exhibit 425 and Exhibit 368. The third document is still pending on the

25 65 ter list. It is marked 573. All of these documents are reports of the

Page 11273

1 Operations Group South, and the dates are 15th of November for one

2 document, and two documents are dated the 22nd of November -- or 21st of

3 November, 1991.

4 Correction for the interpreters: Line 7, page 38, two documents

5 are dated the 21st of November. These are the exhibits that I mentioned

6 that you can check.

7 With all due respect for the tactic used by Prosecution in order

8 to interpret the documents, it remains completely unclear to the Defence

9 what is it that the Prosecutor found in these documents that would be

10 related to the alleged command position of Sljivancanin. Not a single

11 piece of evidence led during the trial could convince a reasonable trier

12 of fact that this claim of Prosecution is correct. De jure a command

13 function is a formal function, and there must be strong incontrovertible

14 evidence to prove this. What is beyond doubt is that in terms of his

15 function, in terms of his position, Sljivancanin was in no position to

16 exercise command. As far as we could tell, the OTP have offered no such

17 proof during their case.

18 OTP expert witness, General Pringle, in his report and in the

19 evidence he gave before the Trial Chamber deduces the command role of

20 Sljivancanin based on a witness statement mentioning him allegedly giving

21 orders in the hospital during the frisking. This is testimony by persons

22 who were in no way at all familiar with the chain of command in the Guards

23 Motorised Brigade or in OG South. The only thing that such evidence can

24 be used for, now that the OTP case has been concluded and we have a 98 bis

25 ruling session, the only thing they can suggest is a possible existence of

Page 11274

1 a de facto command function over members of the military police, and no

2 more than that.

3 As for the possibility that de facto command responsibility

4 existed at this stage of the proceedings, the Defence cannot challenge

5 that. The probative value, mutual contradiction, or failure of a witness

6 statement to convince will be the subject of a special analysis and will

7 be the subject of the Defence case. At this point in time, however, this

8 form of de facto responsibility on the part of Mr. Sljivancanin is not

9 something that we ask the Chamber to assess.

10 Based on all of the above, the Defence seeks that this Honourable

11 Chamber acquit the accused Sljivancanin on all counts of the indictment,

12 Counts 1 to 8, described as part of a joint criminal enterprise or any

13 other form of criminal responsibility under Article 7(1) of the Statute.

14 We seek that the Chamber acquit our client on all counts, Counts 1 to 8,

15 of the indictment in relation to his de jure command responsibility.

16 I thank you for your attention, Your Honour.

17 JUDGE PARKER: Thank you very much, Mr. Lukic.

18 As previously indicated, we will now break until 1.45, which is

19 the normal time to resume after lunch, and then hear the Prosecution for

20 an hour.

21 MS. TAPUSKOVIC: [Interpretation] Your Honours.

22 JUDGE PARKER: Ms. Tapuskovic.

23 MS. TAPUSKOVIC: [Interpretation] My apologies for interrupting,

24 for interrupting now, for preventing us from taking our lunch break.

25 A brief motion on the part of our Defence teams. Due to the ill

Page 11275

1 health of Mr. Vasic, we would like to be given some extra time during this

2 break to go and see him, just to inform him about everything that went on

3 in the courtroom this morning in this 98 bis hearing. As the afternoon

4 session is due to start at 1345 hours, our visit to Mr. Vasic's hospital

5 starts at 1300 hours and -- 1315 hours and lasts until 1400 hours.

6 Therefore, our motion is to start the afternoon session at 1415

7 hours, if that is all right with the Chamber and with the OTP. One thing

8 I would really like to point out is that the Defence teams would be

9 extremely grateful, should this motion be granted. Thank you.

10 JUDGE PARKER: We will resume at 2.15.

11 --- Luncheon recess taken at 11.55 a.m.

12 --- On resuming at 2.16 p.m.

13 JUDGE PARKER: Mr. Moore.

14 MR. MOORE: Thank you very much.

15 Before I commence my submission, may I just reply very briefly in

16 respect of two or three matters.

17 The first relates to two of my learned friends who complain about

18 the witnesses or observe that the witnesses that we call to some extent

19 represents an unfairness. We would submit that the Prosecution call

20 witnesses, it's for them to decide, it is their prerogative, the criteria

21 that we attempt to apply is, firstly, that the witnesses are believable

22 and are inherently truthful; and, secondly, that they are endeavoring to

23 be accurate. It does not preclude in any way at all the Defence from

24 calling any witnesses that they deem appropriate. It is a matter for

25 them.

Page 11276

1 Secondly, most of the submissions that have been made by my

2 learned friends seem to deal with the perception and the evaluation of the

3 evidence itself. In our submission, unless evidence is wholly and utterly

4 unreliable, over and above a phrase I think that this Court has actually

5 used, that an extremely negative view of the credibility of a witness,

6 Rule 98 bis proceedings are not the appropriate forum for such an

7 assessment.

8 The submissions that my learned friends have made therefore seem

9 to have two principal planks. The first is that there was or is no common

10 plan as alleged in respect of all of the defendants; and, secondly, with

11 regard to Sljivancanin and Mrksic principally, and obviously Radic as

12 well, there has not been demonstrated command and control in respect of

13 the evacuation.

14 May I just indicate to assist the Court that I will deal with

15 Mrksic and Sljivancanin, and my learned friend Mr. Smith will deal with

16 Radic, and Mr. Weiner will deal with the preliminary matter of wide-spread

17 and systematic -- the evidence of wide-spread and systematic criteria.

18 The Prosecution case itself is based on clearly circumstantial

19 evidence against all three defendants. There are instances when one can

20 see specific evidence and direct evidence, and therefore I intend to reply

21 individually, if I may, but try to interlink some of the evidence that

22 relates both to Mrksic and Sljivancanin in particular.

23 Dealing with the preliminary points, in respect of Mrksic, his

24 position and de jure powers, clearly, and I think it is accepted, that

25 Mrksic was the commander of the Guards Motorised Brigade from July 1990

Page 11277

1 until the 30th of June, 1992. And he took over command of the JNA

2 Operational Group South on the 8th of October. And there has evidence --

3 been evidence of that, Exhibit 401, and the evidence of Trifunovic. He

4 commanded over OG South. That ended on the 24th of November. And as far

5 as we're aware, the last available order signed by Mrksic as a commander

6 of OG South is dated the 23rd of November, that is Exhibit, as I say, 426.

7 The zone of responsibility of OG South covered an area of about

8 eight kilometres wide, about 14 kilometres long, which in the wider area

9 of Vukovar and described by Trifunovic, he particularised the boundaries

10 themselves, and I won't go into that. But we would submit that as

11 commander of operations or as commander of Operations Group South, Mrksic

12 had importantly the exclusive right to issue orders, to command all units

13 that included -- were included in OG South and bore full responsibility as

14 stated in the principles of the 1984 JNA brigade rules. And that was

15 explained by Trifunovic and that can be found at Exhibit, I believe, 395.

16 Again, as reflected by the two experts, Pringle and Theunens,

17 those units who were subordinated to him included regular and reserve JNA

18 forces, Territorial Defence units and paramilitary/volunteer units. In

19 particular, those units included the guards brigade, the 80th Motorised

20 Brigade, the local Serb TO and the volunteers in the Leva Supoderica.

21 We would submit that it is significant that the documentary

22 evidence and that of the witnesses such as Trifunovic and Theunens and

23 Pringle demonstrate that Mrksic had, and I put in inverted commas,

24 effective control over these nominated units until at least the 21st of

25 November, 1991, and that was at 0600 hours. That, clearly, the Court will

Page 11278

1 remember as being what I will call the resubordination order; Exhibit 422.

2 We would submit that inferentially that demonstrates that the units that I

3 have already mentioned were subordinated to him up until that time.

4 In respect of what I will call the effective control of

5 perpetrators, we would submit that Mrksic's ability to command and control

6 the other two accused, Sljivancanin, who was chief of the security organs,

7 and Radic, who was a company commander, is evident and, as far as I can

8 recollect, not disputed. I seem to remember that that is agreed fact 21

9 in relation to that.

10 So you have by all accounts and indeed agreed, I think, by the

11 Defence that there was a subordination link with Mrksic, Sljivancanin and

12 Radic.

13 Secondly, with reference to the local Serb Vukovar TO, we would

14 submit it's clear that Mrksic asserted control over them, that was

15 principally an order from his superior, Adzic, and that was an order, I

16 believe, the 12th of October, where Mrksic was ordered, and I quote, "All

17 armed units, be they JNA, TO, or volunteer units, must act under the

18 single command of the JNA."

19 That is Exhibit 89. We submit that unity and singleness of

20 command is key for the understanding of the presentation of this evidence

21 and the way that the JCE operated. There has been, in our submission,

22 consistent evidence that has been presented in respect of Adzic's order,

23 the order of the 21st of November to which I've already referred, that

24 clearly demonstrates that the local units were subordinated to Mrksic and

25 clearly under the control of Mrksic during and after the crimes that were

Page 11279

1 committed at Ovcara. There have been a number of orders in relation to

2 that, but I will not go into the particular details of those orders.

3 More particularly, when one looks at effective control over the

4 local Serb TO, and I say it's evidenced by Mrksic's ability to issue the

5 order, there is a clear indication that he nominates Miroljub Vujovic as

6 commander of the Vukovar TO. One will find that in evidence from

7 Trifunovic, which is T8210, T standing for transcript. This order made

8 official a situation which, in effect, de facto had existed since October,

9 1991 where Vujovic had replaced the previous TO commander. And again,

10 because of the SFRY doctrine -- well, perhaps I won't deal with that,

11 because that will take too much time.

12 But finally, Mrksic's effective control is also substantiated by

13 the evidence of the control of his subordinated officer, Radic, over the

14 TO itself. That effective control and the subordination under Radic can

15 be found in the following witnesses: P-022, P-024, Trifunovic himself,

16 P-002, and P-018. Contrary to what has been submitted by my learned

17 friend, we submit that there is strong evidence that Radic was in

18 effective control of these units to which were subordinated to him.

