090121ED

Page 39

1 Counsel.

2 MR. VASIC: [Interpretation] Thank you, Your Honour.

3 Your Honours, the Defence of Mr. Mile Mrksic fully abides by all

4 its 11 grounds of appeal. However, within its oral presentation within

5 the time-limits provided, it will focus only on the most important parts

6 of the appeal.

7 First of all, one should state that the judgement that is being

8 looked at here through the appeals of all parties in the proceedings is

9 the result of the decision made by the Trial Chamber to deviate from the

10 principle of establishing facts beyond reasonable doubt and decide to

11 make conclusions that are based on a sentence referred to in

12 paragraph 321 of the judgement, and that is: Such an order only could

13 have come from Mile Mrksic.

14 In addition to all the statements to the effect of what the

15 authority of the security organs was, and Captain Karanfilov belonged to

16 them and he conveyed the order on withdrawal, and they had a separate

17 line of command, and the Trial Chamber deals with that in paragraph 285

18 in the judgement, the mentioned conclusion on the responsibility of

19 Mile Mrksic for issuing an order to have the military police of the 80th

20 Motorised Brigade withdraw from Ovcara Farm seems controversial. It

21 seems to be based on the principle: Who was it if it wasn't him? There

22 is no evidence that would lead any reasonable Trial Chamber to reach such

23 a decision.

24 The Trial Chamber, as they tried to establish a logical

25 connection between such a conclusion and the adduced evidence, they had

Page 40

1 to accept the statements of witnesses whom they, themselves, find not to

2 be telling the truth, and that is evident. These witnesses were

3 concealing their personal responsibility or the responsibility of their

4 friends and comrades-at-arms. I am referring here to the statements of

5 Witnesses Vojnovic, Vukosavljevic, Panic, Vukasinovic, Karanfilov, Vujic,

6 Susic, and Trifunovic.

7 The Trial Chamber, as they made such a decision, they had to

8 reject the logic of material evidence like Exhibits 371, 375, 419

9 [Realtime transcript read in error, "429"], 268 and 269 [Realtime

10 transcript read in error] respectively, as well as many others. They

11 concluded that witness statements were more reliable than documents that

12 were undeniably created at the time and at the place that is of relevance

13 here. Witness statements that the Trial Chamber refers to in this

14 context are precisely those that belong to the category that we discussed

15 a few moments ago.

16 In order for the conclusions on the guilt of Mile Mrksic to

17 subsist in this kind of a system of legal conclusions, the Trial Chamber

18 had to give up on the establishment of chronology and cause and

19 consequence, in terms of particular events.

20 In the judgement, in paragraph 321, the Trial Chamber, after the

21 proceedings were concluded, does not establish precisely who it was that

22 issued the order if it wasn't Mr. Mrksic. They don't know when the order

23 was issued, before or after the daily briefing, and at what time this

24 happened. They don't know for what reason the security was withdrawn.

25 This unrelenting game of questions cannot lead to the conclusion

Page 41

1 that it's only Mrksic himself who knows the answer. The only thing that

2 the Trial Chamber establishes precisely is that the withdrawal took place

3 before 9.00 p.m., although in the operations log of the 80th Motorised

4 Brigade, Exhibit 371, as for the 20th of November, 1991, it says that the

5 security detail withdrew at 2235 hours precisely. I just want to say

6 that it doesn't say that it says "2200 hours," "2230 hours," but, rather,

7 it says "2235 hours," so if someone were inventing things, would it be

8 that way? Would it be in such terms of time?

9 The Trial Chamber establishes that Mile Mrksic was commander of

10 Operations Group South and that all other units were subordinated to him.

11 However, that cannot be grounds -- or, rather, the only ground for

12 establishing that he issued the order on the withdrawal of the units of

13 the military police of the 80th Motorised Brigade from the hangar at the

14 Ovcara Farm because according to the principle which was applied in the

15 trial judgement, this order could have been issued by any officer from

16 the security line, the security chain all the way up to the top, or any

17 officer of the Command of the 80th Motorised Brigade.

18 Responsibility for the security of the area in which there is no

19 civilian authority, as was the case in Vukovar and the surrounding area

20 in November 1991, according to the decision of the Supreme Command and

21 the Command of the 1st military district, lay in the hands of the town

22 commands, which constituted the military authority in these regions and

23 that were established to protect the property and persons in these

24 territories as well as prisoners of war if they happened to be in these

25 areas. The responsibility of the commander of the town stems from the

Page 42

1 authority vested in him in the Rules of Service in Article 72 and 78,

2 speaking of the tasks of the commands of garrisons and commands of

3 barracks.

4 The Supreme Command was aware of the fact that it is only in this

5 way, by creating town commands at lower levels, can the safety and

6 security of property and persons be protected until civilian authority is

7 re-established. That is why Mile Mrksic, through his own order,

8 appointed the commander of the 80th Motorised Brigade to be the commander

9 of the area of Jakobovac, Ovcara, and Grabovo with all the duties

10 aforementioned resubordinating to him for these needs more than 1.000

11 soldiers and pieces of armoured equipment.

12 In addition to this, Exhibit 375 of the war diary of the 80th

13 Motorised Brigade shows that Lieutenant-Colonel Vojnovic was given the

14 task on the 19th of November, 1991, to prepare his unit for guarding

15 prisoners of war from the area of the hospital at Ovcara on the day of

16 the 20th of November, 1991. Bearing this in mind, the conclusion of the

17 Trial Chamber, as referred to in paragraph 316 of the judgement as some

18 kind of surprise of Commander Vojnovic and his unit, cannot be

19 established beyond reasonable doubt or would any reasonable trier of fact

20 and that this kind of order that was entered into the war diary could

21 have remained something unknown to the commander of the 80th Motorised

22 Brigade.

23 Finally, the Chief of Staff of the 80th Motorised Brigade,

24 Lieutenant-Colonel Danilovic testified to the fact that his unit had this

25 task and was preparing for it.

Page 43

1 As for assessing what is written in the war diary, the Trial

2 Chamber in this case and in some other cases establishes that the entries

3 that were made in -- or, rather, at the time when the events concerned

4 happened are not updated, and therefore, the Trial Chamber does not

5 accept them as accurate. However, the party in charge of the accuracy of

6 the documents, and that is the Chief of Staff, Lieutenant-Colonel

7 Danilovic, he fully confirmed the correctness and the fact that the

8 documents of the 80th Motorised Brigade were kept up to date.

9 Finally, the documents that we're discussing here, the war diary

10 and the operations diary, were kept by two different persons. Both of

11 them were intellectuals and pedantic in terms of their work. One was the

12 manager of a company. The other one was a JNA major. The correctness of

13 these entries and the fact that the security organs were in charge of

14 triage and transport and that the 80th Motorised Brigade was given the

15 task to guard the prisoners at Ovcara is attested to by the fact that at

16 the moment when the buses started arriving in Ovcara, first and foremost,

17 there was Commander Vojnovic there, and the commander of Ovcara, and the

18 unit of the military police of the 80th Motorised Brigade, and the Chief

19 of Staff of Operations Group South, and Major Vukasinovic, who led the

20 convoy, and Captain -- and the captain who was in charge of the group of

21 prisoners of war from Mitnica on the 18th of November, 1991, and a large

22 group of security officers from the security administration, and members

23 of the counter-intelligence group from Sid.

24 The security organs were taking JNA soldiers out of the bus,

25 those who were of Croat ethnicity, and they testified here. They were

Page 44

1 taken off the bus, and the commander of Operations Group South was not

2 questioned -- was not asked about this at all. There is a security

3 colonel with a car there and who was watching all of this, and also, the

4 men who were sent there by the chief of the security administration,

5 General Aleksandar Vasiljevic, were there too.

6 As for these facts, it is hard for any reasonable trier of fact

7 to conclude that Mrksic suddenly ordered a change of destination and that

8 he sent the prisoners of war to Ovcara rather than to Sremska Mitrovica.

