Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16030

1 Wednesday, 14 March 2007

2 [Prosecution Closing Statement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.17 p.m.

6 JUDGE VAN DEN WYNGAERT: Good afternoon, ladies and gentlemen.

7 The Trial Chamber is convening today to hear the final arguments

8 in the case of the Prosecutor against Mile Mrksic, Miroslav Radic, and

9 Veselin Sljivancanin. We informed the parties that, for urgent and

10 personal reasons, Judge Parker is unable to attend. Pursuant to Rule 15

11 bis of the Rules of Procedure and Evidence, the Trial Chamber has decided

12 to hear the closing arguments in the absence of Judge Parker.

13 Today we will first hear the closing submissions of the

14 Prosecution. Tomorrow and Friday we will hear the Defence. The Trial

15 Chamber has carefully reviewed the briefs and it will be greatly assisted

16 by them.

17 Prior to giving the floor to the Prosecution, the Trial Chamber

18 wishes to draw the parties' attention to a question that was, in our view,

19 not sufficiently addressed in the final briefs. This question concerns a

20 point of law in relation to the charges of crimes against humanity. In

21 order to constitute a crime against humanity, it has to be established

22 that the attacks and commissions charged are part of a widespread or

23 systematic attack directly against the civilian population. This is the

24 chapeau requirement for crimes against humanity. The Tribunal's case law

25 is very clear to the effect that the presence of noncivilians in the

Page 16031

1 population does not alter the civilian characteristic. What could be open

2 for argument, however, is the following: Is the question whether the

3 victims of a crime against humanity were civilians are not relevant to the

4 applicability of Article 5. In other words, is the general condition of

5 the civilian status of the targeted population that is required for a

6 chapeau requirement, is that general condition identical to the condition

7 of the civilian status of the victims of the underlying crime?

8 The Trial Chamber would like to have the views of the parties on

9 this particular point. The parties may either answer this question

10 immediately or, if they prefer, present oral -- brief oral submissions on

11 this question on Friday after Mr. Lukic finishes his presentation on

12 behalf of Mr. Sljivancanin. Okay.

13 So the floor is now to Mr. Moore.

14 MR. MOORE: May I thank the Court and I'm glad to see that

15 everyone is still here. It seems such a long time since I've actually

16 stood at this lectern.

17 May I just deal with some preliminary points that I submit are

18 important. Firstly, there is clearly a problem, and that is that the

19 problem is that the Court clearly is asked to judge a set of facts and

20 attitudes 16 years after the event. The danger that that creates is that

21 we often, unconsciously, apply the standards of today and we do not take

22 into account the intensity of feelings which had been caused clearly here

23 in what can be called an internal, or as I will call, a quasi civil war

24 set of circumstances, where, unfortunately, brutality invariably raises

25 its head.

Page 16032

1 It is in our submission important to remember the timing that the

2 Soviet bloc had just -- had ceased, but we are dealing here with forces

3 who had been taught that war should be pursued in a ruthless way. In

4 support of that submission, may I please place before the Court and my

5 learned friends several small pieces of evidence to set the context of

6 this case as a whole. The first, I hope, will be a video clip, the

7 helicopter view of Vukovar, which was taken some years after the event.

8 If that could be played, please.

9 [Videotape played]

10 MR. MOORE: We submit that this evidence clearly shows the extent

11 of the destruction and the devastation brought upon this particular city

12 and the civilian population. One just has to look at the number of

13 buildings destroyed, the totality of destruction, the extent of the

14 destruction. And as I say, this is, I believe, at least two years after

15 the conflict had ceased in 1991.

16 And this video quite literally does a full circle of Vukovar

17 itself. We would submit that that demonstrates what the JNA may consider

18 is proportionality when it comes to destruction; we submit that in no way

19 demonstrates that. Vukovar was, as had been indicated in evidence, the

20 Stalingrad of Croatia and that was its intention.

21 I would like to also refer, if I may, and read from one short

22 exhibit. I believe it's Exhibit 305. It was called the Babska

23 declaration and I --

24 JUDGE THELIN: Sorry, Mr. Moore, to interrupt. The exhibit number

25 for the video shown, I don't think we got that.

Page 16033

1 MR. MOORE: I will just -- 317 I'm told. Thank you very much.

2 I'd like to deal with the Babska declaration, and the Court may

3 remember that Babska was a small village in Croatia, in eastern Croatia,

4 and there had been a suggestion that individuals there had various

5 weapons. By 4.00 - and this is paragraph 1 of that - the JNA gave the

6 following ultimatum.

7 "By 4.00, collect all the weapons in the village and bring it to

8 Vikjaca where a body of the JNA will be waiting."

9 And this is the part that we submit demonstrates that same

10 attitude.

11 "Insofar as this is not done, your village will cease to exist on

12 a geographical map." And, again, I would submit that when you talk about

13 this document and when you talk about the video that we have seen, it

14 demonstrates a course of conduct that the JNA meted on Vukovar and the

15 surrounding area and villages, which quite clearly was intent on

16 destroying virtually everything it could lay its hands on.

17 May I deal also with the attitude that existed in relation to

18 these defendants. And I deal with Sljivancanin and Mrksic in particular.

19 I'd like to deal, if I may, please, with a video-clip, and this is of

20 Mr. Sljivancanin. We submit that it demonstrates not a man who sits

21 today, as he did previously, perhaps 17 years on, like all of us, a little

22 older, a little greyer, a little rounder, but a man who is -- and I would

23 submit that he demonstrated arrogance, he demonstrated intolerance, he was

24 a driven man, he was a loud man, and he demonstrated, I would submit, a

25 hatred of the people who resisted him.

Page 16034

1 May we play that, please.

2 [Videotape played]

3 MR. MOORE: We can do without the sound; it's not necessary.

4 The point that I wish to emphasise is one should look at the body

5 language. This is not a man who is tolerant. This is not a man who is

6 trying to compromise. This is an arrogant man. This is a man who is

7 dictating to people who are there to help, and his body language clearly

8 demonstrates that attitude. We have heard words such as "peacock." They

9 may well be appropriated. It is not for me as a Prosecutor to suggest

10 that. Of course the point in this video, as the Court is well aware, as

11 one can see now that there are vehicles going over the bridge in behind.

12 This is Exhibit 318, and the Court has seen it many times.

13 I would like also then to play very shortly Exhibit 138. Again,

14 the Court will remember Mr. Sljivancanin's words that Mr. Borsinger -- he

15 and Mr. Borsinger got on very well.

16 If this can be played.

17 [Videotape played]

18 MR. MOORE: That is not the look of a man who is willing to

19 compromise. That is a gentleman who is treating Borsinger with complete

20 contempt and any comments that Mr. Sljivancanin has made in evidence are

21 disingenuous and false and we would submit that when you look at his

22 conduct over the period of time, that in actual fact those words that I

23 suggest are appropriate are, indeed, that.

24 Two final pieces of evidence that I would seek to rely upon, just

25 to create the context of this case, is a document which is Exhibit 312.

Page 16035

1 The Court may remember it. It was Mr. Kypr. It was created on the 8th of

2 November, 1991. It was a compilation of the ECMM documents or ECMM

3 reports, where they were dealing with the issue, geographically, as a

4 whole. Clearly it precedes Vukovar and cannot be applied to that extent,

5 but, in our submission, the Court is perfectly entitled to look at other

6 witnesses who have given evidence, if they consider that documents are

7 reliable, their compilation is reliable; they can look at the content and

8 draw such conclusions as they deem appropriate.

9 In paragraph 6 of the second page, it reads as follows: "The JNA

10 systematically denied any guilt referring to the armament of the

11 population and the provocative behaviour from their side. The assumption

12 that the population was armed is mostly true. It appears, however, that

13 compliance with the ultimatum never changed. The further course of

14 events."

15 And then the following: "Attacks with tanks, artillery, and

16 armoured infantry against the unarmed or slightly armed villagers, this in

17 itself should be considered a violation of the generally accepted

18 humanitarian principles of proportionality and subsidiarity."

19 And the next part we submit is highly apposite when it comes to

20 this case.

21 Another defence of the JNA was that they could not be held

22 responsible for the behaviour of the Chetniks. "The monitor team is,

23 however, convinced that the JNA very closely cooperated with those

24 reservists and is of the opinion that the leadership of the JNA should

25 directly or indirectly be held responsible for their acts."

Page 16036

1 I would submit that this is one week before when Vukovar

2 surrendered. I would submit when you look at that and in conjunction with

3 other matters, it demonstrates, as I say, a complete attitude of the JNA

4 towards people that they consider, as we have heard, terrorists and

5 criminals.

6 And then finally this. I ask the Court just to bear in mind the

7 evidence of Ambassador Okun. He gave evidence on many topics.

8 Most of it is dealt with in our brief which is I hope fairly

9 comprehensive and extensively footnoted. But one can look at Okun and ask

10 oneself what kind of a man was he. Was he a man who had judgement? Was

11 he a man who could assess individuals? Was he a man who could assess

12 situations? And he was asked what he thought of Mrksic when he came

13 across him. And this is the evidence that he gave. It's at transcript

14 1766. He had described Mrksic as military correct but hard.

15 "Q. How did you come to the conclusion that he was hard? What

16 did you mean by that?

17 "A. 'Hard' is a polite way of saying brutal and I came to that

18 conclusion by his manner, by his manner: The briefing, the strutting, the

19 attitude, highly belligerent, not towards us. His general military

20 bearing, as I said, was quite correct, but it was also quite clear that

21 this was a hard man."

22 Because it does take there to be a hard man to commit the crimes

23 that were committed at Ovcara.

24 In the Defence brief, I believe of Mr. Lukic, at paragraph 334, he

25 indicates the following.

Page 16037

1 "There had been a clear plan that persons who were a potential

2 danger for security of the implementation of the evacuation of wounded and

3 sick for which there had been a reasonable suspicion that they had

4 participated in armed actions be separated and, via the barracks in

5 Vukovar, be transported through Sremska Mitrovica."

6 We agree with Mr. Lukic. There was a plan, but the plan was not

7 as he states. The plan was to identify, it was to isolate, it was to

8 control, it was to remove secretly, but not because of security but

9 because these individuals had been classified as criminals and terrorists.

10 And we would submit that the intention as such, should and would

11 be that they would be treated differently. The Court, I suspect, will

12 remember such phrases from individuals where phrases like: "They will be

13 swallowed by the dark," "you're not going to need those," when there was

14 reference to Dosen and his personal items. We say that that was an

15 indication of the very clear intention of what the JNA and their

16 subordinated units were going to achieve. There was a clear intention to

17 persecute this group of Croats and non-Serbs, and we submit that it can be

18 gleaned from the evidence. It can be gleaned by words expressed, it can

19 also be gleaned by lies told. And we submit lies have been told in this

20 case by these defendants and witnesses who have come to give evidence,

21 apparently truthfully, on their behalf. We can judge it by actions done.

22 We can also look at such things as absence of lists, contrary to much

23 military doctrine that has been set down in stone. And finally, by the

24 targeting of specific individuals.

25 In my submission, it begs the question. If there was concern for

Page 16038

1 the security of the evacuation, it means really one of two things.

2 Firstly, this alleged or expressed concern for the security of the convoy

3 could not be guaranteed from the threats of severe violence from the local

4 Vukovar TO. The Court may remember that. Or, secondly, that these were

5 desperate men who may have had intentions to escape, bearing in mind that

6 they were supposed to be terrorists and criminals. But we submit that if

7 there had of been a genuine explanation, a genuine fear, then why would

8 you only put two armed guards on the buses? We would suggest that it is

9 the first part of the plan, that it was intention to deceive individuals,

10 that nothing would happen to these parties.

11 The second part of the plan, because we, as I say, say there is a

12 plan, is evidence that is often forgotten, and that is the evidence of the

13 grave-digger himself. And may I just remind the Court of that evidence.

14 That was P017. He said that soldiers from the JNA had been at the Yellow

15 House since September. Therefore, we would submit, there was clear

16 control of that area by the JNA. It was clearly in the zone of the

17 responsibility of OG South. P017 was asked to dig a hole approximately

18 2.30 to 3.00 because that was the time he was finishing work. Timings

19 here are extremely difficult for obvious reasons. It's often useful to

20 try and use dark or night and day. His evidence was that he saw four or

21 five buses stationary there. It begs the question, where does that place

22 Vukasinovic's evidence, a main witness called on behalf of the Defence,

23 because Vukasinovic said they came in three by three. That was not the

24 case of the grave-digger who said that he saw four or five there.

25 He said that people were just starting to get off the bus. He

Page 16039

1 said also that the person who asked him to dig a hole was JNA. He

2 couldn't say if it was an officer, but he said the following, he said that

3 he was clean-cut, he was very neat, he was very tidy, he was clean-shaven,

4 and he believed that he had an officer's belt and pistol.

5 The Court has had an opportunity of hearing the method of dress of

6 individuals, of TOs, and of this guards' regiment, the elite of the JNA

7 itself. I would submit the following. The timing is probably accurate,

8 that there were four or five buses is consistent with crime base

9 witnesses; that he saw people starting to get off the first bus; and that

10 it was a JNA-uniformed officer who asked for him, not a TO officer. What,

11 therefore, can one glean from the digging of the hole? I would submit the

12 answer is perfectly obvious, that there was an intention to kill which had

13 been created and formulated by, at the latest, 2.30 that afternoon. Why

14 else would you want to dig a hole?

15 Please also remember what was said in evidence. The JNA officer

16 said to him, It's enough. Let's drive back. The hole, apparently, was

17 something like 10 metres by 3 metres; the dimensions are in the evidence.

18 And secondly, there was an indication that he should return to cover the

19 hole the next day. Again, I would submit if that evidence is accepted it

20 clearly shows what the intention was at that time. On the way home he

21 took the key. When he returned, the vehicle had not moved. The question

22 I ask the Court to consider is this: Who covered the hole? Because we

23 have heard evidence, have we not, I think from two sources, that in actual

24 fact the JNA had heavy machinery at that time and there had to be, I would

25 submit, a plan to cover that hole itself.

Page 16040

1 He also said that there were a lot of soldiers and that he

2 returned to his home nearby somewhere between 3.45 and 3.50. Again,

3 perhaps important for 7(3) consideration, although that is not the main

4 drive of the Prosecution case, that there were rumours the next day that

5 people from the bus had been killed. Therefore, we submit his evidence is

6 perfectly clear. There is an intention to kill. The buses four and five

7 in number were there. The timing was at 2.30 to 3.00. The dimensions and

8 the size of the hole, I still would submit, are important because clearly

9 the Court will bear in mind the warning order of the 19th of November in

10 the diary, the war diary, of the 80th, because there there was the warning

11 order of 200 people coming from the hospital. And one should ask

12 themselves the following question: How many people were actually taken

13 from the hole? And in actual fact there was 198. Is it just chance? Is

14 it just coincidence that 200 are mentioned the night before? 200 from the

15 hospital, 200 from the same group who were murdered. Does that itself not

16 perhaps suggest that there was an intention to kill clearly even earlier

17 than has been suggested by myself this morning.

18 Additionally, it also suggests that the grave-digger was under the

19 control of a JNA soldier. The hole was covered. It was controlled by

20 soldiers, and the rumour were occurring, as I say, the next day.

21 So, in our submission, we have a plan to collect and to corral

22 people called criminals and terrorists. The Defence, of course, say

23 differently, but we say that the plan was one and the same and I hope by

24 looking at the evidence and by drawing sensible and proper inferences that

25 they will be shown to be the same.

Page 16041

1 Now, may I also deal with one other matter. Much has been made by

2 the Defence, not only in cross-examination, but also in their briefs, that

3 in actual fact there were individuals who were feigning injury or wearing

4 white coats. It clearly occurred, but surely the starting point must be

5 as follows. Why should people behave in that way? We would suggest when

6 you look at the evidence it clearly demonstrates that these were people in

7 the hospital who knew and anticipated what their likely fate was going to

8 be. And who is to blame them from donning a white coat or a false injury?

9 Is it not to be said that their assessment was correct? Is it not right

10 to conclude that it was the TO and the JNA being victorious that these

11 persons in the hospital concluded that they would be killed? Is it not a

12 proper and appropriate inference to be drawn in relation to that

13 conclusion?

14 Firstly, it was based on the TO and the JNA having control over

15 the hospital and the people inside. Secondly, it is a reasonable

16 inference that the JNA would either facilitate or participate or both in

17 the persecution of these individuals. Thirdly, and extremely

18 significantly in our submission, that the presence of the monitors would

19 not succeed in stopping the crimes being committed against them. That

20 belief was correct. That there would not be isolated killings but involve

21 anybody who was deemed to have participated in opposing the JNA.

22 And finally, in any event, the wearing of the white coats provided

23 no assurance of safety, as many were killed who wore civilian clothes and

24 indeed some had evidence of having received medical intervention or

25 treatment and still were murdered that night.

Page 16042

1 One of the issues that my learned friends, in particular

2 Mr. Lukic, deals with relates to the issue of identification. I had the

3 great pleasure of reading the Limaj judgement, and can I just deal with

4 one or two aspects of it.

5 Clearly, there was specific reference to the case of Turnbull and

6 I'm sure my learned friends are well aware of it and also the case of

7 Kupreskic. It is right and it is proper for a Court to consider that

8 these are areas of difficulty. I accept that fully. I have been brought

9 up on Turnbull and I'm afraid know it only too well.

10 Of course a Court must exercise care, but is it not also right to

11 say, that where a case against an accused depends wholly or substantially

12 on the correctness of one or more identification, the Judge correctly

13 should examine carefully the circumstances. And I ask the Court to

14 examine the circumstances and to examine the evidence of the witnesses who

15 were present at the hospital and other locations. How long did the

16 witness see the accused or have the accused under observation, not merely

17 in view? At what distance? What light? Was it an impeded view? Had he

18 seen the accused before? How often? Had there been any specific reason

19 for remembering the defendant? How long and what time interval between

20 the sightings and the recognition, because in this case, there is

21 identification and recognition. And I would equally submit that

22 recognition is more reliable than identification of a stranger.

23 And I ask the Court to bear in mind the recognition by Vezmarovic

24 of Karanfilov and I will come to that in due course. I also submit that

25 lives are something that can be looked at. If a Court views or takes a

Page 16043

1 view that a defendant or a person has lied on a topic and the Court comes

2 to the conclusion that that witness has lied, not for any other reason,

3 but in recognition of his guilt, the Court are perfectly entitled to take

4 that into account in corroborating any evidence of identification, and

5 indeed other evidence as such.