19 Thirdly, and with reference to the Leva Supoderica, that

20 detachment was led by Lancuzanin, known as Kameni, and again, Mrksic's

21 effective control over these volunteers, prior, during and after the

22 offences at Ovcara, is evidenced in two respects. Firstly by what we will

23 call consistent or supporting testimony of the witnesses such as

24 Trifunovic, P-022, P-024, P-018, and additionally, P-001. And then

25 secondly, by the orders and reports which were issued by Mrksic as

Page 11280

1 commander of OG South.

2 As I say, many of those orders continued right up until -- the

3 implementation of those orders continued right up until the time that they

4 left Vukovar.

5 We submit that one of the most probative elements or aspects of

6 the evidence of his control over the Leva Supoderica can be seen from that

7 the unit was, in fact, subordinated to Mrksic's subordinate, and

8 secondly -- and that being Radic, and secondly that Radic admitted to

9 this when he was interviewed about the conflict by a journalist and

10 answered to the question: "Who were your soldiers?" Answer: "At one

11 point there were about 500 people of different nationalities with

12 different party affiliations in the company which I commanded. There were

13 active servicemen, volunteers, reservists, Chetniks and Serbian

14 volunteers. I had to unite them under one command to ensure success. And

15 this was achieved with hard work at all times of the day."

16 That quotation can be found in relation to Exhibit 353.

17 Therefore, we would submit, in conclusion in relation to that

18 topic, that there is evidence that Mrksic had effective control over the

19 units who were responsible for the murders at Ovcara on the night of

20 the 20th.

21 May I deal with, I think, the submission of the Defence in respect

22 of his participation and knowledge. As I've already submitted, Mrksic

23 clearly held a position of authority over those who committed the crimes,

24 although clearly there is no evidence of him directly ordering the crimes.

25 We accept that. That is perfectly true. What we submit is that when one

Page 11281

1 looks at the circumstantial evidence that exists in this case, that his

2 behaviour drives one to the inescapable conclusion that his clear

3 intention was the persecution of the evacuees from the hospital itself.

4 We would submit that Mrksic himself demonstrated, my words, a ruthless

5 disregard for the fate of the prisoners, and we rely on the following:

6 That there is not one significant piece of evidence that demonstrates his

7 concern for these evacuees, nor is there any order issued by him directly

8 reflecting the fears and concerns of his superior Zivota Panic. And we

9 would submit that that is a very cogent piece of evidence. It is the

10 omission that we would submit drives one to certain conclusions.

11 In the context of the joint criminal enterprise, Mrksic's

12 behaviour was such that it would be a logical inference that he intended

13 the persecution. There was clearly a large amount of inaction by him,

14 despite the notice which he received in various forms from various

15 individuals, and, as I say, demonstrating that he did not care at the very

16 least, and we would submit supports the allegation of his direct and

17 intentional involvement.

18 May I just deal with what I will call the six heads of notice, and

19 I will refer to them in due course as well.

20 Firstly, we know from Pringle that the general situation was

21 tense, that there had been fighting of a form that would clearly cause

22 concern to any observant commander. Secondly, there was the notice from

23 Zivota Panic, Exhibit 415, which we would submit, using good old-fashioned

24 English, demonstrated as plain as a pikestaff that there was significant

25 concerns, not only that behaviour would occur, or bad behaviour would

Page 11282

1 occur, that behaviour had already occurred with subordinated local units.

2 It is the fact that it is not just a fear. We submit that in actual fact

3 Zivota Panic's document shows quite clearly that it had already occurred

4 in other areas.

5 Thirdly, and I accept that there are evidential constraints in

6 relation to this, but Vujic gave evidence and said that Tomic had spoken

7 to Mrksic on the 20th about the behaviour, I believe, at the JNA barracks.

8 I understand the evidential constraints in relation to Tomic; however, it

9 is there in the form of Vujic's account.

10 Fourthly, Vujic himself gave very specific evidence about the

11 notice at what had been occurring at Velepromet. And the Court will have

12 in mind, and I perhaps don't need to repeat what was said, but if he is to

13 be believed, and that's a matter for the Court, then it is perfectly plain

14 that the notice that was given to Mrksic preceded in time, namely

15 the 19th, a situation where that which Panic had feared was actually

16 occurring within his own zone of responsibility, and as such he was under

17 a duty to react immediately.

18 Fifthly, we have got Vojnovic who gives evidence that on the 20th,

19 as a direct consequence of his accidental visiting Ovcara and what was

20 occurring, he had attended a briefing that evening or early afternoon, if

21 that is a contentious point, but clearly he put Mrksic on notice in

22 respect of that.

23 And then sixthly, that Vukosavljevic also -- who was the security

24 organ of the 80th, also attend slightly after Vojnovic had spoken to

25 Mrksic and he himself had indicated to Mrksic his particular concerns.

Page 11283

1 What is perfectly clear is that Mrksic did nothing. The phrase I

2 think that was used by Vojnovic was that Mrksic did not want to be

3 bothered with these sort of things. What can be submitted of course, but

4 here we are at 98 bis submissions, what can be submitted is, well, this is

5 perfectly capable of demonstrating a failure to prevent under the 7(3)

6 obligation. But in our submission one has to look at the totality of the

7 evidence itself. Because there is a continuous and repetitive theme and

8 it demonstrates quite clearly that Mrksic himself did absolutely nothing.

9 And the Court is perfectly entitled, perhaps not at this juncture, to say

10 why not.

11 Mrksic was clearly responsible for carrying out the evacuation.

12 It has been submitted that he was unaware about the evacuation itself. In

13 our submission, that is not correct. There is clear evidence, not only

14 from Bosanac, but also two other areas, and hopefully I will locate them

15 in a moment, that demonstrate that Mrksic was aware that an evacuation was

16 to occur. That was a private conversation with Bosanac on the 19th of

17 November. Also, of course, there is documents from his superiors

18 indicating quite clearly that he had responsibility for the hospital

19 itself.

20 The order that Mrksic issued on the morning of the 20th instructed

21 his subordinates to, and I quote, "Evacuate and transport civilians, the

22 wounded and the sick from the hospital in Vukovar." Again, we would

23 submit, bearing in mind the publicity and the circumstances at that time,

24 it was perfectly obvious that an evacuation was to occur and that in

25 actual fact he was aware of the obligations imposed upon him by what has

Page 11284

1 been called often the Zagreb agreement.

2 The fact that Mrksic put Sljivancanin in charge of the evacuation

3 does not remove his military and personal responsibility.

4 Theunens, in his evidence, stated that a commander can delegate

5 some of his powers, but he still remains responsible for the work of the

6 officers to whom he transfers some of his rights. And we would equally

7 submit that Pringle was actually firmer in relation to that topic, that

8 the obligation and duty which is imposed upon Mrksic as a superior

9 commander is ongoing. And to some extent it reinforces the old adage that

10 one can waive a right but one cannot waive a duty, and Mrksic had a duty

11 in relation to this evacuation and other matters.

12 Again, Mrksic was quite aware of the existence and contents of the

13 evacuation. The evidence of Trifunovic is firm on that. Trifunovic

14 stated on the 19th, in the evening, it was agreed with Dr. Bosanac to

15 carry out the evacuation of the hospital. And there is again, we would

16 submit, matters in relation to that.

17 So when one looks at the chronology of the events, Mrksic knew,

18 and he had reasons to know that troops subordinated to him had not only

19 the propensity but later on certainly were committing violent and wicked

20 acts. And that quite simply, they were committed by units that were

21 directly subordinated to him.

22 May I just deal with the situation that was prevailing in his zone

23 of responsibility, because again there seems to be a submission in respect

24 of that. We would submit that Mrksic was well aware of the situation that

25 was prevailing in his zone of responsibility.

Page 11285

1 If I just digress, Pringle himself indicated that a commander has

2 a double duty. He has a duty to ensure that within his zone of

3 responsibility he is aware of what is occurring, and of course there is an

4 obligation to ensure that all matters are reported to him. That is the

5 purpose of singularity or unity of command.

6 Trifunovic testified that problems were reported on all three

7 days, meaning the 18th, 19th, and the 20th, indicating that verbal abuse,

8 physical assaults by local population and TO members were occurring. And

9 again, Trifunovic indicates that Mrksic was aware of these problems. He

10 was told about them, and he was told about the problems by commanders of

11 his subordinate units and also by the Chief of Staff as well as the head

12 of security. One obviously bears in mind that the Chief of Staff, there

13 is two pieces of evidence to demonstrate that Panic was actually at

14 Ovcara; one, there is evidence from a witness who was nearby, and I will

15 come to that in a moment; and secondly, there was evidence that Panic had

16 spoken to Vojnovic in conversation and indicated that he was actually

17 there.

18 Again, in relation to what was to occur for the joint criminal

19 enterprise, one of the most important pieces of evidence is the evidence

20 of 017. Because on the afternoon of the 20th the contentious time is

21 somewhere between 2.30 and 3.30, and the time is important, that 017 gave

22 evidence that a JNA soldier, he was described as neat and clean-shaven,

23 requested that a hole had to be dug in the proximity of Ovcara.

24 Dimensions were given, and the person who drove the vehicle remembered

25 seeing four or five buses outside the Ovcara hangar at the relevant time.

Page 11286

1 He said that he saw the civilians being unloaded, and by the time he

2 returned there was only a group of soldiers outside the hangar itself.

3 We submit that the timing is crucial, because it coincides with

4 the arrival of the buses, and we would submit it clearly demonstrates an

5 intention to kill. Because there is no other purpose for a hole to be dug

6 in respect of that dimension.

7 And if memory serves me correctly, the number of bodies that were

8 actually found in that grave were 198, and when one looks at the

9 operations log, I think of the 80th Motorised Brigade, I think it's

10 1800 hours on the 19th, there is reference, I believe, to 200 people to be

11 expected to be taken from the hospital. In any event, we would submit

12 that that is a very important piece of evidence because the description

13 itself tends not to suggest either a TO or irregular person.