9 That is referred to in paragraph 610 to 612 of the judgement. Mrksic did

10 not make such a decision because he was not in charge of dealing with

11 prisoners of war.

12 The Trial Chamber, in order to bring -- or to link Mile Mrksic

13 together with the fate of the prisoners of war, took the statement of

14 Witness Panic on his presence at the so-called government meeting. This

15 sequence of events and the statement by Witness Panic does not fit into

16 the time and events that took place on that day in Vukovar, so the Trial

17 Chamber also changes the timing of the events, although the material

18 events in Exhibits 268 and 269, representing the crucial material, it was

19 proved that at the time when the Trial Chamber found that the meeting

20 took place, Slavko Dokmanovic, who was present at the meeting, happened

21 to be with the delegation from Kladovo in Backa Palanka and later was on

22 his way to Vukovar. In the film which these exhibits are, 268 and 269,

23 you can see that this delegation arrived in the courtyard of Velepromet

24 sometime before 1400 hours.

25 Supporting these material facts or this material evidence, the

Page 45

1 Prosecution -- well, you can also include the Prosecution exhibits which

2 were admitted under Rule 92 bis, and these are the statements of

3 ministers in the so-called government which confirmed the authenticity of

4 the film, but the problem is not just this but the fact that the

5 conclusions of the Trial Chamber based on the testimony of Witness Panic,

6 about whom the Chamber itself found that for the most part in his

7 testimony he did not speak the truth, and this is something that the

8 Defence dealt with in its paragraphs 201 to 224 of its appeal.

9 I would just like to emphasise one fact here, and that has to do

10 with this issue of what Mrksic said to Panic in respect of this meeting

11 of the government at Velepromet. First of all, there are no witnesses

12 for the telephone conversation, and the Trial Chamber here decided to

13 place its trust in Panic. Although this statement does not correspond to

14 the statement by Witness Vujic, which -- or who did not confirm that

15 Panic conveyed at the government meeting some sort of welcoming speech or

16 Mrksic's agreement; however, in a small notebook, which is Exhibit 852,

17 presented to the Trial Chamber, there is a note from the meeting in

18 Velepromet, which took place allegedly on the 20th of November, 1991,

19 which very briefly, in two or three sentences, allegedly records what

20 happened. But the witness who actually took those notes, Panic, claims

21 that the conclusions were adopted but that he did not actually record

22 them in these two or three sentences, as if they were not important to

23 him. Either they were not adopted or the whole event did not take place

24 at all, and this is something that the Mrksic Defence asserts.

25 It is interesting that this part of Panic's testimony and the

Page 46

1 conclusion of the Trial Chamber can be viewed through the transcript from

2 page 14382 to 14384, where you can see clearly that Witness Panic, until

3 2001, takes the 21st of November, 1991, as the date that the meeting

4 actually took place, but the position of the Defence is if Exhibit 852,

5 the small notebook that I mentioned, were authentic and it was in the

6 possession -- and had it been in the possession of Mr. Panic, he would

7 not have been able to make such a crucial mistake because he could have

8 used it to remind himself had his notes actually been made on the 21st of

9 November, 1991. So the Defence, for the reasons stated above, believes

10 that actually these notes were written sometime later. That is why, when

11 we are considering this particular piece of evidence, we believe that the

12 conclusions of the Trial Chamber, which arise from these assertions by

13 Witness Panic, would not be taken by any reasonable trier of fact as

14 evidence beyond any doubt. However, the fact that the war prisoners were

15 not under the authority of Mile Mrksic can be seen from the order for the

16 evacuation of the hospital. This is Exhibit 419, where the categories of

17 persons that Mile Mrksic was authorised for are listed.

18 So it is completely illogical that the Trial Chamber concluded

19 that a part of an order for the same assignment was issued orally and a

20 part was issued in writing because this is something that does not happen

21 in practice. What is said in the order, which is Exhibit 419, is

22 actually the assignment being issued by Mile Mrksic, and that is the

23 evacuation of the wounded and sick persons from Vukovar Hospital and has

24 nothing to do or does not refer to any treatment of prisoners of war.

25 The security organs are in charge of taking care of prisoners of

Page 47

1 war, which can be seen from Exhibit 819, as well as from the fact that

2 people for this operation were being sent by

3 General Aleksandar Vasiljevic, who was at the time the chief of the

4 Security Administration, and that the triage and evacuation of these

5 persons headed by the group led by Witness Vujic is being conducted by

6 this group, and this includes, also, the security organ, the security

7 organs received from Belgrade, a list of members of the ZNG who were

8 hiding at the hospital, and they also received an order to see or find

9 out who these persons were and to detain them. What can Commander Mrksic

10 have had to do with that, pursuant to the conclusions of the Trial

11 Chamber? The organs of security communicated directly with

12 General Aleksandar Vasiljevic from the hospital, and the buses from the

13 hospital to the barracks were sent by Vujic and Sljivancanin, and nobody

14 informed Mrksic about this because there was no need for that because he

15 was not in charge of this category of persons.

16 Besides the order on the evacuation of the patients from the

17 hospital in the already-mentioned Exhibit 419, Mrksic again warned the

18 town commanders about their duty to protect the security of property and

19 persons in their areas of responsibility. So besides addressing all the

20 commands before to apply the provisions of international humanitarian law

21 and to establish town commands as commands that were in charge, Mrksic

22 again now warned about the duty to protect property and persons at all

23 places where military command was in power rather than civilian

24 authority, and this order went out on the 20th of November, 1991. Such

25 an order was also received by the commander of the 80th Motorised

Page 48

1 Brigade, and he had to adhere to this order because besides his own unit,

2 he also had 1.000 attached soldiers who happened to be in the

3 Grabovo-Ovcara-Jakobovac sector. He also had a tank unit in Jakobovac,

4 which was less than 1.000 metres away from Ovcara, and anti-aircraft guns

5 and one tank who were located not far from the yellow house, just 200

6 metres from the hangar at Ovcara. You can see this location and the

7 yellow house in photographs that are part of Exhibits 378 to 380.

8 Witness P-014 arrived at the Command in the evening at around

9 2200 hours to see Lieutenant-Colonel Vojnovic with the request that the

10 military police should not withdraw from the Ovcara Farm. (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 49

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 JUDGE MERON: Mr. Vasic, I will ask this to be redacted, and

14 whenever you need to refer to a matter which should not be referred to,

15 you can ask us to go into private session, a matter bearing on identity

16 of persons protected, but I hope that we will not have to do that.

17 You can continue now, Mr. Vasic.

18 MR. VASIC: [Interpretation] Thank you, Your Honour.

19 JUDGE MERON: Excuse me. Of course, our redaction will include

20 your own comments also.

21 MR. ROGERS: Of course.

22 JUDGE MERON: I think that we are now ready to proceed,

23 Mr. Vasic. Please do.

24 MR. VASIC: [Interpretation] Thank you, Your Honour.

25 I was speaking about the conclusion of the Trial Chamber from

Page 50

1 paragraph 625 that members of the TO can overrule members of the JNA. I

2 consider that no reasonable trier of fact could come to such a conclusion

3 when Lieutenant-Colonel Vojnovic himself claimed that there were no more

4 than 40 members of the TO, and he had a force of several thousand men in

5 his own unit and also armoured equipment in the immediate vicinity of the

6 hangar. He also, as the commander of the 80th Brigade, had prepared his

7 unit because as we have already said, he received an assignment on the

8 19th to prepare for guarding and securing prisoners of war. In the

9 situation in which Lieutenant-Colonel Vojnovic said he found himself, he

10 had to, as an experienced officer and commander, to refuse to hand over

11 prisoners to anyone other than to the authorised powers. He should have

12 guarded them or should have asked for reinforcements if he didn't have

13 enough men, or to ask for buses and to transfer them to a different

14 location. If he were to be ordered to hand them over to a TO unit, for

15 example, he first had to make sure that the prisoners of war would not be

16 in any danger, and he could have carried out the order under this

17 condition only if he had received a written order and after inquiring in

18 detail about the consequences of this order. Otherwise, he had to have

19 refused the order and to address the immediately superior command. In

20 any case, he had to use forces that he had at his disposal, and to throw

21 out members of the TO from the hangar, and to prevent their further

22 presence in his area of responsibility.