6 With regard to Mr. Sljivancanin, I would submit there are two

7 important elements. Firstly, physically. Mr. Sljivancanin has been

8 described by one of the Defence witnesses as so tall, so brave, and so

9 handsome. It is not for me to draw any conclusion in relation to that

10 analysis; however, he is a physically distinctive man, he is 192

11 centimetres tall, there or thereabouts, he had a distinctive moustache.

12 Please bear in mind, in our submission, there has been a suggestion that

13 Vukasinovic might have been the man that they picked out. Mr. Vukasinovic

14 conceded and accepted he did not have a moustache when he was in Vukovar

15 at the relevant time. Mr. Sljivancanin has a distinctive voice;

16 therefore, we would submit, by his very physical appearance, he is very

17 distinctive and stands out in a crowd. I don't have to repeat that. It

18 may be said, Well, if he's distinctive, people can sometimes jump to

19 conclusions. Well, that may well be the case, but when one looks at the

20 totality of the evidence of the identifying witnesses, I would submit that

21 that does not apply.

22 Also, let us look at the conduct. As I've already said, he's a

23 man with a loud voice, he is arrogant, he is condescending, he invariably

24 seeks attention, he did not avoid it. If there are two words to sum up

25 Mr. Sljivancanin, they are the following: I am. I am the commander. I

Page 16044

1 am in charge. Mr. Sljivancanin, I would submit, was a man who was

2 courting publicity, not avoiding it. And he was speaking to people in a

3 way that made him all the more obvious. We accept that there is

4 recognition from television and other sources, but there is also the

5 counterbalance of people who were identifying. I ask the Court to bear

6 the following in mind. Did those witnesses have reason to pay attention

7 to him and did they have reason to remember him?

8 Now, may I then conclude this part of my submission in the

9 following way. I submit it is not only the individual identification of

10 Sljivancanin, but also the cumulative or totality of the evidence that is

11 sufficient to prove the appropriate or required standards, both for

12 Sljivancanin and later on Karanfilov. The evidence of identification

13 cannot and must not be viewed as if it is- and I use other words drawn

14 from other judgements- hermetically sealed. It is the accumulation of all

15 the evidence relating to a topic or topics which must be considered.

16 Your Honours will be thrilled to know, I'm sure, that I have got a

17 number of folders for them, and may I just pass them forward. My learned

18 friends will be given theirs. What I intend to do -- I have a the file

19 which has got the grandiose title of identification and I wish to go

20 through the evidence of each and every witness that we say identified

21 Sljivancanin at the hospital and also deals with the nature of the conduct

22 and the level of control that he exercised. I will just ensure that the

23 Defence will get them now.

24 While those are being handed out to the Defence, may I just try

25 and indicate how this is created. It's not exactly too difficult. What

Page 16045

1 we have endeavoured to do is we have extracted identification of

2 individuals who say they saw Mr. Sljivancanin at the hospital. One can

3 see at the very top a box; in it, is included what we say are relevant

4 points. The Defence can add to it, they can detract from it, they can do

5 whatever they want to it, but it's there to help. With regard to the

6 actual content and this is what I call a warts and all bundle. There is

7 highlighting in relation to various sentences for what we say is

8 important. This document has been created to assist the Court in relation

9 to identification evidence, for speed you can see on the left-hand side

10 the transcript references, and also the various references.

11 The first witness is Polovina. One can see at 2588:5 the

12 selection process, men to the left. As we move further down, the answer

13 is: "Can you describe to the Court this man that you saw?

14 "A. Yes, I can. He was tall, slim -- on the slim side. He had a

15 moustache and dark black hair."

16 Now, does the Court and my learned friends have they got that --

17 that part? There's nobody who's got anything in error.

18 Then there was a question about her husband. She said about 180.

19 And 2580 she said the man was taller and 2580:16:

20 "A. At the time when I saw him for the first time, I didn't know

21 his name. In the next 15 minutes or so while talking, whispering to the

22 women standing around me I learned that his name was Veselin

23 Sljivancanin."

24 And then later on she said that several women had talked to him.

25 May I draw the Court's attention, please, to 2581. This was where

Page 16046

1 Polovina actually asked what was happening and he said: "Don't you worry,

2 they are going for a brief questioning to the barracks and they, the men,

3 will follow you soon thereafter."

4 Dealing with this briefly, I submit that's a lie. It was a lie

5 told quite deliberately, as lies tend to be, and it was there to ensure

6 that there would be no problems with regard to the removal of the men. In

7 relation to the identification there is reference to the moustache, tall,

8 and thin. There is no suggestion in the evidence at all of any other

9 person being at the hospital who fitted the same physical description, and

10 the mere fact that Sljivancanin's name was whispered, we would submit,

11 bearing in mind he introduced himself on a number of occasions and I will

12 draw the Court's attention to it, does not of itself mean that the

13 evidence is unbelievable.

14 Can I ask the Court then, please, to go over to page 2, 2700:7, at

15 the very bottom. There have been some cross-examination by Mr. Lukic

16 about whether this was a valid identification or not. And I, on my

17 customary hobby horse, had asked quite simply whether in actual fact the

18 Defence are going to say it was him or it was not.

19 And Judge Parker said the following: "Mr. Moore, if no Defence

20 counsel pursues that issue, the expectation is that it is not disputed."

21 This is a matter for the Court, how they deal with it, but it was

22 never suggested that this witness was lying. And this, we would submit,

23 is a recurring theme. But the important point is that there is a clear

24 description of Sljivancanin himself. The next page 4 is P009. Again, he

25 says he's described him at page 6122, described as a real, real officer,

Page 16047

1 officer in charge." At 6122: "I mean that he was distinctively different

2 than any other person that was around him. He was -- he had that real

3 kind of look as a military officer, a JNA military officer."

4 Then at 612213: " He was a very tall person in camouflage

5 uniform -- with a Tito hat on his head. He had a brief-case or a bag that

6 usually the officers would wear."

7 And then at 25 and 26 one can -- as one moves down the page about

8 hair colour. "It was dark hair at that time. He was a very tall person.

9 I noticed a moustache."

10 Again if one turns over the page at 6185 there is reference to the

11 fact that he said that: "I found out it's Major Sljivancanin."

12 Now, there is significant cross-examination on this witness, and I

13 have no doubt at all that you will be addressed about it. But

14 nevertheless these are independent witnesses, they are not people who have

15 gone off in the same bus or were very close friends. There is an element

16 of neutral corroboration.

17 Next witness P031, and I believe there are 17 witnesses in this

18 bundle. P031, I would submit, was a credible witness, came across as

19 careful. At 3240 he said: "At that time a major of the JNA was in charge

20 of the entire operation. Everything transpired under his control and on

21 his orders."

22 Clearly issue of command and control is an important element

23 whether it be de facto or de jure. Here is a person looking at this man

24 and saying that everything went through him.

25 He said later on that he heard his name was Sljivancanin. At

Page 16048

1 324011: "When I left the camp and arrived back in Zagreb, in Croatia,

2 then on a TV report -- in a TV report I saw that same major and recognised

3 him as Sljivancanin. That major issued orders to his soldiers. He seemed

4 to be a very arrogant officer."

5 Again, the question at 3240:20: "Did you see any other officer in

6 JNA uniform at that time?

7 "A. At the time, I didn't see any other JNA officers."

8 He did, however, refer to a lieutenant three lines down at 23.

9 At 3247:3, the following question was asked: "Did anyone get off

10 that bus before it left the hospital area?

11 "A. Yes. There was a call being shouted. I just heard this.

12 Just outside the bus I saw Mr. Sljivancanin."

13 At the bottom of the page you'll see how it flows on, at 3248:23,

14 about the hospital identification card.

15 "Yes, I did confirm that. I left the bus afterwards. I got off

16 the bus, and I addressed Major Sljivancanin. I didn't know his name at

17 the time. I just knew he was a JNA major."

18 And then it goes on -- the discussion, and I would submit that is

19 entirely appropriate for the conduct of Sljivancanin that day. At

20 3250:10: "Did anyone give any order for the buses to move?

21 "A. Yes. An order came for the buses to drive on to the

22 barracks." This order was being issued by Sljivancanin.

23 So I will not go through any other parts; they are highlighted.

24 However, after significant cross-examination by Mr. Lukic, page 9,

25 3374:7: "Now you assert that the officer in question was my client,

Page 16049

1 Veselin Sljivancanin. Is that correct?

2 "A. Yes."

3 And I would submit that in actual fact, when you look at the

4 evidence of this witness, that he was a good witness, he was an honest

5 witness, he gave credible evidence, and he is just another person who said

6 that Sljivancanin was there.

7 Page 10, P007 is an important witness. He's an important witness

8 because the starting point is: "He introduced himself as Major

9 Sljivancanin."

10 So here is the introduction himself. At 4006:12: "In my opinion,

11 these were regular soldiers of the Yugoslav People's Army."

12 Just blow that: "He introduced himself as Major Sljivancanin and

13 said: Now you will be transported to the Velepromet warehouse where you

14 will be separated according to what was agreed."

15 Now, this was Velepromet, this was the 19th, not the 20th. Later

16 on at 4007:4 the Court can see that Sljivancanin said people would be

17 taken to Velepromet. "After that he turned around, went down the steps

18 outside the hospital, and spoke to two people wearing white uniforms. I

19 did not hear their conversation, but I heard his voice telling one of

20 those people to go back to their own country and issue orders if they like

21 because he is in charge here."

22 And the Court will remember very clearly the reference to

23 Sljivancanin telling Borsinger to go back to his own country on the 19th.

24 And then the description that one has down at the very bottom

25 4115:19: "He was tall, dark, good-looking. Everything became quiet as he

Page 16050

1 introduced himself: I am Major Sljivancanin."

2 And I would submit that 007 is an important witness, not only for

3 the 20th, but also for the 19th, where there is an area of dispute.

4 The next witness Bucko is important because it demonstrates not

5 only the identification of Sljivancanin, but it demonstrates the

6 coordination and the cooperation between the TO and Sljivancanin himself

7 in what I will call the re-selection process. It deals with the morning

8 of the 20th. If you just look at the very bottom, 2814:20, he's already

9 said by this stage that he spoke to Sljivancanin but this was Ivankovic

10 replying that he was no longer in charge. These men were now in charge.

11 And when he said "these men," what did he mean? He meant the gentleman

12 Major Sljivancanin. "What he said? He said, "You think you're any better

13 than the rest of them."

14 Now, may I just ask you again to move to 2826, number 23: "Did

15 you eventually get off the bus?" Because he had been on the bus and was

16 coming back.

17 "Mr. Sljivancanin came, and Bogdan, the doorman, and another.

18 Major, I don't know him but perhaps I would recognise him if I saw him

19 again. And then they said, 'Get off.' You used to be soldiers."

20 Bogdan almost certainly is Bogdan Kuzmic and Bogdan Kuzmic was a

21 member of the TO who was being used at that time along with Miroljub for

22 what I will call the re-selection or filtering process where Sljivancanin,

23 by his own admission, was involved. At 276 he said: "Mr. Sljivancanin

24 asked Bogdan whether he knew me, whether he recognised me." Then clearly

25 the answer was that he had not and he was told to fuck off.

Page 16051

1 May I draw the Court's attention then to 2831:3.

2 "Now, you have told us about two meetings with Major Sljivancanin.

3 "A. Yes.

4 "Q. How do you know the person that you were referring to was

5 called Sljivancanin?

6 "A. Ah, that was nice. He came, I don't know when. It wasn't

7 the first time on the 20th. He had to be at the hospital on the 19th

8 because people were already saying things about him at the hospital, what

9 he was like, that sort of thing. People were saying that he had

10 introduced himself upon arriving there."

11 And I would ask you to bear in mind the evidence of 007 in

12 relation to that.

13 "And can you -- can you describe to the Court the person that you

14 called Sljivancanin? Can you tell us the height?

15 "A. Very tall, wears a moustache, very tall, quite a strong man.

16 He was strutting like a peacock, and he kept talking."

17 That's at 2831:21.

18 So I would submit that that witness is very important in relation

19 to confirmation of Sljivancanin's attendance on the 19th, confirmation of

20 introduction. He describes him. Of course it can be said it is

21 retrospective, but you have reference to Bogdan, Bogdan Kuzmic I will

22 submit. It was a re-selection process and we will see later on, with one

23 other witness, the criteria that they were using for selection.

24 I'm going to jump the next witness who is Dr. Bosanac not because

25 she is not important, she's extremely important, but I just draw the

Page 16052

1 Court's attention to one or two parts. There is page 68 -- sorry

2 transcript 683:17. That is on our page 16. She said that she thought she

3 spoke to Sljivancanin about 5.00 or 6.00 p.m. She then said that she

4 spoke to him again that evening with Borsinger.

5 Page 17, at 687:12, she said she first gave the copy to Borsinger

6 and the remaining copies to Sljivancanin. There's reference to where she

7 said: "I'm not going to go into that if I may."

8 But could I ask you, please, just to look at page 18, our page 18.

9 This relates to the interview that she had clearly at Negoslavci. It's at

10 page 689:16 or transcript page 689:16. And here she's being asked about

11 the discussions at the table. "The other man seated next to him," that

12 was Sljivancanin, "said that I should watch my mouth because they had

13 other methods to -- they knew for a fact that I had to know all these

14 things because they had been listening in to all my conversations, phone

15 conversations with Zagreb." And I am submitting that it is absolutely

16 plain as a pike staff that there would have been notice of negotiations

17 for the evacuation what has often been called the Zagreb Agreement.

18 There's reference in her evidence about -- that it was

19 Sljivancanin saying that she should assemble the medical staff, not any

20 suggestion of Vujic, but it was Sljivancanin who was doing it.

21 And then 855:15, our page 19: "When giving testimony on that day,

22 the 19th of November, my client, Mr. Sljivancanin, first came with the

23 soldiers in the afternoon hours and then once again in the evening around

24 1700 hours together with a representative of the ICRC. Do you remember

25 that?

Page 16053

1 "A. Yes."

2 That evidence will fall into place, I hope, when we move on.

3 The next witness is Kolesar. Kolesar, really the important part

4 of Kolesar's evidence is on our page 22 at 953:15. She's talking about

5 Sljivancanin. I don't think there's any dispute that it was Sljivancanin.

6 "And then she told that he should write up a list and that was

7 done very quickly, and the list was turned over to Mr. Sljivancanin.

8 "A. Later on in the yard, I never saw Mr. Sljivancanin. I only

9 saw him in the surgical clinic. We listened to what he had to say. We

10 listened to him. So we saw him as a person addressing us, telling us

11 something, the person of importance..."

12 And at 956:21: "It was my impression that with everything that

13 was going on there he was actually the person issuing orders and telling

14 people what to do."

15 I won't deal with P021, but I would like to deal with Vilhelm who

16 links with Bucko on what I will call the re-selection process where the TO

17 with Miroljub are involved. We say Miroljub was there at the beginning

18 and he was there at the end. 4876:5: "When we arrived back at the

19 hospital we were ordered to get off the bus. Our wives for waiting for

20 us, or whoever it was who told us to bring our people back to the

21 hospital. We lined up at the ready."

22 4876:17: "You told us that you were ordered to get off the bus.

23 Who ordered you to get off the bus?

24 "A. I don't know who did, but it must have been one of the

25 soldiers, I assume. Also because Major Sljivancanin was nearby.

Page 16054

1 "A. I had never seen this comrade, as they would say in the army,

2 at all. I first set eyes on him when I arrived in Zagreb. It was then I

3 first learned that the man's name was Sljivancanin. However, my wife had

4 begged him to help us and she was the one who told me that that was

5 Sljivancanin.

6 "Q. Are you able to describe to the Court the height of the man

7 that you say was Sljivancanin?

8 "A. As tall as I am. Perhaps even taller, give or take an inch

9 or two. Thereabouts. He wore a moustache, a uniform, a cap.

10 "Q. And when you saw this man that you call Sljivancanin, were

11 there any other soldiers with him?

12 "A. He was with Miroljub Vujovic and Darko Kovacevic, a man known

13 as Drko."

14 And then there is reference to military uniform. We submit that

15 Miroljub's presence is extremely significant. Our page 25, top off,

16 4877:16.

17 "A. When we were lined up there was Miroljub and there was Major

18 Sljivancanin, and they asked each man individually whether they were

19 ideologically suitable. Miroljub was pointing fingers at people and he

20 kept saying, 'This one, this one, and this one,' and those people would be

21 released. When he came to me, he said that this man had been loyal to a

22 certain month of the year but that me and my sons were Ustashas, and it

23 was at this point that I was ordered to get back on the bus."

24 Just below that 4878:25: "Miroljub would point people out and

25 these people were free. They would join their wives and go on other

Page 16055

1 buses. They went one by one, those who were released."

2 Just below that: "All those who Miroljub Vujevic believed to be

3 Ustashas were taken to one side and sent back to the bus."

4 Again, just below that, again, 4879:9:

5 "A. Miroljub told the major that I was an Ustasha and I was sent

6 back to that bus. At this point in time my wife pleaded with

7 Mr. Sljivancanin, Major Sljivancanin to let me go, because I was no

8 Ustasha she said. She pleaded with all the Serbs she knew and they said,

9 'Maybe tomorrow.' But my wife knew that that would be too late."

10 I submit again that the reselection process is very important

11 because it demonstrates quite actively how Sljivancanin operates with

12 Miroljub. The Court will remember at 9.00 at night when we're talking

13 about the withdrawal of the military police at Ovcara, that Miroljub was

14 also seen there in the presence of Karanfilov, who clearly is a direct

15 subordinate of Sljivancanin. You have got Miroljub being involved at the

16 start, you have got Miroljub's presence at the barracks, and you have got

17 Miroljub involved at the end. I would submit that there is clear evidence

18 of a continuity of plan and participants in that plan with regard to

19 Sljivancanin and subordinates of Sljivancanin.

20 I will not deal with P012 as we move on in time. This is P030 at

21 page 30. If I deal with it very briefly, this is where there is reference

22 to Captain Radic. Much issue has been taken of that, and I am sure that

23 he will be -- have dealings with it. He says that he saw Sljivancanin by

24 way of identification on the television, that he had seen him, that he saw

25 him, I think, for approximately 15 minutes. He described the height, at

Page 16056

1 least 190 centimetres, maybe even a few more, so quite high, quite tall, a

2 quite tall up-right standing man, quite a presence.