14 As I've already indicated, on the evening of the 20th Vojnovic and

15 Vukosavljevic spoke to Mrksic about what they had seen had occurred.

16 Again, dealing with what I will call notice, but also

17 demonstrating direct control by Mrksic, there was evidence that Captain

18 Vezmarovic, who was the commander of the 80th Motorised Brigade's military

19 police company had, of course, been placed at Ovcara and he was

20 subsequently removed. We would submit that his evidence really strikes

21 not only at Mrksic, but also at Sljivancanin, because quite clearly here

22 the person who informed him is Karanfilov, who was security organ and

23 directly subordinated to Mrksic/Sljivancanin, and also the presence of the

24 other officer, namely Vukasinovic. And Vukasinovic himself was also

25 directly linked to Sljivancanin. He was his immediate subordinate.

Page 11287

1 So we would submit that there is very clear and cogent evidence

2 that two senior officers who were directly subordinated to both Mrksic and

3 Sljivancanin were present at Ovcara not only when people were being

4 attacked, but also, and we would submit this again is an important piece

5 of evidence, in relation to witness 001, who we would submit arrived after

6 the military police company had departed. And it was there that he met

7 Vukasinovic and stayed for 10 or 15 minutes and then was told to leave.

8 It is accepted, of course, that he said that it was possible that it was

9 the 18th, but we know the 18th was the Mitnica evacuation without problem.

10 We would submit there is clear evidence it was the 20th, and as

11 such he is probably the last witness in the chain of time demonstrating

12 that both Vukasinovic and Karanfilov were both there. And, again, at that

13 time he describes seeing terrified expressions on the faces of people and

14 the proximity of gun-fire, although it is quite clear and it is accepted

15 by the Prosecution he could not say definitively where it was coming from,

16 although I seem to remember he said approximately 500 metres.

17 Again, dealing with one of the complaints of my learned friend, on

18 the 21st of November, the grave digger returned to his place of work, and

19 he was told on that occasion that it would not be necessary to fill in the

20 hole because that had already been done.

21 Complaint is made that in actual fact there is no such reference

22 to bulldozers. We would submit that there is reference to that. And

23 there is also reference to 001 who indicated that he had a conversation

24 with another officer from the JNA who had indicated that the graves had

25 been covered at Ovcara throughout that period by a bulldozer.

Page 11288

1 Again, if I may just briefly deal with it, because of, as I say,

2 time constraints, the failure to prevent and punish crimes. We submit

3 that from Pringle, from Theunens, from Trifunovic, and from others that

4 there was clearly a well-defined functioning command and control system

5 with information orders flowing up and down the chain of command and is

6 also something that the Court may take into account. This is no average

7 regiment. This is the elite of the elite, where discipline is paramount.

8 And in respect of that, we would submit that there clearly demonstrate --

9 or is demonstrated that there is not a single piece of evidence

10 demonstrating that measures were taken either to prevent the crimes or to

11 punish the perpetrators and that there were no measures taken to punish

12 those perpetrators that were subordinated to. We rely on 022 and

13 Trifunovic in respect of that.

14 May I move to Sljivancanin, although they don't necessarily break

15 into two component parts, and there is much overlap and I apologise for

16 that. But may I deal, please, with his position and de jure part. Again,

17 he was appointed chief of the security organ on the 12th of August, 1991,

18 and he stayed in that position until the 2nd of September, 1992. As of --

19 Mrksic remained commander, as I say, of the Guards Motorised Brigade until

20 the 30th of June, 1992.

21 Consequently, again, we submit that Sljivancanin was subordinated

22 to Mrksic from the 12th of August, 1991 until September 1993. And

23 furthermore, Sljivancanin was subordinated to Mrksic under different

24 functions. That you will find, I think, in relation to admission 21.

25 Sljivancanin himself, his function as chief of the security organ

Page 11289

1 consisted of counter-intelligence work, the provision of expert management

2 to the military police units, and expert advice to the commander in the

3 use of military police. In terms of legal powers, it's, I think, common

4 ground that the security organ had no de jure command responsibility under

5 the regulations. However, we would submit that it was always within the

6 power of Mrksic to order Sljivancanin in relation to various tasks. And

7 we again submit that there has been evidence presented before the Court

8 that show that Sljivancanin acted far and wide beyond the scope of a

9 security officer, and we submit that it implies the existence of command

10 responsibility.

11 Furthermore, as of the 19th of November there is evidence that

12 shows that Mrksic and Veselin Sljivancanin with de jure command

13 responsibility over all the members of the forces that participated in the

14 OG-led evacuation, respective detention of individuals, that were taken

15 from the Vukovar Hospital and unfortunately murdered on the night of

16 the 20th and early morning of the 21st.

17 Therefore, we would submit that there are two issues that have to

18 be determined. Firstly, can command responsibility be delegated to a

19 subordinate such as Sljivancanin; and secondly, did Mrksic delegate or

20 vest these powers in Sljivancanin.

21 May I deal, please, with the first matter, whether in actual fact

22 powers relating to command and control can be delegated.

23 We submit that there has been extensive evidence on this point.

24 We submit that the security officers can indeed exercise command

25 responsibility prerogatives like any other JNA officer. There has been

Page 11290

1 evidence presented of the security organs giving assignments to members of

2 the Guards Motorised Brigade other than security officers, I rely on 001

3 in relation to that, or the possibility of being empowered with the

4 authority of commanding officers by the commanding officers themselves.

5 We submit the security officers can perform documents beyond their

6 prescribed roles by being put in charge of different military activities

7 or even command positions.

8 For example, we know that Vukasinovic, who was subordinated to

9 Sljivancanin, was appointed commander of the town of Negoslavci on the 9th

10 of November. And that was based on an order of Mrksic. Again,

11 Trifunovic, who was the author of the diary, confirmed that Mrksic had the

12 ability to vest command powers in Vukasinovic and -- as a result of the

13 order that Mrksic had issued. Therefore, as a former Guards Motorised

14 Brigade officers had confirmed, security organs, although JNA regulations,

15 they did not have de jure responsibility, could be empowered with that.

16 And we would again suggest that the Prosecution submits here that

17 what indeed happened, by example with regard to Vukasinovic, happened on

18 the 19th, 20th of November, when Mrksic put Sljivancanin in charge of the

19 evacuation of the Vukovar Hospital.

20 As to the second issue which has to be addressed, and that is

21 whether Mrksic, in fact, did delegate these powers, we submit that in

22 actual fact that Vujic himself in his evidence indicated that that had

23 actually occurred. That Sljivancanin had the responsibility for the

24 evacuation generally, which, of course, included the hospital. Numerous

25 witnesses, patients and people staying at the hospital also confirm, we

Page 11291

1 would submit, the exercise of the delegation of those powers. I refer to

2 them as crime-base witnesses, and I'm not going to go into them, if I may.

3 But there is a large block of evidence which suggest that Sljivancanin was

4 behaving in a way that left no one in any doubt at all, and we would

5 submit it was his clear intention to so do, that he was responsible for

6 that evacuation.

7 Again, expert witnesses have submitted that Sljivancanin appeared

8 to play a greater command role by being in charge of the organisation and

9 the conducting of the evacuation at the hospital further than one would

10 have expected from an officer in his appointment. Again, when one looks

11 at the order, it is extremely vague, which we would submit it's indicated

12 that the drafting of such orders in the way that it was done is highly

13 unusual. Clearly Pringle indicated that it was of a delicate and

14 high-profile nature, and an evacuation operation like the one in the

15 Vukovar Hospital would normally require very detailed and specific written

16 orders. That clearly is not the case.

17 Pringle said that the commander is fully responsibility for

18 everything that happens under his command, and by those under his command

19 in his area of responsibility. And finally, with regard to Sljivancanin,

20 he says that absolute authority and absolute responsibility to carry out

21 the order assigned to him in the manner ascribed by his commander, who we

22 say is obviously Mrksic, that remains responsible and accountable to his

23 commander for the proper conduct of the task.

24 So we would submit that there is clear evidence, not only from the

25 experts, but also from the crime-base witnesses that Sljivancanin had

Page 11292

1 de facto control. And if I try and read between the lines of my learned

2 friend, Mr. Lukic, that does seem to be that he accepts that. Perhaps I'm

3 wrong. If not, we submit it in any event.

4 With regard to the effective control over the perpetrators, we

5 would submit that there is again large amounts of evidence that

6 demonstrate that Sljivancanin did have control over them. That he not

7 only had de facto, he had de jure command and control over those

8 perpetrators who committed the crimes at Ovcara and also at the Vukovar

9 Hospital and that he exercised the prerogatives that were given to him.

10 On the 20th of November, Sljivancanin had two encounters with the

11 representative Borsinger. The Court have heard that. But it's perfectly

12 clear that Sljivancanin was dealing, or was behaving in a way that

13 demonstrated quite clearly that he was de facto in charge. Furthermore,

14 Sljivancanin prevented the representatives of the ICRC and the ECMM from

15 visiting the Vukovar Hospital in the early hours of the 20th. And indeed

16 there is suggestions and the document from the ICRC -- no, the ECMM on

17 the 19th that there was a blocking of Sljivancanin getting to the

18 hospital -- I beg your pardon, a blocking of the ICRC getting to the

19 hospital on the 19th.

20 Secondly, we have presented evidence that in the early afternoon,

21 once the selection and first evacuation had taken place, that the media

22 was finally gained access to the hospital compound, and there there was an

23 argument. Clearly there was a suggestion that Sljivancanin had breached

24 the agreement. And so we would submit that Sljivancanin, in all

25 probability, wanted to avoid the Mitnica surrender, which had been

Page 11293

1 conducted under the presence of the international observers and fully

2 covered by the media.

3 Again, when one looks at his behaviour at the hospital on

4 the 20th, one can see that Sljivancanin is accompanied by regular JNA

5 soldiers, reservists, members of the local TO, when he called the hospital

6 staff. Again, there is a selection process, and Captain Radic is clearly

7 involved in that. What we would submit is there are two particular parts.