23 Since Mrksic did not order anything - and this is what he said

24 himself, Lieutenant-Colonel Vojnovic, I mean - he tried to interpret

25 Mrksic's words. The duty of the commander -- of the town commander was

Page 51

1 clear, and Vojnovic was evidently aware of it, but he acted differently.

2 Why he did this is something that the Trial Chamber did not establish.

3 They accepted the testimony of this witness as one of the key witnesses

4 to establish the guilt of Mile Mrksic.

5 The Trial Chamber did not establish either why the list that was

6 drafted of prisoners of war disappeared. These are the prisoners of war

7 who were at the hangar on the 20th of November, 1991, and which ended up

8 on the desk of the commander of the 80th Motorised Brigade,

9 Lieutenant-Colonel Vojnovic, in the evening of that day. It's quite

10 clear why this list was made; because this procedure was already applied

11 in the case of prisoners of war at Mitnica who were at Ovcara from the

12 18th to the 19th of November, 1991, who were also guarded by the military

13 police of the 80th Brigade.

14 It is odd that despite the presence of these many members of the

15 security services who were at Ovcara that day, as well as surprises from

16 the Supreme Command and the Command of the 1st Military District,

17 military and civilian investigators and forensic specialists who were

18 carrying out their work pursuant to orders of the military court from

19 Sid, how it happened that a large group of people disappeared, after

20 coming around all the locations in the centre of Vukovar, this group of

21 people disappeared, and this remained a secret for so many years.

22 According to the findings of the Trial Chamber, this secret was

23 created for reasons only known to himself by Colonel Mrksic, a commander

24 of one brigade or, if you prefer, the temporary military force called

25 "Operations Group South." If this is logical, acceptable, and if this is

Page 52

1 something that can be asserted beyond any reasonable doubt, is something

2 for you to see. Somebody whose unit was sent to Vukovar overnight under

3 such circumstances did not have the power or the authority to do what I

4 mentioned earlier. This could not have been Mrksic because had he done

5 that, on the following day he would have had to be arrested by the

6 security organs whose task it is to discover the perpetrators of war

7 crimes and other crimes. Therefore, Mrksic could not have given the

8 order for security to withdraw from the Ovcara Farm, especially not

9 through the security officer, Captain Karanfilov, and then make sure that

10 all the JNA structures keep quiet about it.

11 Why the Defence is convinced that Mile Mrksic did not issue the

12 order on the withdrawal of the military police and on all the errors of

13 the Trial Chamber in drawing conclusions, this is something that my

14 colleague will address.

15 Thank you.

16 MR. DOMAZET: [Interpretation] Your Honours, before I move on to

17 my part of the arguments, I wish to draw attention to an error in the

18 transcript.

19 On page 9, line 22, when referring to the exhibit my colleague

20 Mr. Vasic mentioned, the exhibit number is erroneously recorded as "429,"

21 whereas it should be "419," And Exhibits 268 and 269 are not recorded in

22 the transcript, but they were quoted by my colleague Mr. Vasic.

23 Who issued the order of the withdrawal of the military police of

24 the 80th Kragujevac Brigade and in what manner is one of the key facts in

25 this case. Had such an order really been issued by Mile Mrksic, as the

Page 53

1 Trial Chamber erroneously concluded, not only would there have to be a

2 written trace of this in the documents of Operations Group South and the

3 reports to the higher command, but the order would also have had to

4 include the manner of its implementation, that is, to whom and how the

5 prisoners were to be handed over, as was the case with the prisoners from

6 Mitnica only two days previously. As these were not ordinary prisoners

7 of war but, rather, persons suspected of possible participation in war

8 crimes and participants in a rebellion, as the military judiciary

9 applying the then-valid legal provisions viewed these persons who were in

10 conflict with the JNA, Mrksic did not have the right to decide on handing

11 over these prisoners to anyone, nor was he authorised to do so.

12 These prisoners as suspects, suspected of war crimes against the

13 JNA, were within the purview of the security organs. Special teams

14 consisting of high-ranking security officers were sent from the highest

15 command in Belgrade to investigate, question, and prosecute prisoners

16 suspected of perpetrating war crimes against the JNA.

17 In addition to this, there was a clear order on prohibiting any

18 exchange of all prisoners of war, which has not been challenged, and this

19 certainly applied to these prisoners all the more so as they were

20 suspected of perpetrating war crimes.

21 The Trial Chamber failed to consider the possibility that if

22 Captain Karanfilov really did issue such an order to Vezmarovic, such an

23 order could only have arrived from the high security organs down the

24 security chain of command or line of command, which had nothing to do

25 with the line of command within the brigade and Commander Mrksic or the

Page 54

1 officers of the brigade.

2 There is a completely separate issue, which is whether the 80th

3 Motorised Brigade, which was in charge of guarding and securing these

4 prisoners, was permitted on the basis of an oral order issued by a

5 security officer to abandon the security of the hangar and withdraw the

6 military police without any sort of hand-over of the prisoners. This is,

7 of course, included in this appeal because in the view of the Defence the

8 80th Motorised Brigade was not authorised nor could it have withdrawn its

9 military police from the hangar at Ovcara without a clear written order,

10 and they should have done this following the procedure of listing and

11 handing over the prisoners based on such an order. No reasonable trier

12 of fact would accept this conclusion which was drawn by the Trial

13 Chamber.

14 Had Mrksic issued such an order before the briefing, this would

15 certainly have been mentioned at the briefing, but no witness confirmed

16 this, that such a thing happened. On the contrary, at the briefing, in

17 addition to many other issues, the issue of security for the prisoners

18 was discussed in view of the fact that they might have been under threat

19 from the paramilitaries or civilians, but there was no mention of the

20 fact that anyone, including Mrksic, had already issued an order on

21 handing over the prisoners to anyone, including the TO, as the Court

22 erroneously concluded.

23 This same evidence excludes the possibility that Mrksic issued

24 such an order during the briefing because not only has no Prosecution or

25 Defence witness confirmed such a thing - I am referring to witnesses who

Page 55

1 were present at the briefing - but there is no mention of this in any

2 written document, including the report from the briefing, the regular

3 report from the briefing. Such an order issued by the commander would

4 certainly have been recorded, and it would have been remembered by the

5 participants in the briefing.

6 Witness Vojnovic does not confirm this, either. Rather, he

7 attempts by his own interpretation of words allegedly spoken by Mrksic

8 and Mrksic's alleged actions, he tries to represent that such an order

9 existed, but it's something that only he understood, allegedly

10 understood. He at no point directly and simply asked his commander, Did

11 you issue the order on the withdrawal of the 80th Motorised Brigade, and

12 is that how I can understand your reply? Could any reasonable trier of

13 fact accept the interpretation that an officer as experienced as Vojnovic

14 was would make the decision -- such an important decision, as important

15 as the decision on withdrawing his unit, and allegedly convey to his

16 security officer, Vukosavljevic, without having received such an order

17 directly from his commander, Mrksic, or asking him directly whether such

18 an order existed.