3 The next page at 9733, "He had an authoritative attitude, issuing

4 orders letting us know that he was the main person there. Nobody dared

5 interrupt him. He was the main figure in that area, standing in front of

6 people, and he was issuing orders."

7 I will not deal with page 32, P006, except to say that there is

8 reference to lists of names in relation to him.

9 May I then go to page 34. This is Berghofer. I would submit that

10 Berghofer again is a very good witness, quite precise. First question.

11 "Q. May I just deal with the man that you have described? Can

12 you remember if he was wearing uniform or not?

13 "A. He was so remarkable and striking that I wouldn't forget him

14 even if I lived for another 50 years. He was tall, a strong man, he was

15 wearing a soldier's cap, a uniform, a life jacket, and he had a moustache,

16 and he was so striking that I don't think it's possible to forget a man

17 like that."

18 He then goes on to say halfway down the page that he saw him

19 arguing on the bridge and we clearly have got evidence of that and no one

20 is going to be suggesting that that's Pavkovic.

21 At the bottom of the page, at 5279:

22 "Well, it was shown on the news as well, and he was always

23 referred to as Major Sljivancanin. And so it was quite clear that that

24 was the man who was in command at the hospital." He was a hundred per

25 cent sure.

Page 16057

1 The following page, I'm not going to go into it, they are

2 highlighted. There's reference to command by Sljivancanin, the control of

3 the civilians and the buses.

4 Page 36, four-fifths of the way down the page, at 545023, when

5 there was an element of cross-examination he said: "Well, look,

6 Sljivancanin is the kind of man you could spot from miles away; that's how

7 tall he was."

8 And then I believe this may have been a question from Judge Parker

9 because of the reply, but I can't be certain of it. But here is the

10 question anyway.

11 "I'd like to deal with the hospital, please," that's at page 37,

12 5472, "I'd like to deal with the hospital, please, and the morning of the

13 20th of November. You have told us that you saw a man, tall man with a

14 moustache, whom you believed to be Sljivancanin. All right? Did you see

15 any other person who was similar in description and, namely, tall with a

16 moustache, who was issuing you orders at any time?

17 "A. No, Mr. Judge, I didn't. He was remarkably tall. He had a

18 remarkable moustache. He is not a man one is likely to forget that

19 easily."

20 Again, when one looks at the evidence as a whole, a very clear

21 picture emerges.

22 Could I ask the Court, then, to move to page 43, and I will return

23 then to page 38.

24 The Dosen family clearly were killed or murdered at Ovcara, two

25 members of them, and there is one other missing, I believe. But clearly

Page 16058

1 Dosen was a name well-known to the TO and the JNA. And this is L. Dosen.

2 She says quite simply that she "turned to look at the other buses and I

3 spotted a tall officer with a black moustache wearing a camouflage

4 uniform. I didn't know at this time who this person was. I just walked

5 towards him, and I heard him being addressed as Major Sljivancanin."

6 Just further down the page at 3801:13 there's a reference about

7 her husband being on a stretcher. She said: "Yes, it's my

8 husband." "Yes, I know that, but who specifically? And I said, 'Martin

9 Dosen.' And then he said, 'Oh, it's Dosen.' I gave him a strange look,

10 wondering how on earth he knew who Martin Dosen was. And then I

11 said, 'Well, yes.'"

12 3802:1: "And then he was lost in thought for a moment, and then

13 he raised two fingers to some two soldiers standing there in order to tell

14 them to go back bus and bring Martin on the stretcher back. I thought at

15 this point that they would take him back to the hospital, but they just

16 left him lying in that corridor passage that I marked with the C. I asked

17 Sljivancanin right away, 'I have Martin's bag on me containing his

18 personal belongings and clothes. What I am supposed to do with it?' And

19 he said, 'Well, the -- why would he need that?'" There's a slightly

20 different interpretation of those.

21 3802:3: "A. I noticed him issuing orders, giving out commands,

22 and that everybody reported to him, addressed him. And one could clearly

23 see that everyone came to him, be it the reservists or the soldiers. If

24 anyone had any questions, they all turned to him."

25 There's issues of subordination, whether he has effective control,

Page 16059

1 whether it's de jure or de facto. This is a woman whose husband is

2 clearly of significant concern to her. I would submit that that is a

3 situation where she herself would be well aware of what was going on,

4 concerned for her husband, and when you hear her using phrases like

5 "orders," "commands," both "reservists" and "soldiers," I would submit

6 that it's entirely consistent with the way the Prosecution put its case.

7 Again, if one looks at 3803:25:

8 "A. I believe he was the commander there. I also took into

9 account his insignia, because I used to be married to an officer. I could

10 recognise rank and I knew he was a major." And later on she says "knowing

11 he was a JNA officer, and seeing him in command."

12 At 3805:2 she was talking about Chetniks and locals, and then it

13 starts: "And I thought to myself, He was the only person to turn to,

14 since he was commanding there, and if he should decide for me to go on

15 that bus, so be it. Otherwise, I still need to try something."

16 At 3805, and I'll leave it at that, at 3805:9: "The soldiers

17 around him were calling him Sir or Major and they told me, 'Yes, this is

18 Major Sljivancanin.'" That's at page 44.

19 The reason I went slightly out of order because when I ask you to

20 go to page 38, that's her daughter and some of the answers link to the

21 mother's evidence. It's at page 38, and one can see that the first part

22 relates to the 19th of November.

23 "A. Major Sljivancanin came in through the door and introduced

24 himself," again another person who says that he introduced himself, "he

25 said he wanted them to leave those rooms and he left two regular JNA

Page 16060

1 soldiers there to stand guard at the door. And he no longer allowed any

2 of those others outside."

3 Just below that: "He was wearing a JNA uniform. He was tall,

4 slender. He wore a moustache, black moustache, black hair. He had some

5 sort of cap or something on his head. And he clearly introduced himself,

6 'I am Major Sljivancanin.'"

7 She also gave evidence for the 20th and that's why she is an

8 important witness. 3918:9:

9 "I saw Major Sljivancanin again," and this is on the 20th, "he was

10 standing there with some soldiers issuing instructions to them, telling

11 them what they were supposed to do. We just walked past, so I didn't hear

12 what it was he was telling them."

13 Just below that at 3918:17:

14 "Q. And were those soldiers wearing uniforms?

15 "A. Yes. All of them were members of the JNA."

16 I won't go into the next page in any great detail apart from the

17 top where there is a reference to: "I am Martin Dosen's wife," at 3923:4,

18 because this is clearly the same account as her mother gave evidence on.

19 And it says 3923:5: "And he said, 'Hmm, I see. Martin Dosen, why isn't

20 he on the bus?'"

21 And just below that: "'He will not be needing those things

22 anymore.'"

23 And the mother had said that she said spoken to Sljivancanin.

24 There have been suggestions that they had colluded, at page 41, at

25 3978:18, because the suggestion of course is that they had colluded to

Page 16061

1 point a finger at Mr. Sljivancanin, that their evidence was false or

2 fabricated.

3 She said: "We don't really talk about it very often. The images

4 that still haunt me and all the things I remember can never be changed.

5 Even if I discussed this with my mother, what I experienced, what I said

6 and heard back then, I'm not saying that I can't be wrong about details,

7 but all these images that will stay with me cannot be changed in any way.

8 My experience was one thing; my mother's experience was a different thing

9 altogether."

10 I would submit they have reason to remember and you have got

11 evidence of introduction, you have got evidence of identification the

12 following day, which is recognition of identification, and that it

13 correlates also with the identification on the 20th and the 19th

14 themselves.

15 Page 46 I will not deal with. There is evidence about Major

16 Sljivancanin again being in charge. However, 49 is Zlogledza. This

17 witness gives really two batches of evidence and is important, not only

18 for the participation at the hospital but also at Ovcara. And if the

19 Court wants to mark the top of page 49, "See also page 58," that may

20 assist you to correlate the two transcripts.

21 Zlogledza saw Sljivancanin twice, saw Sljivancanin at the hospital

22 several times for periods of five to ten minutes, and secondly at Ovcara

23 for 10 or 15 minutes, speaking with the TO outside the hangar. Initially

24 describes Sljivancanin as quite tall, and you can find that on the first

25 page, 49, at 10182:16.

Page 16062

1 "I saw a man wearing a camouflage uniform. He was in and out of

2 the hospital all the time." If my memory serves me correctly, that

3 corresponds with the evidence of Karan, who, in his evidence, actually

4 said that Sljivancanin was in and out on several occasions. I've not

5 looked at that for about three or four months, but if my memory is right,

6 I think that is correct.

7 It then goes on at line 21: "He was quite tall, black hair, and a

8 black moustache ...

9 "Q. Did this man have any facial hair?

10 "A. Just the moustache.

11 "Q. What type of cap ...

12 "A. A camouflage one ... slender.

13 "Q. Did you know that person's name?

14 "A. Yes. Sljivancanin.

15 "Q. How did you know his name?

16 "A. While we were still in the Vukovar police building, we were

17 able to watch TV."

18 Well, again there is significant cross-examination in relation to

19 it. It's for the Court to come to their own conclusion about the

20 credibility of the witness. It doesn't necessary follow because somebody

21 has been seen on television that in actual fact that identification is

22 wrong. There is a large amount of evidence to suggest that this witness

23 was accurate. And it cannot be said that every witness is mistaken and

24 every witness is a liar, as seems to be the case.

25 Again, there is reference to seeing press photographs of

Page 16063

1 Sljivancanin after the war, that he avoided any TV programmes about

2 Vukovar, and perhaps one can understand why; that he didn't know about the

3 film footage of Borsinger and Sljivancanin, and you have the reference to

4 that. And then there is reference to the line-up and we can see that it

5 is transcript 1028:2 and 1028:9.

6 Clearly the Court are going to have to look at Zlogledza's

7 evidence carefully because he says that Sljivancanin is at Ovcara. He is

8 not the only witness who says that he saw Sljivancanin at Ovcara. The

9 Prosecution case does not have to rest on the fact that Sljivancanin was

10 present there. We submit that he clearly is part of the joint criminal

11 enterprise to persecute these people, and indeed it is not necessary for

12 him to be there, because he himself has been in charge of the evacuation

13 in other ways and has a continuing influence and control over it.

14 But I would submit that if Zlogledza's evidence is correct, then

15 it puts into very clear perspective what Sljivancanin has been saying,

16 because when one remembers of the interviews, in January and December 1998

17 before the judges, there was clearly reference to Sljivancanin saying that

18 he had gone to Ovcara but he had got the days wrong and that he was there

19 with Vukasinovic, I believe, to check on cars. One begs the question of

20 what a man who is supposed to be involved in a security organ of the

21 guards motorized brigade is doing at Ovcara, whenever it is outside the

22 zone of responsibility is another issue and whether in actual fact Mr.

23 Sljivancanin would ever really be there in relation to cars, but

24 Zlogledza's evidence is something that clearly is going to have to be

25 looked at with care.

Page 16064

1 Page 53, and I will finish this before the break, is P032. He

2 again is another witness who gives evidence about the 19th, and this

3 witness says that in actual fact he had been given a lift by Sljivancanin

4 when he, the witness, was on his way to the hospital. And it was a

5 description at 3027:1: "He had a camouflage uniform, he was tall, and

6 sported a moustache and he had a Tito cap with a red star on his head."

7 And then there's reference to how he identified him, that in

8 actual fact he had recognised him from a picture as he said perhaps a few

9 days before the Geneva Conventions arrived is the way he described it.

10 But again, we have got other evidence of Sljivancanin being at the

11 hospital on the 19th, and if that's the case, this is entirely consistent

12 with the evidence of other witnesses.

13 Page 55 again is an important witness, 009. This witness sees

14 Sljivancanin not only here at the barracks, but also at Ovcara. And if

15 the Court want to write down -- see also page 57, which I think actually

16 is the next page but one, it links on those two topics. At 6141 there is

17 the description - I'm not going to go through it again. It's interesting.

18 He said at 11: "He made a huge impression on me as an officer and a

19 gentleman. He looked a real, real officer."

20 Later on he says quite simply that he was a real, real officer,

21 and there was a reference to the person that he saw. We say that clearly

22 that it was Sljivancanin and that he was pretty much face-to-face with him

23 at 6146:25 on page 26.

24 So you have an identification, we submit, of Sljivancanin at the

25 barracks.

Page 16065

1 At page 57 we have got that he had cited Sljivancanin at Ovcara,

2 that he had been seen at the hospital on the 19th. I'm not sure that's

3 correct. And let me just check that, if I may.

4 Thank you very much.

5 If I may just locate that. Yes. That he had seen him at the

6 barracks, that's right, where they had basically gone by, that he had also

7 seen him at the barracks, as I've already referred to. At 6164:19: "And

8 you said that you started walking slowly back around the hangar towards

9 the entrance on your way back did you see anyone?

10 "A. Yes, I saw the same JNA officer that I had seen at the

11 hospital and at the barracks."

12 I am submitting that it may well be that you can make an error

13 once or you make it twice, perhaps, or it could be that you work upon a

14 false premise. But clearly if this identification is right, it is the

15 same person who is at Ovcara at that time. And at 6283:13 he

16 said: "Before going over there I didn't see any officers at all. Coming

17 back I did see Major Sljivancanin."

18 And then there's the reference about -- that he was a major and

19 how he had expressed various views to him.

20 And then finally Zlogledza, as I said, there is the reference to

21 how he had identified him. That was at page 48. This is where he said he

22 had seen him at the hospital, at Ovcara. He had been in and out of the

23 hospital and that in actual fact that he had watched Serb TV reports and

24 that he had seen them on Serb reports from their TV stations, "I saw him

25 on TV."

Page 16066

1 I've tried to do it as briefly as I can and I've jumped and left

2 out rather large traunches of evidence and it is rather turgid and I

3 apologise for that. But the only reason that I do it is this. We are

4 now, in 2007, much of the evidence was in 2005, a long time ago, and it is

5 important to bear in mind, actually, some of the evidence that was given

6 by way of identification. As I say, identification is evidence that one

7 has to be careful about, but I would submit collectively and individually

8 you have got identification of Sljivancanin on the 19th, you have got

9 introduction of Sljivancanin on the 19th, you have got identification by

10 way of recognition on the 19th and 20th, all at the hospital. The Court

11 should be asking itself: What was this man doing? I'm submitting that he

12 was utterly in control. This is not just a man who was responsible for

13 triage because one clearly has to look at other evidence. And this is a

14 man that everything he was going through with regard to the barracks with

15 regard to Ovcara, that is entirely a matter for the Court on those

16 identifications. But the one thing that is absolutely certain in our

17 submission is that Sljivancanin, by his own acknowledgement, was there.

18 And if these witnesses are to be believed, he was controlling absolutely

19 everything at that time. And entirely consistent with powers given to him

20 by his superior, Colonel Mrksic.

21 It is now quarter to 4.00 and I think that is the customary time

22 to adjourn. I will move on to other topics and try and work within the

23 timetable.

24 JUDGE VAN DEN WYNGAERT: Thank you, Mr. Moore. We will have a

25 break of 20 minutes now.

Page 16067

1 --- Recess taken at 3.44 p.m.

2 --- On resuming at 4.06 p.m.

3 MR. MOORE: Thank you very much.

4 I know time will be the enemy of this submission, I suspect

5 everybody's submission, but what I have done is I will try and conclude

6 Sljivancanin in half an hour. To assist the Court again, I'm sure you'll

7 be thrilled to hear that I've got some other documents. One is in

8 relation to exhibits and what I call a route map of our submission and I

9 hope that this helps. I've also got it for my learned friends.

10 [Prosecution and usher confer]

11 MR. MOORE: I hope that there should also be a file. The Court

12 should have that as well.

13 May I explain the system that I hope to operate, and I underline

14 the word "hope."

15 The soft-leaf document which is stapled really are the closing

16 submissions in very brief outline. Our case is in the closing brief, but

17 these are parts where we try and deal with issues that we submit are very

18 important, and there is then the file itself which particularises the

19 exhibits that are already in evidence. If one looks at the schedule, it's

20 perfectly obvious what they are, tab 1, the exhibit, the description, and

21 the date which perhaps isn't so important. What we have also tried to do

22 for speed is to highlight the actual section or paragraph. So, for

23 example, if we go to just tab 1, one can see that it clearly is a series

24 of regulations, but if you go to page 4 at the bottom we will be referring

25 to Article 6, and Article 6 I hope will be highlighted. Thank you very

Page 16068

1 much. And we have tried to do that through each and every document to

2 assist.

3 I'd like to deal with, if I may, with what we will call

4 Sljivancanin's de jure and de facto control over the evacuation. In

5 relation to the de jure powers, clearly Sljivancanin was put in charge of

6 the hospital evacuation by the delegation of Mrksic; we say for two

7 reasons. Firstly, the doctrine on the delegation of authority, as well

8 as, the evidence put forward and evidence in relation to it from both

9 Prosecution and Defence.

10 The brief number for Prosecution is paragraph 523. When we talk

11 about doctrine, here the powers relating to the command and control such

12 as the hospital evacuation, we submit, can be delegated to a subordinate

13 such as Sljivancanin. Really two points. The first point is that there

14 is extensive evidence. The references are there for the brief, paras 524,

15 which demonstrates Vukasinovic's appointment to be in charge of Negoslavci

16 and 525 where there's reference to Sljivancanin being in charge of

17 Mitnica, Velepromet, and the hospital.

18 And so we would submit that that is an important element, that

19 indeed he could exercise command responsibility prerogatives, based on the

20 powers of the commander that the commander has delegated to him.

21 Can I ask you, please, to look at tab 1 that I have already dealt

22 with and that is under Article 6. It may well be I'll have to skip some

23 of these exhibits because of time, but there, under Article 6, "The

24 commander may authorise certain officers from the command to command units

25 and institutions of branch services."

Page 16069

1 Now, again in tab 2, we have got the reference to the delegation.

2 At page 28, we can see on tab 2, page 28 which we have extracted, and it's

3 in the notes in any event, that: "A commander may delegate some of his

4 duties and obligations on the chief of staff, his aides, staff organ and

5 subordinated commands."