8 One, the lie that Sljivancanin told to the witness when she asked what was

9 happening to the men, that he said that they were merely going to go to

10 the JNA barracks to be interviewed and then they would join the ladies on

11 their way, I think to Sremska Mitrovica. That was clearly a lie, there

12 was never any interviews at the JNA barracks, and it was a way for

13 Sljivancanin to placate persons who may have created problems for him.

14 Secondly, in relation to the hospital, and perhaps one of the most

15 important pieces of evidence in the case, we would submit, is what I will

16 call the reselection process which occurred when individuals who had been

17 evacuated to the JNA barracks had been taken out of the buses and sent

18 back to the hospital. When they were brought back to the hospital, there

19 was a second screening process. And that occurred when Sljivancanin was

20 assisted by members of the local Serb TO, that was Bogdan Kuzmic, and

21 Miroljub Vujovic. We would submit this demonstrates a clear collusion by

22 Sljivancanin where he was using individuals who clearly should not have

23 been involved in any innocent activity. Because that, of course, is what

24 has been suggested. But there has been evidence about Kuzmic's attitudes,

25 we already know about Miroljub Vujovic, and clearly this is evidence of

Page 11294

1 Sljivancanin operating hand in hand with the local TO. The reference for

2 selection was whether they were ideologically suitable, or Ustasha. And

3 approximately five or six people were put back on the bus, apparently due

4 to their alleged political affiliation as a consequence of the discussion

5 and advice given by Kuzmic and Miroljub, and the bodies of those people

6 who were put back on the bus were also found and unfortunately exhumed in

7 Ovcara.

8 The double, and in actual fact it is the treble selection

9 process. Firstly, at the hospital; secondly, at the JNA barracks, where

10 the buses were used as nothing more than mobile prisons with TO behaving

11 outside in an appalling and intimidating way; and then, thirdly, the

12 reselection process clearly demonstrates that there is a policy to deal

13 with certain individuals. Here there is also the assistance of Radic and

14 as I say the local Serb TO, and we would submit it indicates or

15 demonstrates the required mens rea or intent for the crimes charged.

16 Indeed, it also puts into evidence the wide-spread and systematic

17 targeting of civilian population of Croat and non-Serb ethnicity

18 consistent during all the attack, this time at the Vukovar Hospital.

19 THE INTERPRETER: Could counsel please slow down a little bit.

20 MR. MOORE: We would submit that Sljivancanin had not the

21 authority to select the alleged defenders. There is evidence from

22 Trifunovic that under the regulations that, and I quote, "The

23 establishment of the identity or status of captured members of enemy armed

24 forces is in the competence in specially designated military authorities."

25 As I say, it demonstrates his use of the local TO with local

Page 11295

1 knowledge, it demonstrates his closeness to the local TO performing the

2 task of selection, and reinforces the Prosecution argument that he was in

3 command and control of the evacuation.

4 We would submit, and I will try and abbreviate as best I can,

5 that, again, at the JNA barracks Sljivancanin was seen there holding a

6 heated argument with Vujanovic and Vojnovic. And indeed we would submit

7 that 009, the witness that we would reply upon on that, we would also

8 submit that it's actually logical for Sljivancanin to be present, because

9 if he is in charge of the evacuation it has a beginning and presumably an

10 end.

11 Again, at Ovcara there is evidence that Sljivancanin was there.

12 We again rely on -- may I just check my reference, one moment, please.

13 Yes. There is evidence that he was there. That is the witness

14 Zlogledja. And there is also evidence that he could have clearly issued

15 an order that he witnessed the beatings and did nothing to prevent them.

16 From memory, there are two people who saw him at Ovcara. I've already

17 dealt with Vukasinovic, and I've already dealt with Karanfilov.

18 With regard to corroborating evidence, there was a military

19 witness who was told -- 001 was told by another JNA officer who apparently

20 had been present at Ovcara that Mrksic and Sljivancanin had ordered the

21 killings and Sljivancanin and Radic organised the evacuation.

22 Can I try and abbreviate it in this way, that the responsibility

23 vested in [sic] Mrksic on Sljivancanin with regard to the evacuation was

24 consistent with the role that Sljivancanin adopted. And again, to try and

25 demonstrate examples of effective control, there is evidence on the 19th

Page 11296

1 of November, when Okun and Vance arrived, that Sljivancanin was there

2 acting in a role that led everyone to believe that he was in charge. I

3 don't seek to rely upon, for this purpose, the fact that Sljivancanin

4 apparently drew his rifle against Vance, but clearly there is evidence

5 that he is acting in that way.

6 In the afternoon of the 19th, Sljivancanin was in charge of the

7 first evacuation from Vukovar Hospital to Velepromet. Again, according to

8 numerous witnesses, P-007 and Bosanac. Again, there was another argument

9 with the ICRC representative which I have already referred to. He was

10 present in Negoslavci, together with the ICR representative Borsinger when

11 he showed the ECMM representatives around, making sure that they would not

12 gain access to the hospital. And so we would submit that there is a large

13 amount of evidence to demonstrate that he had de facto control actually

14 over a period of time.

15 From the 12th until the 18th of November, again there is evidence

16 principally from 002 that Sljivancanin was the person who was involved and

17 giving the impression of being in charge. He was the person to be

18 contacted by a foreign journalist if he wished to be granted permission to

19 shoot film in the principality itself, or in the municipality, sorry.

20 That is from Van Lynden. Sljivancanin assigned the journalist a unit

21 headed by 001. Again, Sljivancanin was engaged in monitoring the

22 situation and inspection of what was going on. Trifunovic gives very

23 clear evidence about that, where he says, quite simply, provided an

24 insight into the status and degree of accomplishment of the assigned task.

25 That relates to the war diary. And so there is an inference that if he is

Page 11297

1 inspecting, and quite simply that is one of the principal hallmarks of

2 command and control, and Pringle also referred to that. And then there is

3 evidence about him correcting fire.

4 And finally, there is reference to Sljivancanin introducing to

5 Vojnovic members of the local TO and saying that they were important

6 people in the Territorial Defence. I will exclude, and I'm sorry if I'm

7 running over my time. I will try and deal with it very quickly.

8 With regard to his participation and knowledge, he was on notice

9 about the local Serb TO. He was well aware of the undisciplined nature of

10 the units themselves. Again, I have already referred to his control at

11 the hospital. Again, when it came to the Velepromet facility,

12 Sljivancanin had indicated that it was within the zone of responsibility

13 of OG South, and one will not forget what Vujic had said, but that when he

14 was on his way to Velepromet, that Sljivancanin had uttered the

15 words, "Don't be surprised if you see Chetniks slaughtering Ustasha." We

16 would submit at 98 bis proceedings that is an important piece of evidence

17 demonstrating a clear agreement with a course of conduct to parties who

18 were subordinated to OG South. When Vujic informed him what was happening

19 at Velepromet, Sljivancanin's reaction was basically nothing except the

20 words "mission completed."

21 In respect of other matters, Radic, as I say, Mr. Smith will deal

22 with that. Witness Trifunovic said that Sljivancanin, he was always,

23 practically every day -- yes, he was always, practically every day at the

24 front lines of contact with the enemy as a senior officer and security

25 organ senior officer, that was not his duty. And he was often at Stanko

Page 11298

1 Vujanovic's house, which was considered to be one of the local Serb TO

2 command posts. We rely on P-002, P-018 in relation to that evidence. And

3 we would submit that there was clear interaction by the local TO, and he

4 had the opportunity of being informed of the different reports and orders.

5 So again, we would submit that there is clear evidence in relation

6 to Sljivancanin and Mrksic's involvement in respect of the allegations

7 that arise in the indictment.

8 Your Honour, I have run slightly over time. I apologise for that.

9 May Mr. Smith now deal with the case against Radic, please.

10 MR. SMITH: Good afternoon, Your Honours.

11 Your Honours, I'm making a brief response in relation to the

12 motion put forward by the Radic defence.

13 First, the first point is that the Prosecution, as my learned

14 friend has just stated, is that the standard that was put forward by

15 Mr. Borovic in relation to the 98 bis, that -- namely that the credibility

16 of witnesses and inconsistencies or contradictions between the evidence of

17 Prosecution witness is more appropriately addressed at the closing of the

18 case. And as my learned friend has also put forward, if it is the case

19 that a witness's evidence is to be rejected by the Trial Chamber, it

20 really needs to be at a level that is really incapable -- incapable of

21 belief or so unconvincing that no jury could convict on it.

22 Having that in mind, Your Honour, I would submit that the

23 witnesses that have given evidence in relation to Mr. Radic certainly do

24 not fall within that standard. And moreover, I would submit that the way

25 that the evidence should be looked at at this stage should be in its

Page 11299

1 totality rather than in isolation. As we can see in the case of Radic,

2 there is a number of areas in relation to his effective control over the

3 units at Ovcara and in relation to his knowledge of the likelihood that

4 his units would commit crimes at Ovcara, evidence in relation to his

5 participation in the evacuation and the transfer of prisoners to Ovcara,

6 where they were ultimately killed, and evidence in relation to his

7 knowledge as to what, in fact, happened at Ovcara after -- after the event

8 is corroborated by a number of the Prosecution witnesses. And as a

9 starting point, I would ask that that be borne in mind by the Trial

10 Chamber.

11 Your Honours, before I commence highlighting and perhaps

12 illustrating some of the main evidentiary points that would support a

13 dismissal of the motion by the Defence Radic, I would just like to make a

14 brief remark about the crime-base evidence itself. Mr. Radic's [sic]

15 motion isn't largely based on the underlying crimes but on his client's

16 participation in them. But in relation to the underlying crimes, I think

17 it was put forward by Mr. Domazet, that we -- the Prosecution has only

18 provided solid evidence in relation to 200 victims being killed at Ovcara,

19 not 264 as outlined in the indictment. That is -- that is correct in the

20 sense that 200 bodies were found at Ovcara.