19 Mrksic's Defence wishes to point out that not only was Mrksic not

20 allowed without an order from a superior command to decide on the fate of

21 the prisoners and that he was not competent to do so, but that he had no

22 reason whatsoever to do such a thing and allegedly hand over the

23 prisoners to the local Territorial Defence because, as my colleague has

24 already pointed out, not only was there no such order from the alleged

25 government, but there was also no request issued by the so-called

Page 56

1 government either to the Command of Operations Group South or anyone

2 else, and all this is the subject of a separate part of our appeal.

3 Here, we wish to point out that the Trial Chamber failed to take

4 into account the testimony of a very relevant witness, Witness Jaksic,

5 who testified that he went to see Mrksic before this meeting in

6 Velepromet and that Mrksic categorically refused to discuss the

7 handing-over of the prisoners to anyone, including the Territorial

8 Defence or the so-called civilian authorities or the so-called

9 government, and it also failed to take into account his testimony as a

10 participant in that session to the effect that this issue was not

11 discussed at that session at all.

12 The Trial Chamber concluded or established that after the second

13 alleged meeting, Vojnovic and Mrksic were walking together, and Vojnovic

14 came back and issued the order to Vukosavljevic, his security officer, to

15 go to Ovcara and withdraw the military police of the 80th Motorised

16 Brigade. No reasonable trier of fact could have arrived at such a

17 conclusion. First of all, there was no such second meeting. It is

18 something that Witness Vojnovic and Vukosavljevic invented so that the

19 responsibility for the withdrawal of Ovcara would fall on Mrksic rather

20 than those who actually were responsible for this and who did this.

21 First of all, it should be kept in mind what Vojnovic testified

22 to in 1998 when not only was his memory much fresher and more objective,

23 because at that time no one had yet been accused, including Mrksic, and

24 this testimony before the military court in Novi Sad, when he testified

25 about the arrival of an officer from the 80th Brigade who was immediately

Page 57

1 subordinated to Vojnovic, and he said that he came to see him at 2200

2 hours and spoke about Vezmarovic and Karanfilov. This indicates that in

3 these proceedings, Vojnovic was not telling the truth when he stated that

4 all this had been organised before 2000 hours. The time is very

5 important here because the Defence believes that the time entered in the

6 diary, 2235, is the correct time of the withdrawal of the military police

7 and that the attempts of some witnesses whom the Trial Chamber relied on,

8 who tried to represent this time as being a few hours earlier, is not

9 correct. The Trial Chamber should have taken into account that Witness

10 Vojnovic, in the course of his testimony before this Court, confessed

11 that never before in the course of his testimonies did he mention that

12 Vukosavljevic had been with him at the briefing on the 20th in the

13 afternoon. His response to that was that he had forgotten that

14 Vukosavljevic had been with him, but because he trusted Vukosavljevic, he

15 testified to this fact before this Trial Chamber, although he did not

16 remember it. But he accepted the fact because that's what Vukosavljevic

17 claimed in his testimony, and they discussed this before their

18 testimonies.

19 So all this indicates that these two witnesses were in collusion

20 before the testimony and they wanted their testimonies to corroborate

21 each other when testifying before the Trial Chamber. This is also

22 supported by other facts which these two witnesses tried to include in

23 their testimony, and this will be discussed in another part of the

24 appeal.

25 In the meantime, in the Seselj case, the new testimony of

Page 58

1 Vojnovic completely --

2 MR. ROGERS: This will relate to the confidential motion and

3 should not be dealt with at this stage. It's a matter Your Honours have

4 already raised with counsel at the outset, and this should not be a

5 subject of submissions, as I understand it. Anything from another case

6 that has not been made part of a motion to admit within these proceedings

7 is simply not on the record in these proceedings, and that's the end of

8 that.

9 JUDGE MERON: Mr. Domazet, what do you say about this?

10 MR. DOMAZET: [Interpretation] Your Honours, what I am referring

11 to is the testimony of Witness Vojnovic before this Trial Chamber and not

12 any other testimony, including the one in connection with Rule 115, so

13 I'm now referring to the testimony before this Trial Chamber. I'm not

14 touching on any of his statements that he gave later on in connection

15 with 115.

16 So Vojnovic in this case testified that before going to the

17 briefing in Negoslavci, he sent Vukosavljevic to Ovcara to look at the

18 situation, as he said, and Vukosavljevic in these proceedings testified

19 that in Negoslavci, in front of the room where the briefing was held, he

20 waited for as long as an hour and a half, and this excludes one or the

21 other, especially bearing in mind Vojnovic's testimony before this

22 Chamber that he was late to the meeting, and it says:

23 "However, I was late to that meeting, and by the time I arrived,

24 the other officers were leaving already."

25 JUDGE MERON: Mr. Rogers, I see you have no further problems.

Page 59

1 MR. ROGERS: Your Honours, no. Despite the clear record in the

2 transcript of the reference to the Seselj case, it appears that

3 Mr. Domazet does not intend to refer to the Seselj case, and of course, I

4 have no objections to that.

5 JUDGE MERON: Okay. Mr. Domazet, you can proceed, and you know

6 what are the rules with which you have to abide.

7 MR. DOMAZET: [Interpretation] Thank you, Your Honour. I'm not

8 touching upon the testimony in the case mentioned.

9 If that's how it was, Vojnovic could not have sent Vukosavljevic

10 to Ovcara in such a brief space of time, nor could he have come back and

11 waited for an hour and a half, because during that time Vojnovic spent

12 some 15 or 20 minutes at the most in the briefing room because as he

13 himself said, it all lasted a very short time. Because of this, we

14 consider that this alleged encounter of all three is invented, Mrksic,

15 Vukosavljevic, and Vojnovic after the briefing, and the testimony of a

16 relevant witness, Gluscevic, completely excludes this possibility, and

17 not only his testimony, but other testimonies as well. Vojnovic, who did

18 not remember at all that Vukosavljevic had been in Negoslavci during the

19 briefing as he himself said before the Court, as he trusted

20 Vukosavljevic, he not only remembered this later on but also this meeting

21 of the three of them. Had this meeting really taken place, Vojnovic

22 would have remembered it well and testified about it before and not only

23 at this trial after he had heard Witness Vukosavljevic say that he had

24 been at Negoslavci with him on that occasion.

25 Vojnovic testified that at the briefing, he spoke about the

Page 60

1 threat to the prisoners, and admitted that he didn't even mention that a

2 security officer, that is, Vukasinovic, the security officer of the

3 Guards Brigade, was there. This is inexplicable. Also, when asked by

4 the Defence, he testified that while he was there, the prisoners were

5 separated by a rope and were not under any physical threat. This also

6 indicates that the testimony -- the present testimony before this Trial

7 Chamber was adjusted after him being in collusion with Vukosavljevic and

8 some others.

9 When asked by the Defence before this Trial Chamber, whether

10 before the investigating judge of the Special Court in Belgrade, Albric

11 [phoen], he told him that Mrksic had said that he had other obligations

12 and that he did not issue any orders regarding the situation at Ovcara.

13 He responded, I quote the words from the record in this trial:

14 [In English] "No, he didn't say that to me. He said that" -- "he

15 said that to Drago Vukosavljevic. To me, he said, 'Don't tell me

16 anything about it.' He didn't do anything else."

17 [Interpretation] Vojnovic then asserts that he didn't hear

18 something like this from Mrksic, and in some way he transfers this to

19 Vukosavljevic, and Vukosavljevic claims something completely the opposite

20 in his testimony. He says that allegedly Mrksic and Vojnovic went to one

21 side, spoke for a few minutes without his presence, and then Mrksic went

22 off in another direction, and Vukosavljevic approached Vojnovic and told

23 him to go to Ovcara and convey his order on the withdrawal of that unit.