6 So we would submit that is the doctrine, that is the basis. And

7 OTP brief 526 and I'll call it just 526 from now on. "The delegation of

8 an operation by a commanding officer to a subordinate officer clearly does

9 not diminish the commander's obligation to ensure a successful completion

10 of the task and the subordinate officer's being delegated the task will

11 not be absolved from his responsibility and will have," and the phrase is

12 taken from Pringle: "Absolute authority and absolute responsibility to

13 carry out the order assigned to him in the manner ascribed by his

14 commander and remain responsible and accountable to his commander for the

15 proper conduct of the task."

16 I see the Court seems to be concerned. Is there anything I can

17 assist the Court with?

18 May I deal then with the second limb, which is evidence. It's

19 Prosecution brief 553. The Court clearly remembers Vujic's evidence, the

20 reference that Major Sljivancanin said the hospital would be vacated

21 according to an evacuation plan that he, Sljivancanin, would personally be

22 in charge of this mission.

23 554 of the brief, according to Panic, if Panic is to be

24 believed, "Sljivancanin was present at 1800 hours at the OG South

25 briefing." We submit that's extremely important evidence. "Mrksic put

Page 16070

1 Sljivancanin in charge of the evacuation, allowing him to use Paunovic's

2 military police." It's a fact, of course, that Paunovic denied. The

3 alleged final destination of the buses was Sremska Mitrovica. And,

4 therefore, in the conclusion that we place before the Court, is that

5 Sljivancanin was put in charge of the evacuation from the hospital to its

6 final destination and he was specifically given authority to use the

7 military police for that purpose.

8 Moving on to the briefing at 8.00 in the evening, 2000 hours on

9 the 19th of November, the security organ briefing. Sljivancanin did not

10 mention that at all in evidence, a little surprising one may think, but

11 his subordinates did. The subordinates themselves were issued specific

12 assignments and we can see quite clearly what those assignments were.

13 Karan was to participate in the triage, to assist Sljivancanin in

14 preparing all the security aspects of the evacuation. Vukasinovic to lead

15 the transport. Karanfilov, who clearly played a key role ordering

16 Vezmarovic to withdraw from Ovcara on the evening of the 20th.

17 The order to stop at the barracks on the -- was issued on the 19th

18 by Sljivancanin to those subordinates, and it was not a joint decision

19 with Vujic taken on the 20th of November as Sljivancanin had testified.

20 The Defence point, which we now deal with, is that the barracks

21 were secure. We submit that's complete and utter nonsense. The barracks

22 were not secure and it was not a secure place to stop vehicles who had

23 terrorists and criminals inside. There were broken fences which

24 surrounded the compound. There were clearly inadequate forces to protect

25 the detainees. The proximity to the barracks -- the barracks to

Page 16071

1 Velepromet, in our submission, is startling because there had been

2 repeated incidents reported to Sljivancanin and Mrksic about maltreatment

3 and abuses, the previous nights on individuals, and I ask the Court to

4 just reflect on who was in charge of Velepromet. I seem to remember I

5 think it was the 10th of November. There was the appointment of

6 Borisavljevic, who was a subordinate to Sljivancanin, and clearly there

7 was a direct link of the security organ into Velepromet a very short

8 distance, I think five minutes' walk, perhaps 500 yards I seem to remember

9 was the figure, and there was no logical or military reason for the buses

10 to stop at the barracks. They had already been to Ovcara. They could

11 have been gone to Ovcara straight away if there was a concern because

12 Ovcara had been chosen for security. And the other thing is quite simply

13 this. There was absolutely no reason for them to stop at the barracks.

14 They could have gone straight through to Sremska Mitrovica because they

15 were leaving early that morning and the buses were not expected at the

16 barracks; we've heard evidence about that. And Susic was obliged, as a

17 matter of urgency to provide protection for them.

18 And therefore, we submit the following: Firstly, that there was,

19 as I say no logical or military reason for the buses to stop. I've

20 already dealt with that. And secondly, Sljivancanin due to his

21 responsibilities over the whole evacuation had the obligation to evaluate

22 and to assess potential threats involved and should have considered the

23 risk that would have jeopardised the evacuation in any event, if he were a

24 man who had genuine concerns for the welfare of those people.

25 Dealing with de facto powers. I want to deal if I may please, at

Page 16072

1 the hospital during the -- what we will call, the unlawfully evacuation.

2 The brief numbers are 564 -- 562, 604 and 605. There is a large volume of

3 evidence, numerous witnesses, hospital staff, patients and people staying

4 at the hospital during the time relevant to the indictment as well as OG

5 South members, who were present at the hospital premises at the barracks

6 and Ovcara, and we submit that Sljivancanin clearly identified himself,

7 and that's why I dealt with the other matter first, and acted as the

8 person in all -- in charge of all aspects of the evacuation. I'm not

9 going to rehearse the points that were made earlier on.

10 It was quite clear, in our submission, who was in charge, who was

11 giving orders, and he was giving all the orders and they were obeying him.

12 And The Court has already the heard evidence about Polovina and the lie

13 and the fact about the Dosen comment.

14 I'll deal then with the obstruction of the international monitors.

15 Our brief, it's 564 and 565. We submit that there was clear and

16 deliberate obstruction at the bridge and Sljivancanin lied about it, not

17 only at the time, but also to the press. We submit that Sljivancanin

18 prevented the representatives of the ICRC and the ECMM and the media from

19 accessing the hospital in the early hours or in the morning of the 20th of

20 November by blocking one of the bridges for two hours.

21 Tab 3 really is something that we can just look at very quickly

22 because there was an element of doubt of whether he was being believed at

23 the time. This is a Kypr exhibit, 320. It should be highlighted under C

24 in your file, and it says there of Vukovar, "two hours waiting in a centre

25 (demining?)." The other relates to the video.

Page 16073

1 Clearly, as a result, the international monitors were not able to

2 monitor the evacuation of the Ovcara victims. Firstly, we submit that

3 Sljivancanin alleged that there was ongoing fighting and that there was

4 demining. We also would ask the Court to bear in mind that at that time

5 we could see quite clearly vehicles crossing a bridge and there was also

6 clear evidence that people had been able to get to the hospital that

7 morning, namely Vukasinovic was able to take the buses across that morning

8 in preparation for the evacuation. So it was clearly a lie by

9 Sljivancanin, and the Court can come to its own conclusions in relation to

10 that.

11 Secondly, there was evidence from Korica who had said that he

12 travelled in the vehicle that morning with Sljivancanin, Vujic and others

13 and that Korica had said that Sljivancanin had indicated that everything

14 needed to be cleared at the hospital before the monitors arrived. And the

15 Court, equally, will bear in mind what I call the Basic document, which

16 was compiled by Basic, a Defence witness on behalf of Mrksic, where he

17 confirmed that the road was safe, although if when you went to the side it

18 may well be that there were mines.

19 And so I would submit that in relation to that, Sljivancanin was

20 aware of the timing of the arrival, he was aware because there was clear

21 evidence given that he had overheard -- was in a position to hear the

22 conversation between Bosanac and Borsinger on the 19th. That the

23 evacuation was to commence at 8.00 that morning. The Court may remember

24 that in actual fact Sljivancanin had said in evidence that he was

25 disappointed and surprised that Borsinger had not got to the hospital by

Page 16074

1 6.00. So it was wholly inconsistent with the evidence and entirely in

2 contradiction to what Korica and others had said.

3 We also submit that the lie that he made was at, as I've said

4 there on tab 5, "We have never prevented anyone from being present or

5 seeing what JNA units were doing nor did we ever take such a stand. We

6 are not banning this today during the evacuation of the hospital."

7 I suppose what can be said is this: If it was his intention to

8 clear away the Ovcara victims, he would have said that, wouldn't he. But

9 nevertheless, one would have expected him to say the reason that the

10 evacuation did not occur was because of fighting, firing, or concerns

11 about mining. This was a man who was cutting his cloth to suit whatever

12 clothes he wanted to wear on that occasion. And in relation to it, there

13 is, in our submission, clear evidence that he was lying repeatedly on

14 that, with the intention that those people were going to be evacuated.

15 The Defence brief at paragraphs 414 and 420, they say that the

16 international observers were not banned to enter the hospital, as they

17 were supposed to only monitor the second evacuation. That's why they

18 arrived at 10.30. That's complete and utter nonsense, in our submission,

19 in the most respectful way. We say it's completely contrary to what

20 Sljivancanin said in testimony because Sljivancanin said that he was

21 actually upset that Borsinger was not at the hospital by 6.00. Another

22 point that the monitors were keeping the public informed as they were

23 allowed to video. Well, of course, they were keeping them informed, but

24 only after 10.30, so that again is not a good point with the utmost

25 respect. And the Defence again argues that the monitors were stopped for

Page 16075

1 security reasons. And you have seen the reference to that and the

2 principle of the mere fact that something is stated is not evidence of the

3 truth of its contents I suspect will arise there.

4 Can I deal with Sljivancanin's argument with Borsinger and his

5 statement to the press. When the media finally gained access to the

6 hospital compound, they filmed the argument between Sljivancanin and

7 Borsinger. Borsinger later on made a public statement, noting the

8 impossibility for his institution to perform the task entrusted to them.

9 He alleged that OG South had breached the prior agreement and the Court

10 may remember the phrase: "I cannot do my job."

11 And so, in our submission, even though Mr. Sljivancanin may say,

12 Well, Borsinger and I are actually rather good friends and we got on

13 extremely well is complete nonsense. One has to look at the way he

14 behaved towards Borsinger in the most contemptuous way not trying to find

15 any common ground at all and dealing with him in an appalling, arrogant

16 way.

17 As I say, Sljivancanin denied that obstruction. He reacted with a

18 defiant statement to the press where he strongly criticised the ICRC and

19 confirmed his commanding role in the evacuation at that time. I remind

20 the Court of the two statements. A gentleman of the press, this is the

21 Yugoslav People's Army: "I am very proud to be at the head of such

22 soldiers and such officers. I told one gentlemen this morning here in my

23 homeland, in my country, I am the commander and I will respect and

24 acknowledge his laws and everything he tells me when I go to his country."

25 That is at tab 5. I will not digress to that but that relates to that.

Page 16076

1 The blocking of the international monitors proceeded the 20th. It

2 was also on the 18th and the 19th. Sljivancanin denied access to the

3 hospital, to the ECMM on the 18th and the 19th, alleging ongoing

4 fighting. That's the evidence of Schou and Kypr. Secondly, the

5 well-known dispute between Vance and Okun, although it wasn't Okun

6 himself, but Vance and Sljivancanin on the 19th. There is clearly the

7 video of the argument. You have heard much evidence about it. But,

8 again, it's the same excuse, security risk. The hospital was within OG

9 North and yet we submit that Sljivancanin was seen at the hospital about

10 6.00 that morning, same time of day, if the witness is to be believed.

11 And that will explain the fact that he had never contacted with OG South

12 or OG North.

13 Secondly, in relation to Okun again, the Court had an opportunity

14 of assessing this man. He testified in very precise terms that

15 Sljivancanin never consulted anybody before taking his decision. The

16 phrase that he used was: "We were under the control in the hands of

17 Sljivancanin. He was the principal interlocutor, the principal person

18 with whom Vance discussed this matter."

19 At tab 7 we have got that the ICRC were able to reach the hospital

20 in the evening of the 19th of November. That is Exhibit 322, and if we

21 could just turn that up for a moment, I would be very grateful. I've just

22 extracted the one page. It's paragraph 11. And we can see it: "The

23 international Red Cross had been ejected from the hospital at 2000 hours

24 on the 19th of November."

25 So, again, we submit that there is a deliberate policy by

Page 16077

1 Sljivancanin to ensure that these monitors did not have control and access

2 of the individuals in the hospital.

3 May I deal then now with a new topic, the Guards Motorised Brigade

4 security organs. We submit acted as the OG South security organs.

5 Mr. Sljivancanin says, of course, that that's not the case. It's

6 paragraphs 39 and 60 of the Defence brief. In our brief, and I'm not

7 going to rehearse it, it's paragraph 528 et al, we would wish to submit

8 the following, that OB Guards Motorised Brigade became the acting security

9 organs of OG South. Sljivancanin was commander of the former when Mrksic

10 was appointed to OG South commander.

11 Secondly, Sljivancanin's position and role has been confirmed by

12 his former colleagues and subordinates. There are no less than four

13 officers who gave evidence of it and two experts. Turfunovic, the

14 reference is there, Vojnovic, Vukasavljevic, and Vukasinovic, and then we

15 have Theunens, but perhaps more importantly, Vuga, who is actually

16 Sljivancanin's own expert.

17 May I ask the Court, please, I think it is tab 8. Yes, would you

18 be kind enough to turn up Mr. Sljivancanin's expert report, please. It

19 reads as follows on the report, page 50, and I've just put the one in:

20 "The commander of OG South, Commander Mile Mrksic, appointed among

21 other officers also Major Veselin Sljivancanin head of Guards Motorised

22 Brigade and south security organs," or safety organs as it is here.

23 And the next page as we have it, page 75, down at the bottom it

24 should be highlighted: "Major Sljivancanin in the part related to the

25 allocated jobs and tasks in security domain as superintendent of security

Page 16078

1 organ for his Guards Motorised Brigade and OG South. The timing was in

2 Vukovar and when OG South existed." And that's his own expert who made

3 that report, apart from others. The other tabs are 8, 9, 10, 11, and 12.

4 I'm not going to go into that if you don't mind.

5 May I deal with the Guards Motorised Brigade and OG South security

6 organs, whether they could issue orders to military policemen. The

7 Defence seem to suggest in their brief of pages 31 to 38 that in actual

8 fact they deny the possibility that the security organ could issue orders

9 to the military police. The OTP brief is 521 and 522. We seek to rely on

10 tab 13, Article 23.3 of the Rules of Service of the security organs in

11 this SFRY army forces which reads that: "The military police can also

12 perform OB functions under OB officer's authority with the approval of the

13 commander." That is tab 13.

14 It is what I will call clause 23 or Article 23, I suppose is more

15 precise. I'm not going to read it out comprehensively, but at the very

16 bottom it starts: "The deployment of units or individual members of the

17 military police to perform tasks within the security organs's competence

18 is determined by the security organ officer under paragraph 1 of this item

19 with the approval of the superior military officer."

20 The practical application of that is Karan, who gave evidence,

21 where he basically said in general terms that, for example, if a terrorist

22 group were to penetrate a certain area, then individual members of the

23 military police would practically be engaged in carrying out tasks that

24 belong to our remit. And Sljivancanin's expert, Vuga, confirmed that the

25 leading military police units in equipment trained fulfilment are among

Page 16079

1 the tasks that OB can participate. Again, if we look at tab 14, it should

2 be highlighted for you. It's -- the extraction is page 12. It's tab 14,

3 and there we have security organs participate in, and then "2.2, military

4 police work, in leading military police units, its equipment, training,

5 and fulfilment."

6 Therefore, our submission is as follows: That even though it is

7 usually the commander who issues orders to the military police, the chief

8 of security is not precluded from doing the same. And as I've already

9 said, there is evidence in relation to that, the triage, the subsequent

10 transport of the selected people at the Vukovar Hospital. And Panic and

11 Vuga confirmed the delegation of command responsibility over the military

12 police to Sljivancanin in the hospital evacuation, and that is tab 15.

13 Again, it should be highlighted, where there is a conclusion that:

14 "Security organs and military police of the 1st Guards Motorised Brigade

15 under the authority of Major Sljivancanin were executing that task in line

16 with all regulations and given the situation in the hospital and the city

17 of Vukovar."

18 May I deal with notice and knowledge. There is an element of

19 overlap with Mr. Mrksic, who I've not forgotten and will make some

20 submissions about in due course. Firstly, in relation to -- before the

21 fall of Vukovar, I seem to remember there are four heads in relation to

22 this. Firstly our brief, paras are 587 to 592 -- we would submit that by

23 October 1991 Sljivancanin was aware of the animosity that existed among

24 the Vukovar TO towards non-Serbs -- Croats, who were under a siege in

25 Vukovar, as well as the crimes committed by the former. There is clearly

Page 16080

1 a report in relation to that. It's at tab 16. I'm not going to go into

2 that, if I may, at this time, but in relation to that it was a report --

3 well, perhaps if I could ask you very quickly to look at tab 16. It

4 should be highlighted and fairly brief. It's 18th of October, so it's

5 actually one year -- one year, one month before the surrender of Vukovar.

6 I draw the Court's attention to the principal part commencing: "They are

7 treating the prisoners of war brutally and increasingly often killing them

8 on the spot and thus satisfy the justice," and then goes on about other

9 crimes being committed.

10 There is evidence, we would submit, that Sljivancanin himself

11 preferred being in the field rather than at his headquarters in

12 Negoslavci. The exhibits are there. I won't draw the Court's attention

13 to them at this time but merely to quote what Trifunovic said that he was

14 always practically every day at the front lines of contact with the enemy,

15 as a senior officer and security organ senior officer. That was not his

16 duty. We additionally submit that there are two heads. He spent so much

17 time in the field that some of the officers thought that his headquarters

18 were located elsewhere; and, that I believe is P018, and secondly that he

19 was seen as the person in charge in Vukovar, to whom Radic and the Vukovar

20 TO reported. Again, it's P018, saying that Captain Radic did not report

21 to Tesic, rather he reported to Sljivancanin. And as for the local

22 Chetniks and everything else, Sljivancanin was the one who had the main

23 say. He was practically in charge of all. Again, if that is to be

24 believed, it is significant evidence in relation to him.

25 And again the same witness: "In my opinion, he was the commander

Page 16081

1 of us all. Everything that happened, as regards the local Chetniks and

2 the military, Major Sljivancanin had to be informed about all of that."

3 One of the issues, clearly, that came up in the trial about the

4 meeting at Stanko Vujanovic's house. We submit that, again, there is

5 evidence there that Sljivancanin, Radic and other members such as

6 Karanfilov and as well as Vukovar TO members gathered at that house on a

7 regular basis. The existence and the need for these meetings was to

8 coordinate and agree on combat activities. That is actually Vukasinovic's

9 transcript, one of the Defence witnesses. That is at tab 20. If I may be

10 allowed for just one moment. That really relates to a paper article,

11 which I think he accepted. It's at -- the Court may remember that it was

12 a very hostile document by Vukasinovic, in particular against P002. And

13 one can see there, his reference to the meetings and to that

14 accommodation. The compilation of lists.