21 As Your Honours would be aware from the evidence of Dr. Strinovic

22 and Mr. Grujic, that 190 of those bodies had been identified and are

23 contained in the Annex A to the indictment. There were two further

24 identified that were identified after the indictment was issued, and eight

25 are still remaining to be identified. In effect, that leaves 74 people in

Page 11300

1 Annex A that haven't been identified as being killed at Ovcara.

2 In relation to that, Your Honour, I would like to put forward the

3 fact that when witnesses testified at the trial, a number of witnesses

4 stated that of those 74 at least 11, or the totality of their evidence is

5 that at least 11 of those witnesses -- 11 of those victims were either

6 identified at Ovcara in the hangar or, alternatively, on the bus, or on

7 one of the buses that left Vukovar Hospital and subsequently ended up at

8 Ovcara. And if I can briefly state their names. The victims that there

9 has been evidence to establish -- that evidence has established that are:

10 Ante Bodrozic, Zorislav Gaspar, Milan Grejza, Damir Kovacic, Drago Krizan,

11 Josip Mikletic, Ceman Saiti, Damjan Samardzic, Zvonko Vulic, Viktor Horvat

12 and Karlo Fitus.

13 So, Your Honours, the Prosecution would like Your Honours to take

14 that into account in deciding whether or not there has been enough

15 evidence to support the fact that those men were killed at Ovcara, and

16 it's the Prosecution's submission that there is enough in relation to the

17 98 bis standard.

18 As far as the other 70 -- the remaining of the 74 that haven't

19 been identified at Ovcara, neither in the grave or by other witnesses, the

20 Prosecution would like the Court to note that a number of those people

21 were identified as missing from the Vukovar Hospital on the 20th of

22 November in the missing person's reports. And -- and as well a number of

23 the victims, at least 16, as Your Honours have heard, have been found in

24 other graves. But in relation to the 190 plus the 11 victims that I have

25 mentioned, I would submit that the Prosecution has proved to the

Page 11301

1 appropriate standard that those people were killed at Ovcara.

2 Your Honour, if I can now turn to a submission in relation to

3 Radic's responsibility under Article 7(1) and 7(3). I will reduce the

4 evidence that forms the core basis of his liability to some core

5 evidentiary topics, and in doing so I hope I address the questions raised,

6 or the doubts raised by my learned friend, the topics being evidence of

7 Radic's effective control over the perpetrators, his participation in the

8 evacuation and transfer of the detainees that were killed at Ovcara, his

9 knowledge or other knowledge of the likelihood that these crimes would be

10 committed by his subordinates, and his knowledge that these crimes in fact

11 were committed by his subordinates and his failure to prevent and punish

12 the perpetrators. Having established an evidentiary basis for these core

13 issues, it is our submission if Your Honour accepts that that evidence has

14 been placed before you, that both theories of liability under Article 7(1)

15 and 7(3) are substantiated.

16 In relation to Radic's effective control over the perpetrators

17 that beat and killed the Croats and non-Serbs at Ovcara, the best evidence

18 in relation to his effective control is, in fact, what's been mentioned by

19 my learned friend, Mr. Radic's own admission to a journalist,

20 Mr. Kacarevic, that spoke to him four days after the killings.

21 In that magazine he stated that he commanded up to 500 men, and

22 then he stated after he reorganised the troops he then managed or

23 commanded a unit of up to 300 men. This statement was unchallenged by the

24 Defence, and perhaps provides the most probative evidence as to what

25 Mr. Radic's role was in Vukovar.

Page 11302

1 Also, in that article Mr. Radic responded to a question, "What

2 exactly happened when Vukovar fell?" He stated that he reorganised from

3 500 to 300 and then they were able to take street by street, block by

4 block more effectively ground in Vukovar, and that's how it fell.

5 So in my submission, even on that statement alone by Mr. Radic, it

6 can be inferred that on his -- on his own words, that he commanded the

7 Leva Supoderica unit, the TO volunteers, and the guards brigade company

8 right up until the Vukovar -- Vukovar fell, on his own words.

9 As far as who the perpetrators of Ovcara were, it's -- that

10 evidence was provided by P-022. He clearly stated that the commanders of

11 the Leva Supoderica unit, the commander of Miroljub Vujovic's unit,

12 which -- being Miroljub Vujovic, Milan Lancuzanin and about 16 or 17

13 others, most of which by the tendering of the judgement today can be seen

14 to have been convicted at the Belgrade court for the killing of these

15 people. The people that committed the crimes at Ovcara weren't just any

16 members of Radic's unit, they were the commanders of -- of the units that

17 he commanded. And in terms of knowledge as to -- Radic's knowledge as to

18 the killings, that is an important detail.

19 As far as the accused's effective control over the assault group

20 or unit that he commanded which he states in his interview, this is

21 supported by other witnesses. It is supported by P-022, (redacted)

22 (redacted). It is also supported by P-018, another member of his

23 company. It's also supported by P-024, a member of the Leva Supoderica

24 unit that was fighting in Vukovar.

25 The effective control can be seen -- or the extent of his control

Page 11303

1 can be seen when P-024 was asked who was the commander of your unit, the

2 Leva Supoderica unit, and he replied it's Mr. Radic. Whether that's true

3 or not, and, in fact, it appears to be the evidence that it was the person

4 called Kameni, it certainly indicates the close proximity that Mr. Radic

5 had to these paramilitary and TO units.

6 Each of these witnesses provided independent testimony which

7 arrives generally at the same conclusion. But as to the duration of the

8 effect of the control, viewed in its totality, it is submitted that the

9 reasonable inference can be drawn from these witnesses that they view that

10 Radic had effective control over -- over the perpetrators at Ovcara up

11 until the event occurred and shortly beyond.

12 In support of this, Trifunovic, as senior guards brigade officer,

13 provided testimony that he believed that assault detachments were still in

14 existence in Operational Group South on the 21st of November, 1991. Now,

15 this was based on an order removing the Leva Supoderica from the

16 1st Battalion, or from the 1st Assault Detachment. Moreover, he stated

17 that he believed the Assault Detachment 1 was responsible for the takeover

18 of the hospital along with the military police battalion. The evidence is

19 generally clear that Radic was the assault group or platoon commander in

20 Assault Detachment 1. Supporting this contention, the Prosecution has

21 presented witnesses who, in fact, show that Radic participated in the

22 evacuation and transfer at the hospital of non-Serbs to Ovcara with other

23 paramilitaries. Corroborating the fact that Radic had effective control

24 over the assault group or platoon, which he states, including the

25 volunteers and the TO, Theunens, a military expert at the Tribunal,

Page 11304

1 testified that at the fall of -- the fall of Vukovar did not mean an end

2 to the war, and there would still be resistance pockets, as well as a

3 serious risk of revenge and retribution by members of the victorious

4 forces. He stated that as a result it would be illogical that assault

5 groups would be disbanded because command and control over all forces

6 involved, in particular volunteers and paramilitaries, had to be

7 maintained at the lowest possible --

8 THE INTERPRETER: Counsel, please slow down for the interpreters.

9 Thank you.

10 MR. SMITH: [Microphone override] -- groups and assault

11 detachments in such an unstable situation marked by a threat of revenge by

12 undisciplined TO forces largely consisting of volunteers and

13 paramilitaries would have been illogical from the point of view of the

14 former Yugoslavian armed forces doctrine.

15 That was the opinion of the expert, and that was supported by the

16 witnesses' contentions themselves.

17 The Defence contention that Radic's assault group ceased to exist

18 from the 14th of November by virtue of the combat orders of the 14th

19 and 18th of November - that's Exhibit 430 and 431 - to Tesic, does not --

20 because assault groups were not referred to in that order, it is submitted

21 that that inference is not the only inference that can be drawn from those

22 orders. Now, this can be reasonably inferred from re-examination of

23 Trifunovic, when he stated that it was prerogative of the battalion

24 commander to form assault groups and organise them as he sees fit and not

25 the brigade --

Page 11305

1 THE INTERPRETER: Could Mr. Smith please slow down. Thank you.

2 MR. SMITH: And not the brigade commander. Contrary to the

3 Defence contention, the body of Prosecution evidence supports that Radic

4 was still in effective control of the perpetrators on and after the 20th

5 of November. Having such de jure and de facto powers over these

6 perpetrators at Ovcara by formation of the assault groups within Vukovar

7 in no way mitigates Radic's responsibility to prevent and punish crimes

8 because, as the Defence puts it, he was a small-time commander or a mere

9 commander, as he puts it. In Vukovar, it's clear from the accused's own

10 statement and from his reputation in the battle-field Radic had a large

11 command role which brought with it all the responsibilities of command and

12 control that were testified to by Trifunovic, Theunens and Pringle.

13 In short, there is evidence which establishes the effective

14 control over the volunteers, TO and guards brigades, involved in the

15 killing and beating at Ovcara and Vukovar barracks, but most importantly,

16 Radic's own admissions, his actions in the field, the fact that he lived

17 at the TO and volunteer headquarters, the fact that he ordered the

18 volunteers and TO, the fact that on occasions he punished them, he removed

19 members of the Leva Supoderica unit, the evidence in totality is

20 established by many sources, some being P-022, P-024, P-018, P-002, P-030,

21 Dr. Njavro, and the military experts.

22 As to the evidence as to whether Mr. Radic participated in the

23 evacuation and transfer of detainees or residents at the hospital, a

24 number of witnesses testified to this fact. The evidence establishes that

25 Radic personally participated in the takeover of the Vukovar Hospital on

Page 11306

1 the 18th, 19th and then the 20th of November, 1991. The selection and

2 transfer to Ovcara farm of the primarily non-Serb male patients or

3 combatants who had laid down their arms where they were cruelly treated

4 and executed. Radic's involvement in the evacuation came at an early

5 stage, when he was present at the Vukovar Hospital on the 18th, and then

6 the 19th, and then the 20th, with other JNA soldiers and paramilitaries.