24 For the record, my colleague says it's not entered in the record.

25 Before the judge of the special court, he said that Mrksic did not issue

Page 61

1 any order to him regarding the situation at Ovcara. No reasonable trier

2 of fact could have concluded on the basis of such testimonies that Mrksic

3 issued the order on the withdrawal of the military police of the JNA from

4 Ovcara.

5 If we take into account the testimony of Witness Trifunovic, a

6 witness relied on by the Trial Chamber, that not only did he not remember

7 that he saw Vojnovic at the briefing or immediately after, and this was

8 the witness who took the minutes, but Witness Trifunovic, and this is

9 especially important, remembers that Vojnovic did arrive, but much later

10 after the briefing, looking for Mrksic, who was then absent, although

11 according to Trifunovic's testimony, it follows that Vojnovic did not

12 find Mrksic there. Evidently, this is not about the alleged meeting at

13 the end of the briefing and this meeting never took place, but Witness

14 Vojnovic came much later that evening looking for Mrksic and evidently

15 failed to find him there, certainly because Mrksic had then already left

16 Belgrade. And it's interesting that Vojnovic didn't testify to that at

17 all or mention it in his testimony. Only -- well, why he didn't do so,

18 we can only assume that he wished to conceal something, and when he

19 failed to find Mrksic, he spoke to someone else.

20 With respect to Witness Trifunovic, one of the witnesses the

21 Trial Chamber relied on, although it did not believe him only when he

22 correctly stated, and he was the one who made the minutes, that the

23 briefings were held at 5.00 p.m. and not later, as the Trial Chamber

24 concluded, and that reports were sent to the higher command usually at

25 6.00 p.m.

Page 62

1 The Court believes this witness in respect of some other facts,

2 too, that he obviously misstated completely. The Defence actually

3 believes that he lied on purpose in order to remove responsibility from

4 some others and to pin it on Mrksic, who was already facing the Court,

5 and it's not only on the basis of his personal observations; rather, he

6 refers to transcript 8138 and the war diary. He says that Mrksic went to

7 Belgrade on the morning of the 21st. The Defence believes that this is

8 not an error in terms of the entry made; rather, this is an

9 ill-intentioned entry that is erroneous and that was made by this

10 witness. He knows full well who made and signed the order of the 21st at

11 6.00. This is transcript Reference 8138, and he testified that he did

12 not recognise Mrksic's signature.

13 It is not only that this is not Mrksic's signature and order

14 because this order was made and signed by Lieutenant-Colonel Panic;

15 rather, this is a forgery and an attempt to hide or conceal something

16 through this order. That is why the witness tries to prove, as it were,

17 that he claims, as the one and only witness to do so, that Mrksic, as a

18 matter of fact, was in Negoslavci around midnight. In this way, he is

19 certainly helping the person who was standing in for the absent commander

20 to enter this forged order at 6.00 in the morning, however, without

21 Mrksic's signature because quite simply he was not there, and then

22 intentionally he makes the wrong entry because Mrksic left for Belgrade

23 by helicopter.

24 Unfortunately, Witness Trifunovic, together with those who

25 participated in this, managed with this false testimony to deceive even

Page 63

1 the Trial Chamber and to channel the blame for the fate of the prisoners

2 at Ovcara to Mrksic rather than to have those who were the only ones who

3 could do this after Commander Mrksic went to Belgrade shoulder the blame,

4 and he went to Belgrade on the 20th of November, 1991.

5 In order to amplify this invented story of his before the Court,

6 he even invents a meeting at midnight that night, and he testifies,

7 transcript Reference 8168:

8 "I later heard that Colonel Mrksic returned just before

9 midnight."

10 It's not only that he's the only witness who says that and that

11 this is in total contravention of the testimony of many Defence

12 witnesses, but it is inexplicable where it is that Mrksic returned from,

13 and if Mrksic was in Negoslavci that night, why did he not personally

14 sign, the following morning at 6.00, the order that was entered in the

15 diary, and that is quite controversial anyway, as already stated, and if

16 he went to Belgrade only at 8.15, which was also misstated in the war

17 diary?

18 Perhaps the motive of the this witness can be seen or at least

19 gleaned - transcript Reference 8168 - when, in response to the

20 Prosecutor's question as to where Lieutenant-Colonel Panic was, he

21 testifies that on the 18th -- where Panic was on the 18th and 19th, but

22 in response to the direct question of the Prosecutor:

23 "And what about the 20th?"

24 [In English] "Even you didn't make note about it. Do you know

25 where he was on 20? Can you say or not?

Page 64

1 A. I can't, I don't know."

2 [Interpretation] It is impossible that he cannot and that he does

3 not know where he was, especially when Mrksic was not in Negoslavci.

4 Obviously, it is not a question of him not being able to or, rather --

5 simply, it is a question of him not wanting to know that Panic made the

6 order and signed it on that morning.

7 It is impossible that this witness does not know where

8 Lieutenant-Colonel Panic is, his immediate superior, especially not that

9 night when he witnessed Panic in the absence of Mrksic was commander of

10 the entire Operations Group South. These are the untruths made by --

11 stated by this witness that were regrettably accepted by the Trial

12 Chamber and that are in total contravention of the adduced evidence made

13 in detail with regard to Mrksic's depart to Belgrade, and no reasonable

14 trier of fact would not accept this. Obviously, this testimony by

15 Trifunovic had, as its objective, to deny the evidence that Mrksic on

16 that evening of the 20th after the briefing went to Belgrade with Colonel

17 Coric by car.

18 The Defence analysed the evidence in its appeal, especially the

19 testimony of Colonel Coric, the former commander of the Guards Brigade

20 who, on that evening and in agreement with Mrksic, waited for him to

21 complete the briefing and go to Belgrade; and then there was also the

22 testimony of Mrs. Mrksic, Mrksic's wife, who says that his sister arrived

23 from -- arrived in Belgrade that evening, and she arrived with a group of

24 refugees from Borovo Naselje, and she was supposed to organise her

25 arrival; and finally the testimony of driver Renicje [phoen], who went to

Page 65

1 pick up Mrksic's sister and brought her to Mrksic's apartment that same

2 evening, talked to him, and later on the following morning he came to

3 pick Mrksic up at his apartment, and he drove him to the Command of the

4 Guards Brigade in Belgrade, as previously agreed, and then he went to

5 meet the helicopter from Negoslavci on which Major Tesic arrived, and

6 then he drove both of them to a reception hosted by the State Secretary

7 of National Defence, which is why he actually came to Belgrade.

8 In contravention of this clear and unequivocal testimony, it is

9 only Witness Trifunovic who testifies and who incorrectly or

10 intentionally falsifies the entry in the war diary, tries to portray

11 things as if Mrksic went to Belgrade only on the following day.

12 In the sixth ground, the Defence analysed this false testimony of

13 Witness Trifunovic, who, truth to tell, does not testify to having seen

14 any of this personally, the departure by helicopter, et cetera, but he

15 testifies on the basis of what he saw in the war diary, and it's obvious

16 why.

17 Another lie that he stated was that he allegedly worked on some

18 map that night and that Colonel Pavkovic helped him in that. In these

19 proceedings, it was established that Colonel Pavkovic was in Sremska

20 Mitrovica that night and that he was engaged in a completely different

21 task, so this is yet another untruth stated by this witness, and in this

22 way he was trying somehow establish that Mrksic was in Negoslavci that

23 night. Why? We can understand why, I believe. On the other hand, it is

24 stated that a group of officers went by helicopter with Mr. Mrksic, but

25 it was only Tesic who went on that morning helicopter to Belgrade.

Page 66

1 Mrksic had done that the previous night.

2 The Trial Chamber establishes that Mrksic's intention was not to

3 have the JNA hand over the prisoners of war to any other Serbian army,

4 and that is paragraph 610. This is a correct conclusion on the part of

5 the Trial Chamber, and later on the Trial Chamber changed that when they

6 established that at one point, Mrksic changed this decision of his.