15 Sljivancanin received regular -- on a regular basis the names of

16 potential Croatian defenders from not only his local sources, but also

17 from the superior command. That's tabs 22, 23, and 24, where there are

18 clearly large numbers of names given, some of them who had similar names

19 for people who were killed at Ovcara. But, in any event, the point is

20 that there was an active policy of collating names of people who were

21 opponents of the JNA and that particular regime. And Sljivancanin, in his

22 capacity as head of the security organ, was at the hub of the wheel of

23 that collation. Again his attendance to the daily OG South meetings at

24 Negoslavci. He was informed of the reports and orders that he had

25 received, orders issued by Mrksic regarding the violent conduct of the

Page 16082

1 members of the Vukovar TO.

2 Here you have got tab 25, 19th of October order from

3 Zivota Panic. I'm not going to go over that again, but clearly it's

4 October. The Court may remember that I referred to an earlier document,

5 was the 18th of October. Here, is one day later -- then you have a combat

6 report of Exhibit 414 about motivation, not perhaps the strongest document

7 in the world but nevertheless showing a continuing problem existing. And

8 then Exhibit 415, at tab 26, which is the document everybody has seen

9 before and I am not going to repeat, but clearly applying to Mrksic as

10 much as Sljivancanin.

11 When one looks at the evidence of Trifunovic and that testimony,

12 Sljivancanin and Mrksic were aware of the reports on problems, between the

13 local population and the TO, that were reaching OG South headquarters

14 since the 18th of November. So in actual fact it's not just a continuing

15 course of conduct, but there is an exacerbation of the situation that is

16 developing at that time. So it's not a case of anybody saying, Well, we

17 weren't aware or we thought it had all died down. It's the timing that's

18 important in relation to that.

19 The meeting with Seselj. You have got Exhibit 885 and the page

20 number, and it's tab 27. This is the meeting which is hotly contested by

21 the Defence at Stanko Vujanovic's house on the 13th of November. And the

22 reason why 002 remembered that date, I'm sure is clear to all. But

23 Sljivancanin, Radic, and others of OG South and the Vukovar TO were

24 present. This is where Seselj is supposed to have uttered the famous

25 words: "Not a single Ustasha will leave Vukovar alive."

Page 16083

1 And in our submission, there is evidence that Sljivancanin had a

2 positive opinion of both Seselj and Arkan; that was in his transcript in

3 relation to cross-examination on a document, which he accepted. So

4 therefore we submit three things in relation to P002, who is an important

5 witness; that he added the name of Sljivancanin right after the meeting in

6 Vukovar, that when P002 was shown the notebook that he confirmed that

7 Sljivancanin was in the notebook as a person who was present at the

8 meeting, and then thirdly, that P002 testified that he had heard

9 Sljivancanin talking, as he had a distinctive voice but he did not write

10 down anything of what Sljivancanin had said. So we would submit, again,

11 that that is important evidence.

12 I'm moving on with notice. Prior to the hospital evacuation our

13 brief page numbers -- paragraph numbers are 593 to 598. Here the Vukovar

14 TO units were -- there was a threatening presence at the hospital on the

15 19th of November. Simic requested reinforcements from Paunovic and a

16 military police platoon was subsequently sent on the 20th. Sljivancanin,

17 we submit, was present on the 19th at Vukovar Hospital before and after

18 the briefing at 1800 hours. And we would submit that a perfectly sensible

19 conclusion to draw is that he had had to witness those events. And in

20 relation to that, Trifunovic says that Sljivancanin was aware of TO

21 trouble reaching OG South on the 18th and 19th prior to the hospital

22 evacuation and that there were numerous witnesses that gave evidence that

23 TO units were indeed threatening at that time and a threatening presence.

24 May I deal with the Velepromet evacuation on the night of the 19th

25 of November? That's from the hospital. I would like to deal with this

Page 16084

1 under two specific heads. Firstly, with regard to prior knowledge. The

2 Court may remember that Borisavljevic who was subordinated to Sljivancanin

3 was appointed by Sljivancanin as the manager/supervisor at Velepromet.

4 I would like you, please, to turn to tab 28 on that, although the

5 document will be quite clear in your recollection. It's highlighted for

6 you. And you've got there the 10th of November, the Centre for the

7 Admission of Civilians and Preservation of Material Goods, which is, and I

8 underline the words, directly managed by Borisavljevic. This is not a

9 case of him just being there; it's a case of management. And as such,

10 being directly subordinated to Sljivancanin, the sort of officer that

11 Sljivancanin was, the tasks that he undertook, and the way he sought

12 knowledge, it was clear that he would know what was occurring.

13 Secondly, that the security organ participated and reported in

14 processing prisoners, including Velepromet. That's tab 29 and tab 30.

15 And that relates to tab 28, so we go back in time and tab 11. But in any

16 event, the point is, of course, that there was a reporting there.

17 So Sljivancanin with Mrksic has authorisation, briefed Vujic and

18 other security officers, sent by the security administration at the SSNO

19 and the 1st military district on the evacuation of the prisoners of war

20 held at Velepromet. And, of course, again, we have one hotly-contested

21 topic here where Vujic says quite simply that Sljivancanin said: "Don't

22 be surprised if you find Chetniks there slaughtering Ustashas."

23 Well, that has been extensively cross-examined on. I merely put

24 it this way: You had an opportunity of seeing Vujic. I would submit he

25 is a brave man. I would submit that he is an honourable man, and I would

Page 16085

1 submit, above all, that he is an honest man. He is not the type of

2 individual who will say something like that with its obvious consequence

3 if it was not true. And indeed I would submit it fits well into the

4 picture of what was going on at that time.

5 Dealing with subsequent knowledge, Vujic reported the Velepromet

6 events to Sljivancanin that same night. The killings occurred there and

7 killings were committed there. Again, it's denied that Sljivancanin, we

8 say, confirmed that the mission had indeed been completed. It's contested

9 but we would submit that it falls into the picture of what was occurring

10 at that time.

11 Sljivancanin was also present the following morning when Vujic

12 ordered Kijanovic, who was also one of the members of the SSNO team, to

13 inspect Velepromet and the surroundings to locate bodies. And that

14 evening, Kijanovic reported to Vujic that 17 bodies had been collected and

15 buried in the military cemetery with the assistance of Mrksic's officers.

16 One point in the Defence brief at paragraphs 214 to 224, they

17 state that the evacuation of civilians to Velepromet on the 19th of

18 November was proposed by Sljivancanin and Borsinger, jointly, and with

19 purpose to relieve the hospital and prepare it for the evacuation of the

20 wounded and the sick.

21 Our submission is that simply does not make sense because they

22 could have evacuated all of them that night or on the 20th prior to the

23 sick and wounded evacuation. And again, it's a disingenuous piece of

24 evidence.

25 May I move to the Mitnica evacuation, because we submit that

Page 16086

1 Sljivancanin was also responsible for the Mitnica evacuation on the 18th

2 of November. Our briefs are -- paragraph of the brief is 535-536, and

3 this relates to the Karanfilov identification which is very important

4 indeed.

5 I'd like to just draw the Court's attention to two parts.

6 Firstly, Sljivancanin was -- had sent Karanfilov to the Mitnica

7 negotiations, and it was Karanfilov who reported to Sljivancanin about the

8 outcome of those negotiations. Secondly, Sljivancanin sent Karanfilov to

9 Ovcara, we submit, to convey orders to Vezmarovic because he, as the 80th

10 Motorised Brigade officer responsible for the safety of the prisoners of

11 war during the night, that Karanfilov and Vezmarovic had met at daylight

12 on the 18th when Karanfilov was introduced and had extensive dealings with

13 Vezmarovic.

14 The importance, clearly, of that, and I will try and deal with it

15 if time permits, is that when one deals with the identification of

16 Karanfilov on the 20th, you have got probably the best identification that

17 one can achieve. You have got identification on the 18th by way of

18 introduction. You have got the name written in the book so there is no

19 dispute, and you have got the fact that Vezmarovic and Karanfilov dealt

20 with each other, I believe, for 15 or 20 minutes.

21 On the 19th -- and that was at dusk. On the 19th you have clearly

22 got the attendance by Karanfilov for one and a half hours with the

23 evacuation with Vezmarovic present. You have got, therefore, confirmation

24 of what I will call recognition. And in relation to the 20th, you have

25 got Vezmarovic saying that he had dealings with Karanfilov for half an

Page 16087

1 hour and that he had interacted with this officer on the previous

2 occasions. I will try and deal with it if I can, but that is the nature

3 of that evidence. In our submission, it is extremely strong.

4 In any event, the following morning, on the 19th, Karanfilov was

5 present at Ovcara where there was the handover and Karanfilov had dealings

6 with Vezmarovic, informing him that he had to type-up a list of detainees.

7 And as I say, Karanfilov's name was recorded in the notebook.

8 May I deal with the OTP brief, paras 537, because here

9 Sljivancanin was present at Ovcara for quite a long time. Two areas of

10 evidence here, one of them we submit is extremely important. In the late

11 afternoon, Sljivancanin ordered P014, (redacted)

12 (redacted), to post soldiers on guard duty over the vehicles until their

13 transport to Velepromet that night, although, of course, the Defence say

14 that was the 19th. That may well be a moot point when, in actual fact,

15 the vehicles were removed. Some might think they were removed to make

16 sure that there was nobody there to see what was happening, but it is

17 clearly an area of dispute.

18 But I would submit the second point is the more important point,

19 and that is that during the night, Sljivancanin approached the buses of

20 the Mitnica civilian evacuees. He was in the presence or accompanied by

21 TO members and ordered a separation of men from women. The women refused

22 such a separation, and after a heated argument, Sljivancanin allowed all

23 the civilians to board together. And a TO member told, as it was, Foro's

24 husband, that they would not have been released, their fate would have

25 been another. So that evidence, in my submission, is important because it

Page 16088

1 shows that as early as the 18th there was clearly a selection process

2 where males were being isolated and by comments made, if Foro was correct,

3 that in actual fact there was an intention that something was going to

4 happen to them.

5 20th of November, hospital evacuation. The brief pages are

6 paragraphs 599 to 609. Here really goes to the rationale, because what we

7 say is that the Mitnica evacuation, they had behaved in a way that could

8 be seen to be almost military and therefore were accorded the appropriate

9 protection. Of course, one wonders whether that would have been the case

10 if the ICRC had not been there and Sky television, but that is mere

11 speculation and perhaps should go no further. But it is perfectly clear

12 that there was a distinction drawn between what I will call soldiers

13 against criminals, and the defenders who had sought shelter at the

14 hospital. So you had the Mitnica Battalion and the people at the

15 hospital.

16 Karanfilov and Karan and Sljivancanin expressed the view that to

17 find the suspected Vukovar defenders at the hospital who sought shelter as

18 criminals and terrorists. And he distinguished them from the Mitnica

19 Battalion and stated that they would receive a different treatment than

20 the latter group. And, in our submission, that lies at the heart of this

21 case, the perception of the people who were held up in the hospital.

22 Moving on. The selection or triage by the use of lists in

23 Vukovar. I can't help but think that Conan Doyle was correct when he

24 referred to the Hound of the Baskervilles and said, "That's just it

25 Watson, the dog didn't bark." Because here it was a case that there were

Page 16089

1 no lists. It is the absence of the list that is the significant element in

2 relation to the triage at the hospital. The security organ made use of

3 lists in order to identify potential criminals who were hiding in the

4 hospital, and we have got Kolesar, Dosen, and P021 giving evidence about

5 that, and Sljivancanin and Karan were involved in that.

6 It's also significant and surprising in a way, and I deal with

7 Mr. Radic, if I may, in a slightly elliptical way. Clearly, part of the

8 Prosecution evidence is that Njavro had said that when the person came

9 that he was Radic and that he was looking for a colleague, but whoever

10 that person was was certainly operating on a basis of identification,

11 trying to find out who was what, whether they were injured, whether they

12 were not. We still maintain that it was Radic, but if it wasn't Radic,

13 then clearly it would have been Karan, because Karan actually knew that

14 particular doctor.

15 It's a matter for the Court to decide, but if the Court came to

16 the view it was Karan, then it means that Karan is operating as early as

17 the 18th going around the hospital trying to find out exactly who or who

18 is not genuine and trying to find out who they were. But as I say, it is

19 a concession that we made and we stick by it. But clearly no woman were

20 envisaged to be searched, no lists were compiled, and this course of

21 action clearly contradicts procedures applicable to prisoners of war and

22 indeed even if it is said, Well, the circumstances were such that it could

23 not be done, that does not hold water. Because, quite simply, lists were

24 done for Mitnica and the triage or triage technique that was adopted of

25 stopping and searching, it would have been perfectly easy for names to

Page 16090

1 have been listed.

2 In relation to the third point, the chosen Vukovar TO, that's

3 Miroljub and Bogdan Kuzmic and others participated, along with the

4 military police, as Mr. Sljivancanin acknowledged, in the first selection

5 and indeed in the reselection of those individuals. And as I say, and

6 importantly, that included Miroljub Vujevic who appeared later on. The

7 use of the military police in the triage and the searching following

8 orders of Sljivancanin contradicts Paunovic and Simic who denied that

9 their man received orders from Sljivancanin. Nevertheless, Paunovic did

10 not stay at the hospital the entire time and Simic was not aware of what

11 was going on inside or, as it seems sometimes, outside the hospital.

12 But I think it is correct to say that Sljivancanin, at transcript

13 13.628, he said that they did participate. And with regard to the

14 reselection process, Sljivancanin ordered the returned men, that we say

15 had been brought by Radic and Vukasinovic, to line up and Miroljub Vujovic

16 and Bogdan Kuzmic indicated to Sljivancanin who was ideologically

17 suitable, who were Ustashas, as I've already indicated before and will not

18 repeat. It is not without significance, unfortunately, that the bodies of

19 nine of those people who were put back on that bus were exhumed in Ovcara.

20 The presence at the barracks, I am not going to go into in any

21 detail. I've tried to deal with it previously, but clearly there is

22 evidence of that. It comes from P009. You have the evidence in relation

23 to that. The presence at Ovcara you have got P009 and Zlogledja and again

24 you have got and heard the evidence of it, so if I may, I will go past

25 that.

Page 16091

1 I want to deal - and I've almost reached the end of this part -

2 about the reporting to Sljivancanin by his subordinates because clearly

3 that subordinate relationship is important. There are four heads that we

4 would seek to rely on here. Vukasinovic and Karanfilov reported to him on

5 the barracks incident, and by common consent of their evidence, he did not

6 adopt any measures, despite being responsible for their safety and having

7 a radio. The Court may well remember that.

8 Secondly, Sljivancanin was further informed again by Vukasinovic,

9 if he's to be believed, about the severe beatings at Ovcara, bearing in

10 mind he's also given evidence that he told Sljivancanin about the incident

11 at the barracks.

12 Thirdly, Sljivancanin arrived at the OG South headquarters on the

13 20th of November to attend the regular 1800 hours briefing. So we would

14 submit he was present when Vojinovic informed Mrksic of the Ovcara

15 beatings and when Mrksic indicated that he was already aware of the

16 situation and of the clear indication that the 80th should leave Ovcara.

17 And finally, that, although it's not the strongest point and it

18 has a curious evidential position, that Sljivancanin, Vukasinovic

19 testified in prior statements that they had gone to Ovcara the night of

20 the 20th following Mrksic's orders. So that is the case of course of what

21 Vukasinovic and Sljivancanin have said; whether true or not is fortunately

22 a matter for the Court and not for me. But it is quite clear that

23 Sljivancanin, if he was at that briefing, was in a position to be aware

24 about the information given to Mrksic by Vojnovic.

25 Dealing with his presence at the various sites of the evacuation,

Page 16092

1 we would submit is entirely consistent with the commanding role over all

2 the evacuation. And in relation to subsequent knowledge of Sljivancanin

3 about the killings, that is our paragraphs 610 and 611. We have the

4 evidence of Hartmann on the 18th of November, 1992, during the celebration

5 of the fall of Vukovar. Hartmann had spoken to Sljivancanin, "What

6 happened in Ovcara one has to bury the bodies somewhere." That is

7 completely denied. I don't know what people's views are on Hartmann or

8 journalists, whether in actual fact she came across as a credible witness,

9 I would submit yes. If in actual fact he did know and he was a

10 participant, as we allege, then it is a perfectly obvious comment to make

11 perhaps if Court unawares and with regard to Vukasinovic and clearly there

12 was a close relationship between Vukasinovic and Sljivancanin.

13 Vukasinovic, himself, said that the rumours of the killings were

14 circulating around Vukovar on the 21st of November the next day. That was

15 just one day after the event. And Vukasinovic's deputy had reported to

16 him: "Boss, we heard that the people from Ovcara disappeared overnight

17 and they were taken away to be liquidated."

18 We of course know that Vukasavljevic gave evidence that he had

19 informed the security organ but they did not want to do anything and that

20 relates to tab 31 which I'm not going to refer to.

21 Those would be the points that I would seek to refer to in

22 relation to Mr. Sljivancanin. And I'm not finished with Mr. Sljivancanin,

23 but I have for the time being,. But may I then move on with the Court's

24 leave -- may I move on then please --

25 JUDGE THELIN: Mr. Moore, before you do, I have a question to put,

Page 16093

1 not to put you off track here. It may be that I'm misremembering, but

2 there seems to be information that General Vasiljevic from the department

3 of defence was present in the evening of the 20th and had some dealings

4 with Mr. Sljivancanin and also in that context a information from him that

5 one should try to spare the maximum amount of prisoners of war in order to

6 secure a future exchange between them and prisoners from the other side.