7 Your Honours heard the testimony of Dr. Njavro, a medical

8 practitioner, who testified that at certain points over this three-day

9 period, Radic, with paramilitaries, inspected, selected, detained, abused,

10 and mistreated people staying at the hospital. He testified that the

11 patients stated that they were abused and mistreated by Radic and a person

12 called Bogdan Kuzmic, and told by them that they would meet their end

13 because they knew what they had done in Vukovar. He testified that Radic

14 told him that the mistreatment was under the orders of or with the

15 permission of Sljivancanin.

16 Radic's presence at the hospital is corroborated (redacted)

17 (redacted), P-018, who states that he was at the hospital on the day that

18 the Ovcara massacre occurred. He testified that he was with Sljivancanin,

19 Stanko Vujanovic, another perpetrator at Ovcara, and other Chetniks.

20 Witness -- also Witness P-030, a detainee, or a defender who had laid down

21 their arms and sought refuge at the hospital stated that he was at the

22 hospital on the 20th of November and he saw Sljivancanin order Radic to

23 search prisoners that were being taken on the buses to Ovcara.

24 Mr. Radic is not only seen at the hospital on those days, but he

25 is also seen by witnesses at the JNA barracks, the last point before the

Page 11307

1 detainees were taken to Ovcara. At the JNA barracks P-030 and another

2 witness, P-024, a member of the Leva Supoderica unit, state that they saw

3 Radic present with the JNA soldiers, TO and volunteers at the barracks.

4 Witness P-030 testified that he saw him on the second occasion at the

5 barracks, selecting people from the bus by using a list, after which some

6 prisoners got off the bus, were beaten and taken to another bus.

7 After the beatings P-024 further testified that -- or testified

8 that he saw Radic in a military vehicle, a Campagnola. He saw Radic with

9 subordinates in his unit, the head of the Leva Supoderica unit, or the

10 commander, Milan Lancuzanin, Kameni, he saw him with Miroljub Vujovic, the

11 commander of the TO and volunteers' unit, and he saw him with Stanko

12 Vujanovic, commander of a TO unit, and he also saw him with Lieutenant

13 Hadzic, a platoon commander in Radic's company. All of these men have

14 been identified as perpetrators at Ovcara. All other than Hadzic have

15 been identified as killers at Ovcara, and Hadzic has been identified as a

16 beater by P-022.

17 Radic was in the vehicle with these men that led the buses away,

18 was in front of the buses, and the buses turned outside the Vukovar

19 barracks away from the town and towards the direction of Ovcara with a

20 crowd of volunteers and paramilitaries following on foot or in vehicles.

21 That's the testimony of P-024.

22 P-024 also testified there was an atmosphere of revenge and hatred

23 at the barracks, and I think the other Prosecution witnesses have made

24 that very clear, that revenge was very much something that appeared to be

25 on the minds of the TOs and paramilitaries there.

Page 11308

1 Also on that day --

2 JUDGE PARKER: Mr. Smith, you'll have to come to your conclusion

3 quickly.

4 MR. SMITH: Thank you, Your Honour. I will be brief.

5 Also on that day, Your day, Your Honour, Your Honours heard

6 evidence from P20 -- P-022 and P-018 that at the end of the day they told

7 Radic what had happened at the -- at Stanko Vujanovic's house. P-022 also

8 stated that he sent -- that Radic stated -- that Radic sent P-022 to the

9 Ovcara -- Ovcara hangar before the crimes occurred.

10 In relation to further knowledge as to the likelihood that the

11 perpetrators at Ovcara would commit further crimes there, P-022, P-024,

12 and P-018 have all presented quite significant evidence of Radic being

13 very aware of the criminal and undisciplined behaviour of some of the

14 members of the Leva Supoderica unit and also Miroljub Vujovic's TO unit.

15 Further, after Radic had received knowledge that the crimes had,

16 in fact, occurred at Ovcara, witnesses have testified, that's P-018,

17 P-022, who were both members of the guards brigade, and also

18 Mr. Trifunovic also testified that no investigations were conducted into

19 any of the people that had committed the crimes by Radic. Certainly when

20 he was in a position to do so, whilst he was in Vukovar and when he left

21 Vukovar he was still in the position to investigate and discipline members

22 of the guards brigade involved in those crimes such as P-022.

23 Your Honour, on that basis I would ask that if the evidence is

24 accepted, that those points have been established that the theories

25 of 7(1) and 7(3) in relation to Mr. Radic are supported by that evidence.

Page 11309

1 Thank you.

2 JUDGE PARKER: Thank you, Mr. Smith.

3 It was suggested, Mr. Weiner, that would you speak for a few

4 minutes. I would underline "few."

5 MR. WEINER: The fact that you gave me a few is quite kind.

6 Just very briefly. In passing, the issue of wide-spread and

7 systematic was raised. The Prosecution would submit that the large-scale

8 attack which occurred in Vukovar, the wide-scale attack which occurred

9 through Eastern and Western Slavonia and that which occurred through

10 Croatia satisfies the burden that a wide-spread or systematic attack

11 occurred.

12 As you know, in Vukovar the town was under siege, there was

13 non-stop shelling for a period of three months from land, from water, from

14 the air. This was an indiscriminate attack where civilian property and

15 civilians were targeted. In fact, witness P-002 talks about a

16 conversation he had with the people who were firing out of Borovo Selo at

17 page 10.371, and he asked them what they were aiming at, and they

18 indicated, "Come on, on what aiming? I just fire and wherever it lands."

19 There were no major military targets in Vukovar. They were

20 shelling the hospital, they were shelling the wells, they were shelling

21 people who were going to the wells with their little tin cups. There were

22 no tanks, there were no mortar or artillery battalions, no heavy weaponry,

23 no fortresses to be shelled, just a number of soldiers with light weapons.

24 This was a disproportionate attack, it was an indiscriminate

25 attack, and the damage was unnecessary. And how do we know that it was

Page 11310

1 unnecessary? Because we've heard from van [sic] Kypr who spoke to some of

2 the soldiers, and on page 3101 of the transcript they tell him that the

3 damage was unnecessary. They said that a professional army should not --

4 should have taken the city in a few days rather than a few months and

5 destroying it completely. They mentioned that they had complained to

6 General Kadijevic. This lengthy, sustained and excessive shelling attack

7 on Vukovar constituted a wide-spread or systematic attack on the civilian

8 population.

9 Although it is not dispositive of this issue, the Pre-Trial

10 Chamber in the review of indictment pursuant to Rule 61 of the Rules of

11 Procedure and Evidence, dated 3 April 1996 discussed this issue in

12 paragraphs 31 to 35, and at 32 they say based on the evidence which has

13 been presented to them these events seem to be part of a wide-spread and

14 systematic attack against the civilian population of the City of Vukovar.

15 The Prosecution would only add that there's been a great deal of

16 evidence relating to the wide-spread and systematic attack in Slavonia, in

17 the ECMM reports from ECMM witnesses, from witness 002, and if you look at

18 the extensive shelling throughout that area, the expulsions throughout

19 that area, the expulsions throughout Croatia as discussed by Dr. Wheeler,

20 by Mr. Grujic, and also by Ambassador Okun, who says in November there

21 were 200.000 displaced persons, by Christmas there were 500.000 displaced

22 persons. You can see that there was a wide-spread and systematic attack

23 against Vukovar, both Eastern, Western Slavonia, and Baranja, and all of

24 Croatia.

25 The Prosecution submits that we have established that a

Page 11311

1 wide-spread or systematic attack against a civilian population has

2 occurred.

3 Thank you for the few minutes.

4 JUDGE PARKER: Thank you, Mr. Weiner.

5 [Trial Chamber confers]

6 JUDGE PARKER: The Chamber will have a break now, resuming at 10

7 minutes past 4.00.

8 --- Recess taken at 3.42 p.m.

9 --- On resuming at 4.13 p.m.

10 JUDGE PARKER: The Chamber is delivering its decision on the

11 motions for acquittal by the Defence for each of the three accused in this

12 case.

13 Pursuant to Rule 98 bis of the Rules the Chamber is to enter, by

14 oral decision, and after having heard oral submissions of the parties, a

15 judgement of acquittal on any count if there is no evidence capable of

16 supporting a conviction. The standard to be applied in respect of each

17 count is whether, on the evidence as it stands, and taken at its highest,

18 for the Prosecution, it would be properly open to a Trial Chamber to be

19 persuaded beyond reasonable doubt to convict the accused. It follows that

20 a decision that there is evidence capable of sustaining a conviction on a

21 particular count is in no sense an indication of the view of this Chamber

22 as to the ultimate guilt or innocence of the accused on that count. This

23 is so, because at this stage of the case, the Chamber is not to evaluate

24 the respective credit of witnesses or the strengths and weaknesses of

25 contradictory or different evidence. The Chamber is required at this

Page 11312

1 stage to assume that the Prosecution's evidence is, and I quote, "entitled

2 to credence unless incapable of belief."

3 In essence, a Rule 98 bis motion will succeed if there is no

4 evidence supporting a particular count or if the only relevant evidence is

5 so incapable of belief that it could not properly sustain a conviction,

6 even when the evidence is taken at its highest for the Prosecution.

7 I have relied there, the Chamber has, on the decisions in Jelesic

8 of the 5th of July, 2001; Strugar of the 21st of June, 2004; and

9 Milosevic, 16th of June, 2004.

10 The Chamber notes that in its most recent formulation, that is

11 since December 2004, the rule requires the Chamber to enter a judgement of

12 acquittal when there is no evidence capable of supporting a conviction on

13 a particular count. This is materially different from the earlier form of

14 the rule, which turned on offences charged and a finding of the Trial

15 Chamber. On its face, the new rule does not also require evidence capable

16 of establishing each and every allegation, particular, or form of

17 liability, that is criminal responsibility, pleaded in respect of a count

18 to support a conviction on a count.

19 There must be evidence which meets the standard that we have set

20 out above in respect of every element of the offence alleged by the count.

21 This may be established, even though the evidence is not necessarily

22 sufficient in respect of some other allegations or particulars set out in

23 the indictment in respect of that count, or in respect of one or some

24 forms of criminal responsibility relied on by the Prosecution. The

25 Prosecution need only ultimately succeed in proving one of the forms of

Page 11313

1 criminal responsibility it relies on for there to be a conviction on a

2 count.