7 Mrksic never changed his decision, and he never ordered that the

8 prisoners be handed over to any Serb military unit. The Trial Chamber

9 comes to this conclusion because they take into account and recognise

10 part of Panic's testimony, Panic being his deputy, about this night

11 between the 20th and 21st, and his false testimony that this was

12 allegedly discussed at the meeting of the so-called government in

13 Velepromet, and that what was stated was that prisoners of war should be

14 handed over to the civilian organs.

15 The Trial Chamber established that Mrksic ordered that the POWs

16 be handed over to -- sent to the barracks. That is not true.

17 Sljivancanin himself says that he personally ordered that from the

18 hospital, the buses should go to the barracks of the JNA, and also what

19 should be borne in mind is that Mrksic had the order to carry out an

20 evacuation at the hospital and did not consist only of the evacuation of

21 the prisoners of war but primarily of the ill and wounded.

22 Major Sljivancanin, according to the security chain and the tasks

23 that he got from the Security Administration of the JNA, rather, his

24 superiors, on the basis of this chain, not only had the task that was

25 related to prisoners of war -- I do apologise, but I have to repeat this

Page 67

1 because this is important. I see that my -- my colleague says that this

2 is recorded differently in the transcript.

3 We claim that Mrksic had an order to have the evacuation at the

4 hospital carried out, that is to say, to have the sick and wounded

5 evacuated from the hospital, and all of those who are there, and that the

6 security organs were in charge of establishing who is not a sick or

7 wounded person, who was infiltrated, and who had simply changed their

8 clothing and were in the hospital and who were possible war crimes

9 suspects, and that was precisely done in the hospital, and this does not

10 pertain to authority or orders of Mile Mrksic.

11 Otherwise, Major Sljivancanin, as he testified himself, ordered

12 that the buses stop at the JNA barracks, and he did not ask Mrksic for

13 his approval, and he had no need to do that, and he did not inform him

14 about that. It is not only -- it is not only that he did not inform him

15 about that throughout that day, which was only logical because he was

16 engaged in work that was not carried out on the basis of orders of

17 Mrksic; rather, it was along the security chain, and these are -- and

18 this had to do with potential war crimes suspects and their selection at

19 the hospital. This is obvious from the testimony before the Court that

20 while Colonel Vujic and Major Sljivancanin were in the hospital, they had

21 this dilemma what to do. They did not call Colonel Mrksic; rather, they

22 called General Aleksandar Vasiljevic and General Tumanov, who were their

23 superiors along the security chain.

24 The conclusion is, on the basis of this kind of evidence, no

25 reasonable trier of fact could establish that Mile Mrksic had issued an

Page 68

1 order on the withdrawal of the military police of the 80th Motorised

2 Brigade from the hangar at Ovcara or that the withdrawal took place at

3 any other time but 2235 hours as was precisely recorded in the diary of

4 the 80th Motorised Brigade.

5 MR. VASIC: [Interpretation] Thank you, Your Honours, and I would

6 like to proceed from this point where my colleague stopped, with your

7 permission. We have ten minutes left.

8 JUDGE MERON: Yes, you have ten minutes, and I think it would be

9 useful if you would devote part of the time available to you summarise

10 this argument that has been made, but ten minutes altogether, please.

11 MR. VASIC: [Interpretation] Thank you, Your Honour.

12 I would just like to use two or three minutes to deal with aiding

13 and abetting and inhuman treatment that our client was found guilty of,

14 and this is based on what is stated in paragraph 308 through 316 of the

15 judgement, that Panic, Vojnovic, Vukasinovic, and Vukosavljevic informed

16 Mrksic about what happened that afternoon at Ovcara and that there was no

17 reaction to these reports.

18 First of all, as regards the content of what Panic conveyed to

19 Mrksic in his own words, one may conclude that he had said that the

20 situation was under control, but Vojnovic should be consulted in terms of

21 whether he could provide for the security of the prisoners of war. The

22 credibility of this witness has already been discussed, and I would just

23 like to point out here that this witness cannot be a reliable one in

24 relation to any statement, including this one.

25 However, after 1600 hours in the war diary of the 80th

Page 69

1 motorised -- sorry, the operations diary of the 80th Motorised Brigade,

2 there is an order on the reinforcement of the security of the

3 Ovcara Farm, so there was a reaction after all.

4 As for what Witness Vukasinovic said to Mrksic, that happened

5 after 1700 hours, according to what Vukasinovic said, because he first

6 got some rest and then he reported to Mrksic, which is to say that there

7 was nothing urgent going on, and since security had already been

8 reinforced, Mrksic said to him that he could go.

9 As for what Vojnovic conveyed about what had happened that

10 afternoon, Mr. Domazet referred to that in part, and also, you can partly

11 see that from the testimony of those who attended the briefing who do not

12 remember that Vojnovic referred to anything urgent, anything critical,

13 and he could not have made any such references because he left Ovcara

14 when there was full order there and control of the military police of his

15 unit.

16 After the briefing, we heard testimony that Mrksic called the

17 commanders of the APC Company and told him to be available if necessary

18 for securing the prisoners of war.

19 So this all shows all the things that Mrksic did before he went

20 to Belgrade on the evening of the 20th of November, 1991. Mrksic cannot

21 be responsible because had he ordered what the Trial Chamber found, he

22 would have ordered that down the chain of command, and that would have

23 been a normal thing. However, this order went down the security chain.

24 It is not logical that Mrksic issued this order, and he did not have any

25 authority for that kind of thing. Therefore, there is no omission in

Page 72

1 JUDGE MERON: Yes. Private session is, of course, finished. We

2 are going into public session, and I will repeat that, in fact, the

3 Defence for Mr. Mrksic has completed its task for this morning, and we

4 will now have a 15-minute pause.

5 The Court will now rise.

6 --- Recess taken at 10.47 a.m.

7 --- On resuming at 11.02 a.m.

8 JUDGE MERON: Please be seated.

9 So it's you, Mr. Rogers, now?

10 MR. ROGERS: Yes, Your Honour.

11 JUDGE MERON: So please start your hour and a half.

12 MR. ROGERS: Your Honours, I'm grateful.

13 Your Honours, I have very much in mind the comments that you made

14 at the outset of the hearing today relating to not wanting to hear again

15 the submissions that are set out within our brief, and I'm also very

16 mindful that this is not a rehearing, although Your Honours may be

17 forgiving for having -- listening to the submissions from opposing

18 counsel that this was, in fact, a re-hearing.

19 The primary thrust of my early submissions this morning is that

20 most if not all of that you have heard from counsel representing

21 Mr. Mrksic has already been advanced, has been heard, tried - literally -

22 tested, and regrettably for Mr. Mrksic, rejected, and the function of

23 this Tribunal and this Chamber, of course, is not to revisit that unless

24 good cause and good reason can be demonstrated.

25 Your Honours, we've responded at length to Mr. Mrksic's appeal in

Page 73

1 our response brief, to many if not all of the points that he has raised,

2 as he appears to really have just gone through them again, and I'm not

3 going to repeat those.

4 The order of our submissions will be this: First, I'll provide a

5 short overview. Then my co-counsel, Mr. Wood and Ms. Lewis, will address

6 some specific issues relating to Mrksic's appeal, which we had identified

7 to be those which were primarily advanced by counsel for Mr. Mrksic, that

8 is the withdrawal order, and to a lesser extent perhaps the security line

9 of command. Those will address Grounds 6, 7 and 8. Mr. Wood will deal

10 with those relating to Mr. Mrksic's role in the order to withdraw, and

11 Ms. Lewis will briefly address Grounds 1, 2, 3, and 8 relating to the

12 role of the 80th and local commands' security organs.