7 I would like to hear -- it may be that had you thought to come back to

8 this, but I would like to have now your comments on that, if that is

9 contested; if not how that plays into the wider scheme of things as the

10 Prosecution sees it.

11 MR. MOORE: If my memory is correct in relation to the Mitnica

12 evacuation, Sljivancanin was shown a telegram by -- I think from

13 Vasiljevic and showed it to Vukasinovic saying, What do you make of that?

14 That was the first dealings with Vasiljevic at that time. The second

15 evidence was in relation to Karanfilov, who I believe from memory said

16 that there had been an argument between Vasiljevic and Sljivancanin on the

17 19th where there had been, I will use my words, raised voices between

18 them. The Prosecution's position would be as follows. It is impossible

19 to know exactly what was occurring at that time. I will not speculate,

20 but in our submission it is deeply unusual for an officer who is of major

21 rank to be raising his voice towards Sljivancanin, towards a superior

22 officer like Vasiljevic in the presence and hearing of others. One of the

23 interpretations that is capable, is that Sljivancanin strongly disapproved

24 of the order that Vasiljevic had given and that he had seen on the 18th,

25 but there was no reference as far as I can recollect that Sljivancanin in

Page 16094

1 his evidence said that he tried to apply that requirement of Vasiljevic

2 when it came to the collation or the collection of the individuals who

3 were going to be taken to Sremska Mitrovica. We are not able to say one

4 way or other. The only matter that we find and we submit is unusual is

5 his reaction on the 18th to Vukasinovic and his reaction and argument with

6 Vasiljevic on the 19th. I'm afraid I would not be able to take it any

7 further, and the Prosecution cannot take a definitive stand on that one

8 way or other.

9 JUDGE THELIN: Thank you. You satisfied my need. Thank you,

10 Mr. Moore.

11 MR. MOORE: I'm not quite sure which way to take that but I will

12 try and avoid it in any event.

13 May I move on, please, to Mr. Mrksic.

14 We have applied the same principle with Mr. Mrksic.

15 [Prosecution counsel confer]

16 MR. MOORE: No, I think there may be an error. The only thing

17 that the Court should have should be the file, should be nothing else.

18 No, that should not -- I don't know why that has happened. May I have it

19 back? I had prepared for various eventualities and I will try and deal

20 with it now expeditiously. Can we just count that the Defence have sent

21 them all back.

22 May I just deal then with Mr. Mrksic. Exactly the same principle

23 applies. I've tried or we have tried, others have tried, to try and pick

24 out documents and parts that we submit are important. The starting point

25 is that Mrksic's position was that he was clearly the commander of the

Page 16095

1 Guards Motorised Brigade and he was commander of Operations Group South,

2 that started on the 8th of October, 1991. In relation to tab 1, Exhibit

3 591, you will find it there. I suspect it is not necessary but Trifunovic

4 gives a very clear indication of what it is. He said that: "The zone of

5 operations was taken over by the Guards Motorised Brigade and the command

6 of the Guards Motorised Brigade transformed itself into the command of the

7 Operations Group South and the then-commander, Mrksic, was appointed as

8 commander of the Operations Group South." That comment, by Trifunovic,

9 applies equally to Sljivancanin as it does to Mrksic.

10 Our second point is that Operations Group South was a temporary

11 formation. It related to the Guards Motorised Brigade, 80th Motorised

12 Brigade, Territorial Defence, and various volunteer units. And the period

13 of its duration was until the 23rd of November when he signed his last

14 order as commander of OG South, and that is tab 2. There is no need,

15 perhaps, to deal with that.

16 Could I ask you, please, if you would be kind enough to look at

17 tab 3, because there is one of the important topics which relates to

18 resubordination. The time is 600 hours in the morning, and it relates to

19 the resubordination of the Leva Supoderica volunteers and Vukovar TO and

20 that's signed by Mrksic, and that clearly is after the killings and

21 clearly the Guards Motorised Brigade was the chief force within OG South.

22 Vukasinovic and Trifunovic said in actual fact that it was quite clear

23 that Mrksic had uncontested control of OG South and that his command was

24 never challenged. Indeed, that never has been an issue in the trial

25 itself.

Page 16096

1 With regard to de facto -- de jure duties. The brigade commander

2 has: "The exclusive right to command all brigade units and attached

3 units." That is tab 4 and it relates quite specifically to that.

4 Secondly, tab 5 relates to delegation -- that a commander can delegate

5 authority to officers subordinated to him. However, he cannot delegate

6 the responsibility for the situation in the units and, this is the

7 important point, remains responsible for their actions including those

8 resulting from this delegation. And one can see under tab 4 and tab 5 in

9 relation to brigade rules where that is actually specifically referred to

10 and marked up.

11 Again, dealing with delegation of powers, the delegation of an

12 operation by a commander officer to a subordinate officer would not, in

13 our submission, diminish the commander's obligation to ensure a successful

14 completion of the task. That was Pringle who gave that evidence at

15 T 11051, and I quote him: "The commander is fully responsible for

16 everything that happens under his command, by those under his command, and

17 in his area of responsibility."

18 And in order to be able to exercise command and control, a brigade

19 commander has to know the situation of the companies of his battalions,

20 because otherwise the brigade commander cannot issue orders to these

21 battalions." That was evidence given by Theunens at 10715.

22 It's axiomatic, is it not, that under tab 6 that you have the

23 obligation for humane treatment of wounded and captured persons, and we

24 will deal with that issue, I hope, on Friday.

25 A commander is obliged to report a crime to his superiors or

Page 16097

1 initiate an investigation.

2 That in our submission is important. Clearly we have got JNA

3 regulations on that under tab 7, if I could ask you to be kind enough to

4 turn that over. Because that is Articles 21 and Articles 36. The

5 obligations that are placed upon him, and again he has a duty to protect

6 captured members of enemy forces, which is Article 51 of that same code of

7 conduct.

8 Therefore, the Defence assertion that Mrksic himself cannot order

9 his military police to investigate is flawed. We submit it has no merit

10 at all, and that is paragraphs 55 to 59 of the Mrksic brief. And as

11 indicated by a military police commander who gave evidence before the

12 Court, namely Paunovic, the Guards Motorised Brigade commander had direct

13 control of the military police.

14 May I deal with the issues of his de facto command and control.

15 Trifunovic, at 8113, said that: "The commander of OG South was informed

16 about all important questions."

17 And we would submit that when you look at our brief, paragraphs 86

18 to 89 it was perfectly clear that the commander, namely Mr. Mrksic, had a

19 well-trained and functioning, efficiently functioning system for executing

20 command and control functions themselves. Pringle, when asked to look at

21 it in the perspective of command responsibility, command and control, at

22 T 11034, he said as follows.

23 "... it's clear to me that there was a functioning command and

24 control system with information and orders flowing down the chain of

25 command and information flowing up the chain of command, and that's

Page 16098

1 exactly what I would expect."

2 And the other matter that we would seek to pray in aid, at this

3 point, is that the war diary, which clearly recorded the most important

4 features and orders, reports sent and received by OG South, indicates that

5 between the 1st of October and the 23rd of November there was clearly a

6 functioning command -- functioning chain of command and reporting system

7 between OG South and the superior and subordinate commands and units.

8 That is Exhibit 401 for the Guards Motorised Brigade war diary.

9 The OG South command briefings were clearly on a daily basis.

10 They were attended, obviously, by Mrksic; his Chief of Staff Panic; his

11 assistant chiefs, including Sljivancanin; as well as all the subordinate

12 commanders. During those meetings, which is perfectly logical,

13 subordinate commanders reported to Mrksic and they received tasks from

14 Mrksic. And as I've already said, all members of OG South command were

15 subordinated commanders who were duty-bound to attend the daily command

16 briefing.

17 In conclusion, therefore, when one deals with this topic, what we

18 submit is this, we submit that Mrksic's position and from the command and

19 control system existing at the time, that he, Mile Mrksic, as commander of

20 OG South had full control of troops that was subordinated to him; he had

21 appropriate troops and sufficient troops in order to take preventative

22 measures or to deal with problematic situations if that became apparent.

23 Not only that, but he also had an obligation to ensure that no such things

24 occurred.

25 Quoting Theunens again, he said: "It was a very strong

Page 16099

1 brigade ... it had the very best manpower."

2 I would like to deal with Mrksic's control over the evacuation of

3 the hospital. On the 18th of November at 0040 hours, OG South received an

4 order from the commander of the 1st Military District, Zivota Panic, and I

5 quote at exhibit 415, tab 8, if the Court would like to turn it up. It's

6 page 2.

7 To: "... take the hospital and the MUP building ... mop-up the

8 remaining Ustasha forces in the liberated parts of the town on the morning

9 of the 19th November by 1000 hours."

10 In a regular combat report sent by the 1st Military District on

11 the 20th of November, Mrksic made a reply. You'll find it in our brief

12 paragraphs 49, 125, 132, and 192, so if I just deal with paragraph -- at

13 tab 9, please. It's highlighted on the first page, one of three, that in

14 actual fact that: "This task was carried out by 1100 hours on the 19th of

15 the 11th and safe movement through town and control protection service

16 were secured."

17 I ask you, please, to reflect on the explanation given by

18 Sljivancanin about why it was that Vance could not visit the Vukovar

19 Hospital, when in actual fact the Vance visit was between 11.00 and I

20 believe 1.00 or close to 2.00 on that very same day. And yet, security

21 reasons were given for that nonattendance by Vance.

22 Again, as we know, there was an agreement, that had been signed,

23 sometimes known as the Zagreb or Evacuation Agreement. We accept clearly

24 that when it was signed, it's difficult sometimes to assess, but clearly

25 there was an intention to do so. There were documents signed. But the

Page 16100

1 important point is that it was an agreement, it was providing the

2 evacuation of the wounded and the sick undergoing medical treatment at the

3 hospital, the agreement also indicated that the hospital would be put

4 under the protection of the International Committee of the Red Cross and

5 clearly the monitors. And on the 19th of November Mrksic was informed of

6 the existence and the content of the evacuation when he met Dr. Bosanac

7 who was clearly the director of the hospital. Bosanac said at transcript

8 page 670: "I told him that an agreement had been signed in Zagreb. On

9 behalf of the Croatian government and on behalf of General Raseta who was

10 representing the JNA, as well as on behalf of the ECMM. This agreement

11 specified the exact modality and route to be taken by the evacuation. I

12 told him that, on the afternoon of the 19th in Negoslavci when we talked."

13 And again, there was confirmation that he was the officer in

14 command in his zone of responsibility. Mrksic actually told Bosanac that

15 it was him who was going to organise the evacuation, and that is confirmed

16 in the evidence of Pringle, where Pringle said that: "The commander could

17 not possibly be unaware of the evacuation because it is a major operation

18 occurring in his area of responsibility. So it is inconceivable that he

19 would be unaware of it. Being aware of it, for the reasons I have just

20 said, I would expect the commander to, with his staff, plan and issue the

21 orders for what is, in effect, a very complex organisation [sic]." That's

22 page 11051.

23 We have heard evidence, and I have already submitted on it, that

24 at the daily command briefing on the 19th of November Mrksic delegated or

25 placed Sljivancanin in charge of the evacuation of the hospital. I repeat

Page 16101

1 the reference that I've already made about Vujic at T 4530 saying

2 that: "Major Sljivancanin said that the hospital was to be vacated

3 according to an evacuation plan and that he, Major Sljivancanin, "would be

4 personally in charge of it."

5 Panic, who was the chief of staff of OG South gave a statement to

6 the Office of the Prosecutor where he stated as follows.

7 "It was unusual for a security officer to be given the

8 responsibility for an evacuation operation. However, I assume Mrksic

9 appointed Sljivancanin to the position because of the important role the

10 security organ had to play in the operation. Sljivancanin was not only

11 responsible for the selection of the prisoners, he also commanded the

12 entire evacuation of the people to Sremska Mitrovica. This implied

13 that "Sljivancanin was able to issue orders to the military police or any

14 other unit participating in the operation."

15 Well, clearly that is the statement of Panic, and Panic, with the

16 utmost respect to him, went around in circles trying to get away from that

17 statement. But I would ask the Court to look at the way the statement was

18 compiled, to see the methods that were used for the compilation, and the

19 fail-safe devices to ensure that it was accurately recorded. Because

20 Panic, as I said -- he said that the questions were not there, then he

21 said that he perhaps spoke in haste. And what we would submit is that in

22 actual fact that that is incorrect, that he was trying to modify his

23 statement to facilitate Sljivancanin and, to some extent, Mrksic.

24 And when one analyses the taking of the statement, I would submit

25 it is a true statement, because Panic gave a statement or that statement

Page 16102

1 over a three-day period to the officer of the Prosecutor, in July 2005,

2 that's T 14484. When the statement was completed, he did not sign the

3 English copy because he wanted to read it in the Serbian language. And

4 that's at T 14485. In September 2005, two months later, he again met

5 investigators who provided him with a translation of the statement as

6 requested by him in this Serbian language where he read it for two to

7 three hours. He made extensive and detailed corrections on almost every

8 page of the statement. The Court saw them. After all the changes were

9 made, a new copy was printed in the Serbian language and Panic signed each

10 and every page of the statement. Answering one question during his

11 evidence, in reference to an entry in his written statement, Panic

12 stated: "If that's what's written there, that's what I said." And I

13 would submit it is accurate and truthful.

14 May I deal then please with one or two other matters. The Mrksic

15 Defence brief have stated -- team have stated in their closing brief at

16 paragraphs 172 that, based on the 1st Military District command order,

17 Colonel Mrksic got the task for his OG South unit to evacuate the sick,

18 wounded patients in Vukovar Hospital, medical staff together with OG

19 North. There is no written order from Mrksic's superior that is available

20 with regard to the hospital evacuation. It may be said that a logical

21 inference can be made that Mrksic did receive the task of evacuating the

22 hospital from the 1st Military District. In that, that there was an

23 evacuation agreement that was negotiated at a high level, either and both

24 with the military and political hierarchy. Mrksic told Bosanac that he

25 would be in charge of the evacuation and he clearly placed Sljivancanin in

Page 16103

1 charge.

2 Sljivancanin himself told Vujic that he was in charge of the

3 evacuation, and Mrksic issued an order on the morning of the 20th of

4 November tasking his units to proceed with that evacuation. This is

5 reinforced by the fact that it was a high-profile operation such as the

6 evacuation demands careful planning and situation awareness and Mrksic

7 would be expected to exercise tight control and supervision over the

8 responsible commander. That is in the Pringle's report, paragraphs 34 and

9 68.

10 So therefore, in actual fact, in planning an evacuation, Mrksic

11 would have taken and should have taken a number of factors into

12 consideration, such as the details of the high-level agreement,

13 transportation and escorts, route security and route clearance, security

14 of the evacuees, communication with opposing forces, arrangements and

15 escorts, command and control arrangements, handover and reception

16 arrangements, and administrative arrangements including food, water, and

17 medical support, compliance with the Geneva Convention.

18 However, when one looks at the actual written order itself which

19 is Exhibit 419, you will see that in actual fact it is drafted in very

20 short and very vague terms, and we would submit, bearing in mind Pringle's

21 report, paragraph 70 and Exhibit 419 - I don't have I'm afraid with me -

22 notes that assuming the possibility that such detailed arrangements were

23 ordered orally, that you would expect a record would be noted in the war

24 diary. He also indicated that where there is a record for such

25 arrangements for the Mitnica evacuation on the 18th of November, such

Page 16104

1 record does not appear in the war diary for the 20th of November. And as

2 we have mentioned earlier, you would expect that to contain all matters of

3 importance.

4 In conclusion, therefore, we submit the following: That Mrksic

5 knew of the existence of an evacuation agreement; that he had a briefing

6 with his staff a day prior to the evacuation and distributed tasks,

7 putting Sljivancanin in charge of the entire evacuation; and Mrksic

8 remained responsible for the successful completion of the evacuation,

9 despite the fact that he had delegated it to Sljivancanin himself.

10 Finally, I think we finish at a quarter to 6.00 for the second

11 part, I'd like to deal if I may with the prior knowledge of crimes

12 committed by subordinates for Mr. Mrksic. We would submit that he had

13 prior knowledge of crimes committed by subordinates, included subordinated

14 units such as the TO Petrova Gora and Leva Supoderica during the months of

15 October and November, and that has been extensively covered by us in the

16 Prosecution brief, paragraphs 270 to 293.

17 I would, however, just wish to deal with one incident and that

18 refers clearly to the killings at Ovcara, because on the night of the 19th

19 of November, Vujic was sent by Mrksic and Sljivancanin to monitor the

20 situation at Velepromet. Clearly Vujic went. We submit that he witnessed

21 the violent behaviour of the TO members. He had to use force and

22 threatened to shoot from an APC unless the TO let the prisoners go. And

23 that same night, Vujic returned to OG South command and addressed Mrksic

24 in the following way and the Court will remember quite clearly the words:

25 "Commander, do you have any idea what is going on over there?

Page 16105

1 People killed. This is an attack against the integrity of the JNA. This

2 is an attack against you as a commander. This is an attack against us

3 all. There was a Chetnik duke, as they called him, who wanted to slit my

4 throat in front of all the Ustashas on that bus. That is a disgrace."

5 Now, of course, that is contested and the Court will remember that

6 the evidence of Kolesar was saying that he was with Vujic when he

7 returned; that is not correct. Kolesar said in actual fact that he

8 proceeded Vujic and that he went downstairs to eat. In our submission,

9 again, it comes down to the credibility of Vujic and the assessment of him

10 and I would submit that Vujic is not the sort of man who would say that

11 about a fellow officer if it were not unfortunately true.

12 Might I inquire when Your Honour wishes to rise?

13 JUDGE VAN DEN WYNGAERT: [Microphone not activated]

14 So we shall adjourn for 20 minutes -- half an hour, I'm sorry,

15 because we had to make a redaction. So it will be half an hour. It was

16 an unfortunate mentioning of a person.

17 --- Recess taken at 5.39 p.m.

18 --- On resuming at 6.10 p.m.

19 MR. MOORE: May I thank the Court, firstly, for letting us have

20 the day. We will do our very best to finish today, although, I consider

21 and I think with my learned friend that we have about an hour and a half

22 but we will finish by 7.00.

23 JUDGE VAN DEN WYNGAERT: Thank you for that, Mr. Moore.

24 MR. MOORE: There can be only one thing worse than actually

25 speaking a marathon and that is probably listening to it and I will

Page 16106

1 endeavour to ensure that it does not last much longer.

2 I will try and therefore deal with matters in abbreviated form.

3 Clearly the issue of the order to Panic is an important aspect of the

4 case. We say that there is clear evidence that Mrksic ordered Panic to

5 attend the meeting, that he told Panic that he should agree to whatever

6 they decided. We submit that that clearly is an order of enormous

7 importance in relation to consequences, and Mrksic's participation as a

8 member of the joint criminal enterprise. I also seek to pray in aid

9 Vujic's comments on what government they were referring to. Panic's gave

10 evidence. He said that he conveyed Mrksic's order to the local

11 government, my emphasis. "I told them that the commander had told me that

12 he would accept their decision," and that Mrksic's words, when he had been

13 informed by Panic that he had conveyed his order, brief paragraph 422-424,

14 Mrksic had replied: "Let it be as they decided." That's at 14322. So

15 there's clear evidence of ordering, we submit, in relation to that.