3 This approach not only accords with the rule as it is now

4 formulated, it may also be seen to be appropriate in the particular

5 circumstances of this case, in which the charges all arise from what is

6 essentially one course of conduct or event. The main conduct occurred

7 over a few hours, involving one group of detainees who were moved from the

8 hospital via one or two locations to a farm in the Ovcara area.

9 The trial is against three accused, each of whom were officers in

10 the JNA engaged in the same operational area and of whom Colonel Mrksic

11 was the overall commander. His effective command extended, at least on

12 some evidence, beyond serving JNA personnel to include reservists,

13 Territorial Defence personnel of various types, paramilitaries and other

14 volunteers, including Chetniks, who were operational in that area.

15 The Chamber therefore proposes to consider these motions on the

16 basis of the present form of Rule 98 bis, as indicated. We will not

17 consider, therefore, whether in respect of a count against an accused

18 there is evidence capable of establishing all matters alleged in respect

19 of that count, or all forms of criminal responsibility relied on.

20 The standard which must be satisfied by the evidence adduced by

21 the Prosecution, as we have outlined it in those comments, is the standard

22 that we will apply throughout our consideration of the evidence.

23 I will turn briefly to the crimes themselves that are charged in

24 the counts. This won't be done in the order in which they appear in the

25 indictment to avoid unnecessary repetition.

Page 11314

1 Torture, Counts 5 and 7; inhumane acts, Count 6; and cruel

2 treatment, Count 8, relate to events at the farm. The actus reus of

3 torture is an act or omission inflicting severe mental or physical

4 suffering of inhumane acts, an act or omission causing serious bodily harm

5 or mental harm, or serious attack on human dignity. And in respect of

6 cruel treatment, an act or omission causing serious physical or mental

7 suffering or causing a serious attack on human dignity.

8 With respect of the actus reus that are obviously closely related

9 of those three types of offence, the Chamber has heard evidence capable of

10 establishing that on the 20th of November, 1991, a large number of

11 persons, some six bus loads, so between 2 and 300 persons, were

12 transferred from the Vukovar Hospital and held for several hours at the

13 farm in the Ovcara area, by or in the presence of Territorial Defence

14 members, volunteers, Chetniks, military policemen, and other JNA troops.

15 As such, the prisoners were not taking any active part in the

16 hostilities, and the evidence shows that significant numbers of them were

17 subjected to mistreatment.

18 There is also evidence relating -- of a somewhat similar nature

19 relating to events involving some of those detainees at the barracks in

20 Vukovar. Now, I would just mention the evidence of the witnesses P-011 at

21 pages 5728 to 34 of the transcript; Hajdar Dodaj at pages 5536 to 5540;

22 Berghofer at 5291 to 5296; Zlogledja at 1.187 to 9; P-030 at 9745 to 47;

23 P-014 at 7703 to 6; P-022 at pages 503, 504, 525, 5235 and 5236.

24 The mens rea of torture is an intentional act or omission carried

25 out with a prohibited purpose. I won't list prohibited purposes; they're

Page 11315

1 settled and well-known.

2 The mens rea of inhumane acts: Intent to cause serious harm or

3 attack on human dignity or knowledge of probability that such harm or

4 attack would result. And of cruel treatment: Attempt to cause suffering

5 or attack on human dignity or knowledge of probability that such suffering

6 or attack would result.

7 The Chamber has heard evidence capable of establishing, first,

8 that the mistreatments of the Ovcara farm were carried deliberately;

9 secondly, that in some instances they were carried out for the purposes of

10 punishment or discriminating against the victim on the basis that the

11 victim was a Croat or a Croatian defender, or were carried out to obtain

12 information from the victim. It did mention a variety of evidence dealing

13 with the gauntlet, the scale of beatings, and the use of objects of

14 various types for the purpose of beatings. And in particular, the

15 evidence of witnesses P-014 at transcript page 7715; Berghofer at

16 transcript 5289; P-011 at pages 5730 to 5732; P-030 at 9746 to 7; Dodaj at

17 5540; and P-022 at 5205 to 6, and 5236.

18 The offences of extermination, Count 2, and murder, Counts 3

19 and 4, are all alleged again in the vicinity of the farm in the Ovcara

20 area. The actus reus of extermination is an act or omission resulting in

21 death of a person, and it's to be on a massive scale; and of murder, an

22 act or omission resulting in death.

23 The Chamber has heard evidence capable of establishing, first,

24 that on the 20th of November, 1991 prisoners held at the farm were taken

25 in groups to a nearby location where they were executed. Secondly, that a

Page 11316

1 large mass grave was discovered in that locality, containing around 200

2 bodies. Thirdly, that for the overwhelming majority of these bodies,

3 death was caused by gunshot, and that there were altogether a large number

4 of prisoners at that farm. As I've mentioned before, some 200 to 300.

5 And the witness P-002, at pages 10396 to 8; P-022, at pages 507 to 9;

6 P-011 at 5737 to 42; P-014 at 7724 to 5; Strinovic, 9451 to 3, 9455 and

7 Exhibit 457, 9458, Exhibit 457, and 9464 to 9465, Exhibits 459 and 60;

8 and Milewski, Exhibit 381. Examples to the evidence which I have

9 referred.

10 Could it be made clear by the Chamber, that in quoting this

11 evidence we are not suggesting that it is an exhaustive review of the

12 evidence. We are merely using these as illustrative of the evidence that

13 is available in support of the elements of each of the offence -- each

14 offence charged in each count.

15 The mens rea of extermination is an intent to cull persons on a

16 massive scale or knowledge of the probability of deaths on a massive

17 scale. And the mens rea of murder with intent to kill the victim or

18 knowledge of the probability of death. The evidence is capable of

19 establishing the deliberate nature of the executions of some 200 people.

20 First, the modus operandi, a large number, the majority of them shot in

21 the head, the scale of executions, the number involved, all in the one

22 locality, buried in a mass grave, and evidence as to the expression of

23 intention by some of the individual perpetrators. And we would just

24 mention in respect to those two pieces of evidence, that of P-022,

25 pages 5005 and 5006, and of Zlogledja at 1.190 to 91.

Page 11317

1 Persecutions, as the offence charged in Count 1. What is required

2 is a discriminatory act or omission infringing on a fundamental right.

3 Much of the evidence that I have mentioned already is capable of

4 establishing that individuals that were held at the farm at the relevant

5 time were subjected to mistreatment and that a large number of them was

6 executed. There must also be a discriminatory intent on one or more of

7 the listed grounds. And the Chamber has heard evidence capable of

8 establishing that the prisoners were mistreated and executed because they

9 were Croats or Croatian defenders. Mention as examples the evidence of

10 Strinovic at 9467; P-022 at 5006; Berghofer at 5289; Dodaj at 5537, 5539,

11 and 5540; P-014 at 7715; P-030 at 9746 to 7.

12 That, very quickly, deals with the essential elements of the

13 offences charged and the evidence that is there.

14 There's also a question raised in submissions by the Defence as to

15 whether jurisdiction under Article 5 is established. That requires

16 relevantly that there be a white-spread or systematic attack against a

17 civilian population. Now, the evidence is capable of establishing that

18 during the relevant period of the indictment and the closely preceding

19 period, the town of Vukovar and its surrounding localities was under heavy

20 shelling and that this extended over many, many weeks, in fact months, and

21 that this led to the injury and death of a large number of civilians.

22 There is also indication that this shelling in the Vukovar

23 locality is also to be seen and appreciated in the context of military

24 action in the wider Western Slavonia and indeed in the wider -- what is

25 today Croatia. We would refer in particular to the evidence of Kolesar at

Page 11318

1 914 to 9, and 927, and also at 920 to 24, and 928 to 930. The evidence of

2 Foro at 2402 to 3. Mr. Van Lynden at 3081, 3092, and 3146 to 49. That

3 should be the evidence of Van Lynden at 3081 to 3092. The evidence of

4 Agotic at 1962 and 1965 and also Exhibit P90. The evidence of Kypr at

5 6552 to 7, and Exhibit 312. The evidence of P-002 at 1.369 to 70, and

6 at 1.371 and 2. The evidence of Dr. Njavro at transcript pages 1515

7 to 1517.

8 The Chamber has also heard evidence capable of establishing that

9 the acts committed at the farm were a consequential part of that attack to

10 which I've referred and that the accused were well aware of the attack,

11 and also establishing that the events, the subject of the counts, occurred

12 immediately after the fall or taking of Vukovar, and that the material

13 events involved the same troops as were involved in the taking, and that

14 these included JNA forces, territorial forces, volunteers, and other

15 paramilitaries. The evidence would indicate that all three accused took

16 part in the takeover of Vukovar. The alleged victims who were civilians

17 were also detained when the attack and -- or the takeover of Vukovar

18 succeeded.

19 The evidence is also capable of showing that on the 19th of 20th

20 of November a large number of persons, which may have included some form

21 of combatants, had laid down their weapons, were detained, were mistreated

22 and killed by or in the presence of those various forces that I've just

23 mentioned.

24 I would also mention in passing evidence relating to events at

25 Velepromet, especially the evidence of Grujic at 4514 to 4515, 42 -- 4528

Page 11319

1 to 9 and 4568, and of events at the JNA barracks in Vukovar; in

2 particular, the witness P-009 at pages 6148 to 6151.

3 The -- I won't repeat the evidence about the alleged particular

4 events at the farm. There is also evidence capable of establishing that

5 there had been an extremely large-scale displacement of the civilian

6 population in the area, in particular the evidence of Dr. Wheeler in

7 Exhibit 391, and evidence capable of suggesting that an attack by those

8 forces was disproportionate to those against which they were poised.