13 Your Honours, just, then, to turn to my overview, Your Honours,

14 the Trial Chamber reasonably and properly convicted Mile Mrksic of aiding

15 and abetting the murders of 194 protected prisoners of war, many of whom

16 were sick and wounded, when he ordered the withdrawal of the 80th

17 Motorised Brigade, the only protective force keeping the killers at bay.

18 In addition, they properly and reasonably convicted Mile Mrksic of aiding

19 and abetting the torture and cruel treatment of those prisoners. These

20 convictions were based on his failure to prevent the severe beatings and

21 appalling conditions of their detention during the afternoon and evening

22 of the 20th of November, 1991, until their eventual slaughter.

23 The Trial Chamber found, at judgement pages 627 and 628 --

24 paragraph 627 and 628 that his failures to act rendered both practical

25 assistance and encouragement to those at Ovcara seeking revenge --

Page 74

1 THE INTERPRETER: Thank you for slowing down when reading.

2 MR. ROGERS: Slow down. Both practical assistance and

3 encouragement to those at Ovcara seeking revenge on those unfortunate

4 individuals.

5 Your Honours, in order to understand Mile Mrksic's position of

6 authority, it is perhaps helpful to understand at the outset how

7 Operation Group South was organised. Your Honours, I've produced a small

8 Powerpoint -- I hope it won't be death by Powerpoint, but a short

9 Powerpoint setting out the structure.

10 The first slide, which I hope is on your screens now, shows at

11 the top "Operation Group South" and we've put in there the Guards

12 Motorised Brigade, the reason being that the command structure for the

13 relevant period of this indictment -- of the Guards Brigade and

14 Operation Group South was the same, Mile Mrksic being the commander and

15 Lieutenant-Colonel Panic being the Chief of Staff.

16 Do Your Honours have it on your screens? Yes.

17 The appointment of Mrksic was on the 8th of October, 1991, as

18 commander of Operational Group South, trial judgement paragraph 70, and

19 the significance is that all units serving in that zone of responsibility

20 were under his and the GMTBR's de jure command. Originally, the Vukovar

21 Hospital was under Operational Group North, but on the 18th of November,

22 and in our submission, a mark of the respect with which Mr. Mrksic must

23 have been held, the taking of that hospital was put into his zone of

24 responsibility, Operational Group South, and he was ordered to take the

25 hospital.

Page 75

1 Within the command structure of the Guards Motorised Brigade was,

2 of course, the security organ structure, and you'll see that the chief of

3 security for the Guards Motorised Brigade was Veselin Sljivancanin.

4 Therefore, because he -- they also formed the command structure of OG

5 South, he was also in that position of responsibility. His deputy was

6 Major Vukasinovic, and also, he had within that structure a security

7 officer, Captain Karanfilov. Your Honours, I mention those names in

8 order to just identify who they are and where they sit.

9 The other security organs from other chains of command, the Trial

10 Chamber found, would also be subordinate to him; so, for example, the

11 80th Motorised Brigade. That's trial judgement 127.

12 They also, security organs, had their own chain of command in

13 respect of counter-intelligence assignments, and that is what has been

14 alluded to by the Defence. I'll turn to that briefly later on.

15 Ms. Lewis will develop it. That's trial judgement 127.

16 Then for completeness, also within Operational Group South and

17 subordinated to it was the 80th Motorised Brigade, trial judgement 274,

18 and you'll see that the 80th has one company of military police under the

19 command of Captain Dragan Vezmarovic. Also, it has its own security

20 organ, Captain Vukosavljevic. Unusually, the Guards Motorised Brigade

21 also had two battalions of MPs at its disposal. I haven't shown them on

22 there because they're distracting, but unlike the 80th, which only had a

23 company maybe of 100 -- 60 to 100 men, the Guards had two whole

24 battalions, something like 4 to 5 times in each battalion the number

25 available within the 80th Motorised Brigade.

Page 76

1 Your Honours, if I provided sufficient information with the

2 slide, I'll take it off the screen, if I may, so it doesn't become a

3 distraction, and proceed with my submissions.

4 Your Honour, to turn to our main argument, listening to the

5 submissions of Mr. Mrksic, essentially what he says is that the Trial

6 Chamber's conclusion was based upon an argument that, Who was it if it

7 was not him? In our submission, the effects of his arguments before this

8 Appeals Chamber is really to assert the complete reverse, which is that

9 it was anyone but him that was responsible for what happened. That is,

10 despite him being the commander of the Motorised Brigade, as the Trial

11 Chamber found: A, if not the premier unit of the JNA, trial judgement

12 paragraph 61, commander of the Operational Group placed in charge of the

13 politically sensitive evacuation of the civilian prisoners of war from

14 the Vukovar Hospital, such evacuation being carried out as it was in the

15 eyes of the International Community and media, in the presence of

16 European monitors, the International Committee of the Red Cross,

17 high-ranking diplomats and many others, and despite the reliable evidence

18 of his continual involvement in the decision-making process relating to

19 the custody of the prisoners throughout the 19th and 20th of November,

20 1991.

21 Despite all this, he asserts that he was not responsible for the

22 care, security, or ultimately the deaths of those prisoners in any way.

23 This, he argues, was the responsibility of others.

24 In making his arguments, as is apparent from the submissions that

25 you've heard this morning, Mrksic consistently criticises the Trial

Page 77

1 Chamber's approach to its decision-making by citing to other evidence in

2 the record, suggesting other conclusions should have been drawn from it.

3 He attacks the credibility of witnesses and exhibits, points to other

4 evidence and exhibits from which he says other conclusions could have

5 been drawn. But as Your Honours will appreciate, these submissions

6 fundamentally fail to understand the nature of these proceedings in this

7 Chamber. As you have already said, this is not a hearing de novo, nor is

8 it an opportunity to repeat again that which has already been said at

9 trial.

10 In order to unseat the Trial Chamber's conclusions on the facts

11 in this case, and its assessment of the evidence, the appellant must

12 demonstrate that the factual conclusions reached by the Trial Chamber, as

13 Your Honours know, were ones that no reasonable Trial Chamber could have

14 reached when assessing the totality of the evidence. Of course, the

15 Defence would -- they must attack individual pieces, but the Trial

16 Chamber very much had in mind those individual attacks. It took them

17 into account, and it looked at the whole picture.

18 The standards to be applied relate to both findings based on

19 direct evidence and such circumstantial evidence. Your Honours have

20 recently pronounced that again in the Martic appeal judgement at

21 paragraph 11, the footnote 23 there citing to the many other cases in

22 which that has already been established: Strugar, Hadzihasanovic,

23 Blagojevic, amongst many others.

24 So in this case, in relation to the circumstantial inference that

25 Mrksic must have ordered the withdrawal of the 80th Motorised Brigade

Page 78

1 from Ovcara, it is our submission that the factual findings from which

2 that inference is drawn are left intact, as Mrksic cannot show that no

3 reasonable Trial Chamber could have made those individual findings, and

4 thus, he fails to show that the inference is one no reasonable Trial

5 Chamber could have drawn from the facts it found to exist.

6 In reaching its careful conclusions about this incident, which

7 itself only lasted two to three days, the Trial Chamber was entrusted

8 with the heaviest of responsibilities facing a decision-maker, that is,

9 to determine the criminal responsibility of the appellant. In doing so,

10 it weighed, sifted, reflected upon, and it's quite clear it did, and

11 assessed 188 days of oral testimony over this short 2- to 3-day time

12 frame. 84 witnesses gave live evidence. It considered 885 exhibits in

13 various forms: photographic, film, paper, and written statements. It

14 considered much of what my friends point to. For example, they refer, in

15 one of the few direct references during the course of their submissions,

16 to any testimony, exhibit, or trial judgement paragraph. They do refer

17 to Trifunovic at transcript 8168 as a snippet, but the Trial Chamber

18 considered it, and they footnoted it at Footnote 1289 in the judgement,

19 just showing how carefully they considered the evidence in this case.