16 Surprisingly, in Mrksic's final brief, if I move off topic

17 slightly, at paragraph 491, the Defence submit that Mrksic heard through

18 Panic what was happening at Ovcara. If that is the case, a little

19 surprising we would submit, because it seemed to be that the Defence of

20 Mrksic was suggesting that he did not know and then he was knowing. But

21 in any event, when we deal with Vojnovic, clearly Vojnovic is an important

22 witness. He said that he had spoken to Mrksic at the briefing

23 saying, "Colonel, sir, who are we to do?" Mrksic had replied angle: "Why

24 are you reporting to him on this because he didn't have the time to deal

25 with it?" Vojnovic stating: "I understood it as an order that I

Page 16107

1 shouldn't be there."

2 It's clear that Mrksic does not say by may of Vojnovic: "I order

3 you to withdraw," but the nature of the response, the way that it was

4 said, the conduct of Mrksic in relation to it was clearly an intention by

5 Mrksic to convey to Vojnovic to withdraw the protecting troops and it was

6 an implied order. And Vojnovic himself said: "I understood it as an

7 order that I shouldn't be there."

8 If I may move on again with regard to the Karanfilov situation and

9 Vezmarovic. Vezmarovic said that Karanfilov had told him that there had

10 been a meeting and that he should not be there. In my submission, the

11 important piece of that evidence is at 8437, transcript page, because

12 there Vezmarovic said that saying that I should pull out my units -- I

13 should pull my units back or out, and again that is the conveying of the

14 order at the same time that Mrksic has given the order to Vojnovic.

15 Clearly an officer that is subordinated not only to Sljivancanin but also

16 subordinated to Karanfilov.

17 Panic and also the military expert, Vuga, stated that the order

18 for withdrawal: "Must have been authorised by Mrksic or somebody

19 empowered by him." And the Prosecution submit that almost certainly it

20 was by Sljivancanin who was his direct superior. I will not deal with

21 other points.

22 Alibi. The Defence are stating that alibi plays a part here. In

23 our submission, it doesn't, not when you look at the reality of the case,

24 because it is perfectly clear that if the evidence of Vojnovic is to be

25 believed and Vukasavljevic is to be believed that in actual fact you have

Page 16108

1 the notice given to Mrksic prior to his return to Belgrade, if he went to

2 Belgrade. And there are very significant doubts in our submission about

3 whether that is a genuine alibi.

4 You have also other elements of notice being given to Mrksic. You

5 have evidence from, as I say, Vojnovic; you have got Susic, a Defence

6 witness who said that he told Mrksic about what was occurring; you have

7 Panic, a Defence witness, who said that he told Mrksic what was happening;

8 you have got Tomic via Vujic saying that in actual fact Tomic had told

9 Mrksic what had occurred on two separate occasions and Mrksic had put his

10 hand up to his face; and I would equally submit, the Court are entitled to

11 draw an inference on that because clearly there was a statement and there

12 is no suggestion by the Defence that in actual fact that is inconsistent

13 with what was said in the statement. The Courts are not attracted to that

14 argument; that is entirely a matter for them. But, in our submission,

15 there is evidence in relation to Tomic speaking to Mrksic.

16 Set that aside, you have also Vojnovic, you have Vukasavljevic,

17 and you have Vukasinovic. I see Judge Thelin frowning somewhat. I will

18 repeat the point and it is quite simply this: That Mrksic was told by

19 Susic that he was told by Vukasinovic, Vojnovic, and Vukasavljevic in

20 relation to what was occurring. In relation to the alibi, Mrksic himself

21 accepts that he knew in his Defence brief that Panic had informed him

22 about the trouble. We submit that the alibi evidence is not credible,

23 and, additionally, there is an entry on the 21st of November at 1815 hours

24 that the commander of OG South and a group of officers went to reception

25 by the federal secretary in Belgrade. That's in tab 12, Exhibit 401 and

Page 16109

1 that corresponds, I believe, with Trifunovic who says that Mrksic was

2 present at Negoslavci at the time.

3 We submit that Mr. Mrksic was a participant and was actively

4 involved in the joint criminal enterprise to persecute these individuals

5 and that there is significant evidence which repeats itself that

6 demonstrate that the intention was to kill them.

7 I have other topics that I would wish to deal with, but those

8 would be our submissions in relation to Sljivancanin, Mrksic.

9 May I crave the Court's indulgence on one matter, it is this. My

10 learned friend will be submitting in relation to Radic. If there is any

11 time over, there is a matter that I would like to deal with in relation to

12 001 and identifications of that topic, but I do not ask to go past 7.00.

13 JUDGE VAN DEN WYNGAERT: Thank you, Mr. Moore.

14 Mr. Moore, may I ask you a question because you saw us frowning

15 and it's better if I ask it immediately. The Tomic that you mentioned, is

16 that the deceased Mr. Tomic?

17 MR. MOORE: It is deceased Tomic.


19 MR. MOORE: Vujic gave evidence of what Tomic had told him and

20 that was the --

21 JUDGE VAN DEN WYNGAERT: But we didn't accept the evidence of

22 Mr. Tomic. The --

23 MR. MOORE: The Court did not accept the evidence of Tomic's

24 statement, but there is nothing in my submission that would necessarily

25 exclude the evidence by way of hearsay as I call it by my definition.

Page 16110

1 JUDGE VAN DEN WYNGAERT: Okay. Thank you very much.

2 MR. LUNNY: Thank you, and good afternoon, Your Honours.

3 Your Honours, I will endeavour to cut short the submissions in

4 respect of Miroslav Radic; however, I would say, as a caveat to that, that

5 if there's anything that I omit from my submission or if there's anything

6 that I summarise with a view to finishing within the Prosecution's

7 time-limit, I would certainly refer Your Honours back to the final brief

8 of the Prosecution as a comprehensive document with regard to the

9 Prosecution's position with respect to the guilt of Miroslav Radic.

10 Your Honours, the Prosecution is seeking a conviction of Captain

11 Radic under Article 7(1) or 7(3) of the Statute, and the Prosecution

12 submits at the outset that there is indeed credible and reliable evidence

13 from a number of independent and mutually corroborating sources that allow

14 for this conviction. And there is sufficient evidence covering all eight

15 counts of the indictment.

16 Your Honours will have noted that the closing briefs of the

17 Prosecution and Defence, in relation to Captain Radic, in many respects

18 mirrored each other, dealing with the same points, the same witnesses, and

19 the same evidence. I did not propose obviously, now with the clock

20 ticking, to deal with every area; I now deal with a limited number of

21 points. However, there are two particular points I wish to start with of

22 crucial importance. And one is the facts giving rise to Radic's guilt

23 under 7(1), his act of participation in the joint criminal enterprise, and

24 his identification as participating in that joint criminal enterprise.

25 Your Honours now know that Radic attended Vukovar Hospital in the

Page 16111

1 afternoon of 18th of November, 1991, and whilst the other thought the

2 wounded men as dead men, something that we now know was to transpire,

3 indicating his knowledge of the joint criminal enterprise and indicating

4 his guilt in that regard. He further participated in the joint criminal

5 enterprise later on the 18th and into the 19th of November by

6 participating with Bogdan Kuzmic in the selection process of detainees

7 where detainees were threatened and abused. And my learned friend

8 Mr. Moore has elaborated on that point already.

9 And we know from Dr. Njavro that the objective of that visit was

10 to identify some of the wounded and civilians who would later on the 20th

11 be taken from the hospital and to eventually end up at Ovcara and that

12 Your Honours can be found at page 1525 of the transcript. Radic's

13 participation in the joint criminal enterprise did not end there. He

14 returned on the morning of the 20th, and that morning helped Major

15 Sljivancanin in the selection process as detainees were being loaded on to

16 buses.

17 He further participated in that selection process later that

18 morning at the barracks where he entered one of the buses, read names from

19 a list, and those individuals were then returned back to the hospital.

20 Radic then further participated in this joint criminal enterprise in the

21 afternoon of 20th of November by sending three men to Ovcara to check the

22 information the TO were trying to take the prisoners away, and thereafter

23 reported back to him with regard to that.

24 With regard to those actions, Your Honours, giving rise to

25 liability under Article 7(1), I would submit that the identifications of

Page 16112

1 Radic as participating are provided by witnesses who gave their evidence

2 in a credible and reliable manner and their testimony as such as to allow

3 Your Honours to be satisfied beyond a reasonable doubt that it was indeed

4 Radic that participated in those actions. In that regard, Your Honours, I

5 would adopt everything that my learned friend Mr. Moore has already said

6 with regard to importance of identification and the standards to be

7 applied.

8 Dealing firstly with witness P16, who identified Radic at the

9 hospital on the 18th of November and the reference to dead men. This,

10 Your Honours, was not simply identification but rather recognition, P016

11 having obtained it -- the Guards Motorised Brigade barracks on two or

12 three previous occasions in the course of his professional duties. And

13 when he attended Vukovar Hospital on the 18th of November, he was

14 recognising Captain Radic, not simply identifying him. This

15 identification -- rather, this recognition, Your Honours, was corroborated

16 by independent testimony of Dr. Njavro with regard to Radic's attendance

17 on the 18th of November, and in that regard, I would refer to the previous

18 submissions of my learned friend Mr. Moore in respect of the Defence

19 submission on Karan and move forward from there.

20 The Prosecution accepts, Your Honours, that the statement -- the

21 prior statements of the accused are obviously not exhibits in this trial

22 and are not evidence against the accused; however, they were used to test

23 the credibility and the reliability of the accused and, in that regard,

24 Captain Radic was questioned on his two previous testimony. But he

25 confirmed in those statements that he was at the hospital on the 18th of

Page 16113

1 November, 1991, and I would ask Your Honours not to accept the position

2 put forward by the Defence in the final briefs -- final brief, rather,

3 with regard to his explanation given in testimony that he was simply not

4 prepared in the first statement and made a mistake about the 18th of

5 November and that on the second occasion, rather than have an

6 inconsistency, he simply repeated the error.

7 And I should ask Your Honours to bear that in mind when assessing

8 the credibility of Miroslav Radic's denials about attending the hospital

9 on the 18th of November.

10 If I may now move to the identification by witness P030, who

11 identified Captain Radic as participating in the selection process on the

12 morning of 20th of November and assisting Major Sljivancanin in that

13 operation. The Prosecution submits, Your Honours, that that was an

14 accurate identification which can be relied upon confidently by the Trial

15 Chamber. In support of that, Your Honours, it must be remembered that

16 Radic was referred to by name at least four or five times by Sljivancanin

17 as he ordered Radic to search the detainees that morning. This was being

18 between when witness P030 was only 2 to 3 metres away. It was outside in

19 the compound that morning,. It was daylight. Witness P030 told us that

20 Sljivancanin issued these orders and gave a speech for 15 minutes, thus

21 allowing P030 ample time with regard to his identification.

22 And finally with regard to Captain Radic's evidence, he testified

23 that as far as he was aware, there was no one else in the Guards Motorised

24 Brigade by the name of Radic and there was no one else within Vukovar by

25 the name of Radic, to the best of his knowledge. And accordingly, Your

Page 16114

1 Honours should be satisfied beyond a reasonable doubt that P30 was indeed

2 accurate when describing Captain Radic assisting Sljivancanin in the

3 selection process as part of the joint criminal enterprise.

4 P30 then sees Captain Radic a short time later at the barracks

5 being involved in the selection of detainees off the bus that P30 was on

6 just a short time later and the Prosecution submits that the second

7 identification, now recognition, is equally accurate given the strength of

8 his earlier identification. The defence of Miroslav Radic has suggested

9 that it was only Vukasinovic that attended the buses and took people off

10 the buses. However, Your Honours will recall Vukasinovic's evidence that

11 when he attended, there were three buses there. As we now know, there

12 were five buses and the five buses were then joined by a sixth bus and it

13 was then the reselection process took place. And therefore the

14 testimonies of P30 and Vukasinovic are not mutually exclusive and on that

15 basis it can be inferred that Radic and Vukasinovic, perhaps both

16 participated in that reselection process.

17 The Radic Defence claim that Radic was only at the hospital for a

18 short period of time the morning of the 20th, that he did not enter the

19 building, and did not take any part in the selection process. However,

20 when Radic testified to that set of circumstances, he was asked

21 specifically which officers from the Guards Motorised Brigade or the JNA

22 were present, within the hospital, at that time. And at page 12658 Radic

23 testified that he could only recall Tesic and Pavkovic. There was no

24 mention of Sljivancanin there, of him meeting Sljivancanin, or Radic

25 having any dealings with Sljivancanin. However, Your Honours, the fact

Page 16115

1 that Radic was not only at the hospital on the morning of the 20th but had

2 dealings with Sljivancanin, as corroborated by witness P018, somebody who

3 knew Captain Radic, who recognised him, and indeed attended the hospital

4 with him that morning.

5 And it's important to note, Your Honours, that P18 places Radic

6 not only at the compound but inside the hospital meeting with Sljivancanin

7 and meeting with members of the TO who were inside trying to identify

8 individuals labelled as Ustashas by them. And that, Your Honours, can be

9 found at page 7410 of the transcript.

10 To conclude, Your Honours, on that part of the submission, it is

11 submitted that it is not believable, given the extent and manner of

12 corroborating testimony, that confirms Radic's involvement in the joint

13 criminal enterprise, that Radic knew nothing of this joint criminal

14 enterprise and took no part in it. It is submitted that the Defence

15 position that every witness is wrong or lying or the subject of media

16 influence cannot be correct, cannot be true, given the number of positive

17 identifications and the strength of those identifications.

18 If I can move now, Your Honours, to the intention of Captain

19 Radic, the intention to participate in the joint criminal enterprise as

20 inferred from his actions and knowledge and words. The first evidence the

21 Prosecution would seek to rely upon, Your Honours, is one I already

22 mentioned being the declaration to witness P16 at the hospital that men --

23 the wounded men on the 18th were dead men was the first indication -- a

24 strong indication of a joint criminal enterprise and the intention of

25 Radic at that time.

Page 16116

1 This is only one of a number of pieces of evidence, and I would

2 refer in general, Your Honours, to the final brief of the Prosecution at

3 part 1, section L, dealing generally with the prior knowledge of the

4 accused and the foreseeability of the crimes and also at part 2, section B

5 of the final brief, which deals specifically with the joint criminal

6 enterprise at paragraphs 37 -- 73 -- 3. Your Honours, Captain Radic has

7 denied any knowledge of plan. He submitted -- rather, the Defence --

8 paragraph 414 of the Defence brief have submitted that as Captain Radic

9 held the lowest rank within the JNA command structure he was not in

10 receipt of the same information. Your Honours should reject this notion

11 from the outset as simply not true.

12 As a JNA officer, Captain Radic had the same duties of any other

13 officer, to be aware of what was happening in his zone of responsibility,

14 and Your Honours will find that at tab 4 in the binders, Exhibit 394, the

15 JNA textbook on command and control at page 43 in the English and page 33

16 in the B/C/S. For the sake of brevity, Your Honours, I would not propose

17 to quote verbatim from any of the exhibits, given the lateness of the

18 hour.

19 Your Honours, this -- this duty held by Captain Radic to be aware

20 of what was happening within his zone of responsibility applied to all

21 levels of command, and this is seen within Defence Exhibit 803 at

22 paragraph 23, the Rules for Infantry, Companies, and Platoons, that, Your

23 Honours, can be found at tab 2 in the binder. With regard specifically to

24 the Guards Motorised Brigade, as expert witness Pringle testified at page

25 11037: "The GMTBR had a well-tried and exercised system of passing

Page 16117

1 information up and down the chain of command."

2 And again with the specifics as to the situation within Vukovar,

3 the Trial Chamber is aware from evidence that Radic did keep himself

4 informed of the situation within his unit. He frequently visited the

5 front line and participated in operations.

6 As Witness P18 testified at page 7395, "But it was through the

7 local Chetniks that he was permanently -- that he was permanently in touch

8 with everyone because they kept informing him of everything."

9 The same people, Your Honours, described as Chetniks by P18 met

10 with Captain Radic within Nova Ulica 81 being the place that Captain Radic

11 set up his -- Prosecution refers to headquarters and my learned friend

12 Mr. Borovic refers to observation post at paragraph 73 to 74 of the final

13 brief of the Prosecution. And I would not propose to go back over that

14 information. Again, just for the sake of completeness of time -- within

15 the time-limit.

16 Moving on, Your Honours, with these factors in mind, with the

17 duties and the evidence as to what the situation was within Vukovar in

18 November 1991, I submit that Radic was fully -- Radic was aware of what

19 was happening within his zone at the time. And with this knowledge,

20 Captain Radic knew that the TO were widely known for their criminal and

21 violent behaviour. He knew that the Leva Supoderica were sponsored by

22 Seselj's Serbian Radical Party, and he knew that that unit of men were

23 particularly violent. Radic knew that Seselj had visited Nova Ulica 81 on

24 November 13th, and Radic was present for the statement referred to by my

25 learned friend: "Not a single Ustasha must leave Vukovar alive."

Page 16118

1 The Defence have suggested, Your Honours, in their final brief,

2 that witness P002 did not testify to Captain Radic being present at that

3 meeting. I would ask Your Honours to reject that submission of the

4 Defence and direct you specifically to page 10382 of the transcript where

5 witness P002 stated that Radic was already in the house that day before

6 the meeting took place, and he further goes on to describe how the

7 officers that he named met with Seselj in the meeting room, the large room

8 within Nova Ulica 81. And it's clear, Your Honours, when you look at that

9 passage as a whole, that P002 indeed places Captain Radic within Nova

10 Ulica 81 on the 13th of November and he places him at that meeting when

11 that statement was being said. The denial of Radic should be rejected

12 with regard to that point and, again, Your Honours, there is of course the

13 corroborating evidence of P22 as to Captain Radic's attendance at Nova

14 Ulica 81 on the 13th of November, when this important statement was made,

15 another statement indicating an intention to kill, intention to murder, a

16 joint criminal enterprise that Captain Radic himself was aware of and

17 willingly participated in for the actions already described.