9 Having dealt in that general way with those general issues, I turn

10 now to look more particularly at aspects of the evidence directed against

11 the three accused men. In so doing, as indicated at the outset of these

12 reasons, the Chamber will confine its attention simply to the question of

13 the responsibility on at least one of the bases relied upon by the

14 Prosecution as it looks at each accused. And in doing so it will look at

15 Article 7(3) of the Statute, that is, the area of responsibility known

16 usually as command responsibility. And it does so, as indicated, on the

17 basis that if there is evidence capable of sustaining this, there is

18 evidence capable of sustaining a conviction on each count.

19 The first element of Article 7(3) is effective control. With

20 respect to the accused Colonel Mrksic, there is evidence capable of

21 establishing that at the relevant times Mr. Mrksic held a position of

22 command over and the power to control the acts of some, at least, of the

23 perpetrators. He was commander of the Guards Motorised Brigade and in

24 time became also commander of the Operational Group South, as is an agreed

25 fact. He was in charge in those capacities, or particularly as commander

Page 11320

1 of the Operational Group South, of a zone of responsibility which included

2 the area of Vukovar and had control operationally over the territory in

3 which the events alleged in the indictment are alleged to have occurred.

4 And in those respects we would refer to the evidence in particular of

5 Dr. Bosanac, 675 to 6, and 803 to 4, and at 806; the evidence of

6 Trifunovic at 8127; the order issued to evacuate and transport civilians,

7 wounded and sick from the hospital on the morning of the 20th of November,

8 1991.

9 The Chamber has also heard evidence capable of establishing that

10 Mr. Mrksic had authority over the JNA, including reserve units located in

11 that zone of operations, particularly the evidence of Bosanac at 803 to 4.

12 Also, evidence capable of establishing that he gave assignments to JNA

13 commanders. In particular, at Exhibit 367, which is under seal, and the

14 evidence at pages 3 -- 7673 to 7674, the evidence of Vojnovic at

15 pages 8849, 8680, also at 7720, and at 8169 to 73. There's also relevant

16 evidence at 8825 to 6. And there I'm referring to evidence of witnesses

17 Vojnovic, Vukasinovic, Trifunovic, P-014.

18 The Chamber has also heard evidence capable of establishing that

19 Colonel Mrksic had the command authority to issue orders to all units

20 included in Operational Group South. This included all territorial and

21 paramilitary units and volunteers. We refer to the evidence in particular

22 of Trifunovic at Exhibit 395 and at transcript pages 8210, 8140; to

23 Exhibit 424; to Exhibit 89, the communication of General Adzic of the 12th

24 of October, 1991; also to the expert evidence of witnesses Theunens and

25 Pringle. And this evidence is capable of showing that that command

Page 11321

1 authority extended past the 20th of November, 1991. In addition to the

2 references given, refer to Exhibit 422, an order issued by Colonel Mrksic

3 on the 21st of November, 1991. That body of evidence, when reviewed, has

4 the consequence that effective control by Mrksic is sufficiently

5 demonstrated by the available evidence for the present purposes of

6 Rule 98 bis.

7 It must also be shown for the purposes of Article 7(3) that the

8 accused had knowledge or reasons to know of the -- that his subordinates

9 were about to commit criminal acts. And in respect of this, in relation

10 to Colonel Mrksic, the evidence of Vujic at 4512 to 3, 4567 and 4706 to 7;

11 the evidence of Trifunovic, he testified as to problems regarding security

12 of detainees from forces under the command of Colonel Mrksic, problems

13 that occurred on each of the 18th, 19th and 20th of November.

14 There is also evidence that is capable of establishing the -- that

15 the accused Colonel Mrksic was aware that his subordinates had committed

16 criminal acts at Ovcara. In particular, the evidence of Vojnovic at 8849;

17 witness P-014 at 7720; and Vukasinovic at 8681 to 8682. There is also the

18 communication from Colonel Mrksic's superior, General Panic, expressing

19 fears and concerns because of conduct of forces under Colonel Mrksic's

20 command to that time. This is Exhibit 415.

21 There must also be evidence capable of establishing that the

22 accused failed to take the necessary and reasonable measures to prevent

23 criminal acts from his subordinates. And in this respect the evidence of

24 Vujic at 4512 to 3 and at 4567 and 4706 to 7 is perhaps a sufficient

25 indication of that.

Page 11322

1 There is also evidence capable of establishing that Colonel Mrksic

2 failed to take the necessary and reasonable measures to punish the

3 perpetrators of the acts that are the subject of the counts. Evidence of

4 Vojnovic and Vukasinovic at 8849 and at 8681 to 82, also at Vukasinovic at

5 8682; the witness Trifunovic at 8172 and 8173, the absence of any steps or

6 orders of any type taken by Colonel Mrksic in response to General Panic's

7 expressed concerns to which I've referred, and the witness P-022 and

8 Trifunovic that no measures were taken to punish.

9 Those are sufficient reviews of the evidence to indicate that in

10 respect of command responsibility there is evidence capable of

11 establishing the responsibility under Article 7(3) of Colonel Mrksic.

12 Turning to the accused Captain Radic, and again looking at the

13 evidence on the basis of Article 7(3), the issue of effective control we

14 would refer to Exhibit 594, the agreed facts, Radic's command positions at

15 the time. P-022, the evidence of Vujovic, and this is at 4957 to 4961 --

16 sorry, it's his evidence about Vujnovic, the evidence of P-022 at that

17 page reference. Also P-022's evidence at 4955 to 60, 4965 to 72; the

18 evidence of P-018 at 7386, 7391 to 95, and at 4979 to 4985, and at 4981 to

19 4985; the evidence of Kacarevic at 7292 to 3, and Exhibit 353; the

20 evidence of P-030 concerning the conduct of Captain Radic, both at the

21 hospital and the barracks.

22 While this is an issue which is subject to much competing

23 evidence, as was the case with Colonel Mrksic and is also the case with

24 Major Sljivancanin, there is evidence relating to Captain Radic which

25 satisfy the standard applicable to Rule 98 bis, to establish that he had

Page 11323

1 effective control of units participating in the offences alleged in the

2 counts, and that that was so at the time that the offences were committed.

3 With respect to the requirement of knowledge, there is evidence

4 capable of establishing that Captain Radic became aware that crimes had

5 been committed at the farm during the night of the 20th and 21st of

6 November. P-022 at 5009 and 5032 to 4, P-018 at 7412 to 5, P-002 at

7 7415 -- sorry, at 10400.

8 With respect to the measures taken to prevent or to punish, P-022

9 at 5032 to 37; P-018 at 7416 to 7419; and Trifunovic at 8173. There's

10 also evidence relating to the barracks from P-024 at pages 4202 to 6.

11 With respect to the case against Major Sljivancanin, with respect

12 to effective control, there is evidence capable of demonstrating that he

13 had authority over the military police, the Guards Motorised Brigade, and

14 the military police of other units subject to Colonel Mrksic's command as

15 part of Operational Group South. We have the evidence of

16 Lieutenant-Colonel Vojnovic at 8825, and at 8827; and of Colonel Vujic

17 at 4533 to 4.

18 There is also evidence capable of establishing that Major

19 Sljivancanin had effective control over both military police and other

20 soldiers of the JNA and of other forces at the hospital, in particular on

21 the 20th of November. That is at least de facto control, but not

22 intending by that comment to exclude de jure authority. If it is accepted

23 as some evidence might well establish by way of inference that Major

24 Sljivancanin was given special command -- a special command assignment by

25 Colonel Mrksic, at least in respect of the evacuation of the hospital on

Page 11324

1 the 20th of November, 1991, that being something that was on the evidence,

2 on some evidence, procedurally proper and within Colonel Mrksic's powers.

3 Now, the evidence in this regard, particularly that of Dosen at 3800 and

4 3803 to 5, and also at 3913 to 5.

5 There is also some evidence capable of establishing that Major

6 Sljivancanin had effective control over military police and other forces

7 at Ovcara. The evidence in particular of Captain Karanfilov at 8420,

8 8432; the evidence of P-022 at 5020. With respect to knowledge, evidence

9 capable of establishing that Major Sljivancanin was aware of mistreatment

10 of detainees occurring prior to the events at Ovcara, we have the evidence

11 of Colonel Vujic at 4525 to 6 and at 4530, and also at 4526.

12 Evidence of capable of establishing that Major Sljivancanin was

13 present at Ovcara at or at about the time when the alleged offences were

14 committed, that is the evidence of Zlogledja at 10196. There's also

15 evidence of his presence at the JNA barracks with Vujanovic and Vojnovic;

16 see particularly the evidence of P-009. This is in the course of the

17 movement of detainees from the hospital to Ovcara.

18 With respect to the issue of measures to prevent, there is the

19 evidence of Zlogledja at 10196. And with respect to failure to take

20 measures to punish, we have Colonel Trifunovic at 8173 to 8174.

21 Now, it will be apparent to all that there is much other evidence.

22 There is included in that much other evidence, evidence to the contrary or

23 evidence in contradiction of what has been referred to by the Chamber in

24 this decision. It's not that we ignore that, we are well aware of it, but

25 for the reasons indicated it's not evidence that we properly take into

Page 11325

1 account and weigh at this time. And that is the significant difference

2 between our role here today and the role we must perform at the close of

3 all the evidence when we come, once again, to review not only the evidence

4 we have mentioned today, but all the other evidence in the case.

5 We are grateful to Judge Van Den Wyngaert, who has picked up that

6 in the transcript at page 82, line 3, the phrase is recorded as

7 "wide-spread and systematic attack," when I should have said, if I did

8 not, "wide-spread or systematic attack."

9 For the reasons that have been indicated, the Chamber is therefore

10 of the view that there is no basis on which it can enter judgement of

11 acquittal on any count which is set out in the indictment against any one

12 of the three accused at the present time in its consideration of the

13 requirements of Rule 98 bis.

14 It is therefore the situation that the motions under Rule 98 bis,

15 by each of the accused, will be dismissed.

16 [Trial Chamber confers]

17 JUDGE PARKER: Can we thank counsel for their assistance, and we

18 will now adjourn, and we have already indicated the future sitting

19 programme and the future programme for compliance with the pre-Defence

20 procedures.

21 --- Whereupon the hearing adjourned at 5.03 p.m.,

22 sine die