18 Over and above those matters, Your Honours, Captain Radic was also

19 aware that TO beat and killed Croatian prisoners of war within Nova Ulica

20 at a house across from Nova Ulica 81, and he was further aware of a

21 particular incident described by P22 where one Croatian prisoner of war

22 was beaten by TO in front of Captain Radic. Radic himself confirmed the

23 lawless reputation of Vukovar TO in his interview with journalist

24 Kacarevic which Your Honours will find at tab 20 in the binder as Exhibit

25 353.

Page 16119

1 The Defence position with regard to that interview, in which

2 Captain Radic refers to the volunteers and those he commanded as

3 adventurers who had come to experience the turmoils of war, looters, and

4 robbers. Your Honours, the Defence position on this interview is

5 contained in paragraphs 444 to 447 of the Defence brief. The Defence take

6 the view that Captain Radic was not prepared for interview and that the

7 interview was not recorded word for word and was later subject to

8 exaggeration for media effect.

9 I would ask Your Honours again to check that submission from the

10 Defence. That matter was never put to witness Kacarevic during his own

11 testimony. Your Honours will recall that the Prosecution and my learned

12 friend and former colleague Mr. Weiner objected to Captain Radic speaking

13 on such matters at page 1265 [sic] -- sorry 685 [sic] of the transcript.

14 And with the matter never put to the witness, I would submit that the

15 Defence's submission is weakened because of that. Witness Kacarevic was

16 never given the opportunity to comment on whether or not he exaggerated or

17 did not record the interview verbatim. And I would ask Your Honours to

18 bear that in mind when weighing up the evidence discussed.

19 Again, Your Honours, with regard to the issue of intent and

20 knowledge, there is the participation I've already described of Radic

21 within the joint criminal enterprise, attending Vukovar Hospital on the

22 18th, 19th, and 20th of November at a time when witnesses -- sorry, at a

23 time when patients and other persons within the hospital were threatened

24 and mistreated. And again, also the same happening at the barracks where

25 detainees were beaten when they were transferred from one bus to the other

Page 16120

1 at a time when Captain Radic was present.

2 And with all this information, Your Honours, with regard to the

3 reputation and behaviour of the TO and with regard to the situation in

4 Vukovar and the feelings towards Croatian prisoners of war and detainees

5 and those within the hospital specifically, the situation was obvious, the

6 threats were obvious, and indeed the outcome was planned, as per the

7 Prosecution's submission in the final brief.

8 Such was the obvious nature of the dangers of crimes and the

9 particular murder. Even the press were aware of the dangerous situation

10 and took steps to try and cover as much of Vukovar as they could in their

11 capacity as the media to try and prevent any such crimes from taking

12 place. And I simply refer Your Honours to the testimony of Van Lynden in

13 that regard at page 3118 to 3119 of the transcript.

14 Your Honours, to summarise this part of the submission, it's not

15 credible for the Defence of Radic to claim that he was a lowly captain who

16 knew nothing of what was going on around him. It's not credible that

17 Captain Radic did not know of the problems of the TO that formed part of

18 the joint criminal enterprise with him and others. It's not credible that

19 he was not aware of the JCE himself and the role that he himself played

20 within that joint criminal enterprise. And in contrast, Your Honours will

21 be satisfied beyond reasonable doubt that Radic was aware of the situation

22 around him. He was aware of the reputation of the TO, he was aware of the

23 joint criminal enterprise and the role that he played in it.

24 If I could move on Your Honours to another aspect of the joint

25 criminal enterprise as provided for in paragraph 10(C) of the indictment,

Page 16121

1 and that is with respect to Captain Radic concealing or hiding the crimes.

2 It's submitted in that regard, Your Honours, that on account of

3 Captain Radic knowing what was going on at the time and thereafter being

4 told about the killings and the immediate aftermath of the killings, that

5 by his omission to report those crimes, formed part of the concealment, as

6 charged in paragraph 10(C) of the indictment. Obviously, Your Honours,

7 there is some common ground in this aspect with 7(3) liability and the

8 failure to punish, and I will address that later, Your Honours, if time

9 permits.

10 As indicated earlier, with regard to Radic's knowledge, he was

11 aware of what was going on on the 20th. He participated at the hospital

12 and barracks and sent three of his own men to confirm that the situation

13 at Ovcara was proceeding as he himself obviously knew.

14 With regard to Radic's actual knowledge of the killings, this

15 comes from two sources, Your Honours. Firstly, the specific reporting to

16 him by a number of individuals; and secondly, with regard to the general

17 widespread rumours circulating in Vukovar in the immediate aftermath of

18 the murders is something my learned friend Mr. Moore has already dealt

19 with in his submission. The Defence position on this knowledge, Your

20 Honours, is two-fold. He submits in his evidence and through the Defence

21 brief that he was not present at Nova Ulica 81 in the evening of the 20th

22 of November when he's allegedly been told about the killings by witnesses

23 P18 and P22, and Radic further denies that regardless of everyone else

24 hearing about these rumours he managed to avoid them and only found out

25 about the killings in the middle of 1992, some seven months later.

Page 16122

1 Your Honours, the Prosecution submits that the alibi with respect

2 to either of the 20th and into the morning of the 21st, this all-night

3 dinner alibi, ought to be rejected at the very outset and it ought to be

4 rejected, Your Honours, for being a lie. Firstly, Your Honours will

5 recall that the dinner alibi was never properly put to the Prosecution

6 witnesses during the course of the trial. And I submit it, Your Honours,

7 that this alibi, with regard to the dinner, was fabricated at a later

8 stage. The Defence witnesses who came to testify about this alleged

9 dinner had no written record, yet still remember details as to the timing,

10 the location, who attended, when they left, and indeed where they sat.

11 The witnesses themselves who spoke about this alibi accepted that

12 they had discussed matters between themselves prior to testifying.

13 However, most importantly, most significantly in respect to this dinner

14 alibi being a false alibi can be seen from the same fatal error that was

15 made by both witnesses, those being Zirojevic and Vuckovic with regard to

16 meeting Tesic the day after the dinner. The Court knows from testimony

17 during the Defence of Mile Mrksic that Tesic did not return to Vukovar

18 from Belgrade until the morning of 22nd of November, 1991, having left

19 very early the day before. This was confirmed by Dusan Milosevic at page

20 12086 of his testimony. He was a pilot who flew Tesic back in the morning

21 of the 22nd and he refreshed his memory from his flight log.

22 Vuckovic was particularly adamant that he saw and spoke with Tesic

23 the day after the dinner. He recalls this particularly because of Tesic

24 being opposed to drinking, having a dislike for alcohol. And at page

25 13239, Vuckovic tells us that Major Tesic could see in his face that he

Page 16123

1 partied hard last night and he cannot stand alcohol. This, Your Honours,

2 shows that the alibi cannot be correct. If Tesic arrived -- did not

3 arrive back to Vukovar until the 22nd, then he could not have seen

4 Vuckovic on the 21st to see that he partied hard last night, being the

5 20th.

6 The Defence deal with this matter at paragraphs 527 to 528 of

7 their final brief and now claim that the date of Tesic's return is

8 irrelevant. The Prosecution submits that's not the case; the date of the

9 return of Tesic is crucial for showing the alibi to be a lie.

10 The Defence final brief at paragraph 527 also seems to shift the

11 position of the witnesses and seems to submit that Tesic arrived the day

12 after the review of the troops that was due to take place in the morning

13 of the 21st, and that clearly was not the case and was not the testimony

14 of Vuckovic at page 13280 when it is clear from the context of his

15 testimony that he met with Tesic on the evening of the 21st. We know,

16 Your Honours, that that could not have taken place because we know Tesic

17 was in Belgrade on the evening of the 21st having attended a reception

18 that day.

19 I submit, Your Honours, in summary with regard to this aspect,

20 that if Captain Radic and two of his key Defence witnesses are prepared to

21 lie on such an important and significant point as to where he was on the

22 evening of the 20th and are prepared to lie with regard to being told

23 about the murders that night, they should not be believed in any aspect,

24 whether it be participation in the joint criminal enterprise or

25 subordination of the TO. Time is pressing on, Your Honours, and I would

Page 16124

1 propose to summarise the rest of the submission in the next five minutes.

2 So far, Your Honours, the Prosecution in respect of Miroslav Radic

3 has attempted to summarise the position with regard to his involvement in

4 a joint criminal enterprise under Article 7(1) and it is submitted that

5 the fall-back position, if Your Honours are not satisfied about his

6 participation, is that at the very least he aided and abetted others to

7 commit the crimes of murder and so on through the indictment with regard

8 to mistreatment of the patients within the hospital, at the barracks, and

9 thereafter at Ovcara.

10 Very briefly with regard to liability under Article 7(3), the

11 Prosecution's submission with regard to subordination is thoroughly set

12 out within the final brief. With regard to Radic's liability for,

13 firstly, his own three soldiers who were present at Ovcara on the 20th of

14 November, two of whom he sent there, P22 and Vidacek, one of whom was

15 already there, Lieutenant Hadzic, his own deputy who filled in for Radic

16 when Radic wasn't present. And thereafter Radic is also guilty under

17 Article 7(3) for the crimes committed by Vukovar TO, the Leva Supoderica,

18 Petrova Gora, who were subordinated to him.

19 Your Honours will be fully aware of the Prosecution's submissions

20 in that regard from the final brief with regard to the eye-witness

21 accounts of Captain Radic having effective de jure -- sorry, de jure and

22 effective de facto control of the soldiers in question of Petrova Gora and

23 the Leva Supoderica. Over and above the eye-witness accounts of this de

24 jure and de facto control is the military theory and practice. The

25 evidence adduced by the Prosecution to confirm that the JNA operated a

Page 16125

1 system of a single command and control, that -- this is provided for

2 within the SFRY law on all people's defence, Exhibit 392 at paragraph 112,

3 that subordination, Your Honours, should be at the lowest possible level

4 as was confirmed by witness Theunens at page 10818 of his testimony. That

5 single structure of command and control was operated on the neighbouring

6 axis of the Zirojevic, as confirmed by him in his own testimony. Even

7 paragraph 122 of the Vuga report of Major Sljivancanin's expert witness

8 confirms that Radic commanded all forces along his units, axis of attack,

9 and in that regard I would direct Your Honours to paragraph 122 of Exhibit

10 798 at tab 21.

11 Furthermore, with regard to the issue of singleness of command, I

12 would simply remind Your Honours of the testimony of Pringle with regard

13 to the need for strict command and control within an urban warfare

14 setting, that being a particularly difficult area to provide for and

15 Zirojevic himself confirmed that an urban warfare unit of command is

16 difficult to avoid accidents as is stated at page 13167.

17 Moreover, Your Honours, as -- sorry, in contrast to the position

18 put forward by the Defence, Tesic, not Mrksic, were in a position to have

19 direct control, direct de facto effective control of the men in the front

20 line to control their behaviour and issue commands. And accordingly,

21 subordination at the lowest level was necessary in Vukovar to allow the

22 JNA, to allow the GMTBR to operate effectively. And through that, Mrksic

23 from Tesic to Radic and then the Vukovar TO, there was an operation of a

24 single chain of command which gives rise to liability under 7(3) for

25 Mrksic and Radic in that regard.

Page 16126

1 With regard to de facto control, effective control for Radic, I

2 would refer Your Honours to two quotes very briefly P22 at 4984, who

3 testified when talking about the Leva Supoderica, first of

4 all: "Everybody from that unit respected Captain Radic and listened to

5 him, followed his commands," and he repeated that with regard to the

6 Petrova Gora.

7 Thereafter, P24, page 4172 stated: "Through Kameni, the JNA

8 commanded the volunteer units during the war. During the fighting, the

9 role of Kameni as a commander was lost; he was totally irrelevant.

10 Finally, he was a plain soldier, like myself. We all listened to the

11 command of Captain Radic."

12 Your Honours will recall the Defence position through testimony

13 and now from the final brief with regard to there being no subordination

14 between Radic and the TO, and rather, there being a relationship of

15 cooperation or of coordination. I would ask Your Honours to reject that

16 at the outset as being untrue, as being inaccurate, as being not the way

17 the JNA conducted operations. It was indirect -- that proposition is in

18 direct contradiction to the JNA rules as we know were applied in Vukovar

19 at the time, and the Defence submission with regard to the Tesic oral

20 order on or around the 10th to the 12th of November is also not true,

21 because that again goes against JNA regulations as to the recording of

22 important orders dealing with such structure of command and control.

23 There is no record of that oral order ever having been given in either

24 Exhibit 401 or Exhibit 807, being the war diaries of the Guards Motorised

25 Brigade and the 1st Motorised Battalion.

Page 16127

1 And I would ask Your Honours to reject the Defence submissions as

2 being untruthful with regard to -- rather, Radic's position as being

3 untruthful with regard to separation from the Petrova Gora and Leva

4 Supoderica on or around the 10th of November.

5 With regard to 7(3), liability for Radic's failure to prevent, I

6 would simply direct Your Honours to paragraphs 487 to 492 of the brief in

7 respect to knowledge beforehand and with regard to reasonable -- sorry,

8 the necessary and reasonable steps that Captain Radic failed to take as

9 set out in detail at paragraphs 503 to 507 of the Prosecution brief.

10 And similarly, Your Honours, with regard to failure to publish his

11 subordinates, I direct Your Honours to paragraphs to 508 and 510 of the

12 final brief specifying details of the evidence relied upon by the

13 Prosecution with regard to the failure to punish any of his subordinates

14 after the crimes, after he became aware of the killings on the evening of

15 the 20th of November, 1991.

16 And I would add to that part, Your Honours, the submission with

17 regard to his three regular soldiers, P22, Vidacek, and Hadzic, he was

18 told participated in the beatings, with P22 killing three individuals.

19 Captain Radic's 7(3) liability for failing to punish those three

20 individuals is not in any way affected by the Defence position with regard

21 to any separation from the TO on or around the 10th to the 12th of

22 November, 1991.

23 It's now just past 7.00, Your Honours, and to wind up, I would

24 simply submit that Your Honours can be satisfied beyond a reasonable doubt

25 of the guilt of Miroslav Radic and accordingly convict him under Article

Page 16128

1 7(1) for his participation in a joint criminal enterprise or,

2 alternatively, aiding and abetting others to commit the crimes in the

3 indictment or, alternatively, again, Your Honours, under Article 7(3) for

4 the crimes of his subordinates which he knew or had reason to know would

5 take place and yet he took no steps to prevent those crimes from taking

6 place.

7 And secondly, after he heard about them, after he was told in the

8 night of the 20th and in the morning of the 21st by P022, he did nothing

9 within the period of the indictment to take any steps to punish the

10 perpetrators of those crimes. I would ask Your Honours to bear in mind

11 the false alibi of Radic with -- also ask Your Honours to bear in mind the

12 denials of knowledge with regard to the JCE, the reputation of the TO, the

13 Seselj visit. The Defence are suggesting to Your Honours that Captain

14 Radic knew nothing. He was blindfolded in Vukovar for the six -- eight

15 weeks he was there fighting and he seemed to miss all this information

16 which we have heard from so many other witnesses that they were aware of

17 the problems, of the crimes that were being committed, of the reputation

18 of the TO.

19 In contrast to that, Your Honours, I would ask the Trial Chamber

20 to accept the evidence put forward by the Prosecution witnesses as

21 credible and liable and Your Honours can indeed be satisfied of the guilt

22 of Captain Radic beyond a reasonable doubt. I propose to say nothing

23 further at this stage, unless there's anything else that I can be

24 assistance of.

25 JUDGE VAN DEN WYNGAERT: Thank you very much, Mr. Lunny.

Page 16129

1 MR. LUNNY: Thank you, Your Honour.

2 JUDGE VAN DEN WYNGAERT: I'm afraid, Mr. Moore, that we have run

3 out of time, so we have to adjourn for the day and we will resume tomorrow

4 at a quarter past 2.00.

5 Mr. Vasic.

6 MR. VASIC: [Interpretation] Your Honours, my apologies for taking

7 up several seconds more, but if this is the conclusion of the closing

8 argument of the OTP, I think they still owe us what they wrote in their

9 final brief, their sentencing submissions. I'm not sure if we'll hear

10 that tonight, but we might actually prefer to hear that tonight as opposed

11 to tomorrow morning.

12 MR. MOORE: May I deal with it very quickly? It's not to do with

13 sentencing. What I was going to suggest was that perhaps it could be

14 dealt with at the conclusion of the arguments on Friday; that had been my

15 intention.

16 JUDGE VAN DEN WYNGAERT: That is what I was going to suggest as

17 well, at the end of the brief of Mr. Lukic. Is there -- would the Defence

18 have any problem with that or would you prefer, Mr. Moore, to address this

19 tomorrow?

20 MR. VASIC: [Interpretation] Your Honours, it might be technically

21 better to do it now because then the Defence would have an opportunity to

22 address the issue in our own closing arguments. That would shorten the

23 procedure, and we can find it easier to incorporate our own positions in

24 our final arguments. I think our clients -- I think the other teams would

25 also prefer to know tonight so that they might be better able to prepare

Page 16130

1 for their closing arguments, as long as that is no problem, of course.

2 JUDGE VAN DEN WYNGAERT: I'm afraid it is a problem in view of the

3 tapes and in view of the fact that the accused have to be brought back to

4 the UNDU.

5 So I'm turning now to Mr. Moore to ask how much time would you

6 need for these submissions.

7 MR. MOORE: I would have thought not a long time. Perhaps the

8 best way of dealing with it, if the Court agrees, is that I can speak to

9 my learned friends now. I can speak to them tomorrow morning because we

10 don't start until quarter past 2.00. I, from my part, don't think the

11 sentencing elements will take any significant amount of time.

12 JUDGE VAN DEN WYNGAERT: Do you have an assessment because we

13 really have to plan our time.

14 MR. MOORE: Well, planning time, I would have said no more than 15

15 minutes for the Prosecution.

16 JUDGE VAN DEN WYNGAERT: Okay. Then we'll start with that

17 tomorrow at a quarter past 2.00 and we'll make sure that by 2.30 the

18 Defence can start. Is that in agreement?

19 MR. MOORE: Yes, certainly.

20 JUDGE VAN DEN WYNGAERT: Thank you. So we adjourn now for the

21 day.

22 --- Whereupon the hearing adjourned at 7.07 p.m.,

23 to be reconvened on Thursday, the 15th day of

24 March, 2007, at 2.15 p.m.