20 He referred also to the differences between Vukosavljevic and

21 Vojnovic regarding the events at the briefing. At length, they were

22 developed before you as they were developed before the Trial Chamber, and

23 the Trial Chamber respecting that devoted six pages to assessing the

24 evidence relating to what occurred around that time; paragraphs 309 to

25 322.

Page 79

1 Every appellate court that does not conduct de novo hearings, as

2 this one does not, recognises that it cannot hope to perform again that

3 task which has been given to the Trial Chamber. What it can do is

4 supervise the decision-making process, but in so doing, properly

5 recognises the need to accord great deference to the actual fact-finding

6 tribunal, and we submit particularly in a case such as this, where there

7 was a lot of evidence to go through, that deference should be great

8 because the Trial Chamber was in a position to assess the witnesses live,

9 their demeanour, and ultimately their believability, and particularly in

10 this case where so much of the evidence that was given was live oral

11 testimony. It's not a case like it's a paper case, and Your Honours may

12 have some experience of trying fraud cases where perhaps you don't hear

13 many witnesses. You just look at mounds and mounds of paper. Perhaps

14 the same arguments can't be made about the assessment of demeanour,

15 believability, hearing the witnesses live. That's not the case here.

16 And as can be recognised in this Chamber - Tadic Appeal Judgement

17 64 - different decision-makers can reasonably reach opposite conclusions

18 upon the same totality of the evidence. This shows that the mere fact

19 other evidence exists which could create a different conclusion will not

20 mean that the conviction is wrong. What matters is how the Trial Chamber

21 assessed the evidence.

22 In this case, as a matter of law and in fact, the appellant has

23 failed to show any error on the part of the Trial Chamber in how it

24 assessed the evidence of witnesses or generally.

25 The Trial Chamber was very careful to express how it was going to

Page 80

1 assess the evidence; trial judgement 11 to 16. It recognised that there

2 were conflicts and that it would need to resolve some but not all of

3 them. When it assessed witnesses, it gave explanations as to why it

4 accepted or rejected them. For example, in relation to the Chief of

5 Staff, Deputy Commander Lieutenant-Colonel Panic at trial judgement 297,

6 it said this:

7 "The Chamber notes that it has reviews the evidence of Panic with

8 great care, especially about the relevant events of the 19th and 20th of

9 November, 1991, and has considered it in the light of the other evidence

10 about these events. It has also carefully weighed its assessment of the

11 credibility of Panic, taking into account his demeanour as he gave

12 evidence, the events that are otherwise established to have occurred, and

13 the demeanour of those who gave differing accounts about these events."

14 In the Chamber's assessment, Lieutenant-Colonel Panic was

15 generally and in respect of most matters, an honest and reliable witness.

16 Compare that with the assertion of the Defence in this case that they

17 found his statement was in most part not believable. That's not right.

18 Another example, and I give a few, in relation to the witness

19 Susic at trial judgement 299 to 302, the Chamber devoted two and a half

20 pages of its judgement in recounting the concerns of the Defence,

21 addressing them, assessing the competing witness testimony, and reaching

22 its conclusions. In relation to the witness Vojnovic at trial judgement

23 321, they said this:

24 "The circumstances as disclosed by the evidence leave the issue

25 as contentious and unresolved. Because of this, the Chamber approaches

Page 81

1 the evidence of Lieutenant-Colonel Vojnovic with extreme caution. The

2 Chamber observes, however, that when dealing with this issue, Vojnovic

3 gave a clear impression of being frank and honest in respect of the

4 questioning of reporting to Mile Mrksic as best his recollection of the

5 interviews and proceedings in 1998 allowed."

6 Other examples - and I will stop here - in relation to a conflict

7 between Vujic and the witness Korica at trial judgement 173, the Trial

8 Chamber again weighed, balanced, concluded, and gave reasons why it

9 preferred evidence where it did reject accounts or even partial accounts

10 of an individual witness.

11 In our respectful submission, therefore, it is very clear that

12 this Trial Chamber had very much in its collective mind the need to weigh

13 and assess the witnesses very carefully and to reach a proper considered

14 decision in relation to their individual reliability when necessary. It

15 didn't do it in every case, nor did it need to do so in every case, but

16 what is clear from their overall approach is how they dealt with this

17 assessment, and insofar as his challenges relate to the Trial Chamber's

18 approach to the assessment of evidence, therefore, and most of them do,

19 if not all, the way they are framed, his challenges must fail.

20 Mrksic seeks to blame in this case the local commands or the

21 Command of the 80th Motorised Brigade or the security organs for what

22 happened. In relation to the 80th, he refers to an exhibit, although he

23 doesn't give the exhibit reference, the 19th of November, which he says

24 shows they were expecting prisoners the next day. In our submission, it

25 doesn't show that. It shows that there was a discussion at the briefing

Page 82

1 relating to the evacuation of the hospital but not about where prisoners

2 were going or who was to receive them. That was because, of course, that

3 hadn't been decided on the 18th-19th. So he seeks to create doubt about

4 who it was that made the order to withdraw. The Trial Chamber didn't

5 consider there was any reasonable doubt about that.

6 He doesn't dispute that he was the overall commander of

7 Operational Group South. He doesn't dispute that the hospital evacuation

8 was within his zone of responsibility. He doesn't dispute that he

9 ordered it. Instead, he seeks to confine his responsibility, you may

10 think confusingly, to simply the evacuation of civilians, hospital

11 workers, sick and wounded, and more, that that was delegated to

12 Veselin Sljivancanin. That's at paragraph 139 of his appeal brief. He

13 argues that Sljivancanin was delegated to do this because the

14 Security Administration was in charge of the evacuation of prisoners of

15 war and their security, and so he says he had no responsibility over

16 that. And he refers, Your Honours, in oral submissions to Exhibit 819,

17 which he relies upon to say that the security organ was in charge.

18 Well, Your Honours, in our submission, if you look at

19 Exhibit 819, which is a report dated the 12th of October, 1991, so many

20 days before, from the security organ of the GMTBR, what it refers to is

21 the assessment of security issues, the interviewing of suspects, and in

22 which -- in the body of the report the details of what have been carried

23 out is set out. It doesn't refer to the security of prisoners of war,

24 only to their interview. That's consistent with the triage that carried

25 out -- that was carried out. And interestingly, right at the very end,

Page 83

1 the author of the report says this:

2 "The security organs are under great strain because they're

3 performing many tasks which do not fall under their jurisdiction."

4 In this case, the order to evacuate the hospital and to deal with

5 the prisoners of war came from Mile Mrksic, that the security of those

6 prisoners would not normally come, in our submission, within the

7 jurisdiction of the Security Administration. That would be a matter for

8 Mrksic, which is why Sljivancanin was tasked with the whole thing by him,

9 as the Trial Chamber found.

10 So, Your Honour, he argues that the obvious choice to cover the

11 civilian aspects was Sljivancanin, and I've explained why it's, in fact,

12 the other way around. And so he says the movement of the prisoners was

13 nothing to do with him. Whatever happened to them was down to others,

14 particularly Sljivancanin and the security organs; Appeal Brief

15 140 to 149. He also alleges that the crimes occurred in the zone of

16 responsibility of the 80th and suggests that because Mrksic had created

17 local commands, somehow they were responsible for what happened; Appeal

18 Briefs 25 to 102. But the Trial Chamber largely relied upon, and

19 correctly, in our submission, the evidence of Lieutenant-Colonel Panic,

20 his Chief of Staff, when it found that the 80th Motarised Brigade came to

21 be at Ovcara on Mrksic's orders - trial judgement 305 - and this was

22 because there had been an interim decision by Mile Mrksic as to what

23 should be done regarding the transport of prisoners - trial judgement

24 305 - following on from the government meeting.

25 Interestingly, Mrksic, in his appeal brief at 167, himself states

Page 84

1 that Panic's role was "a deputy commander." Well, yes, we agree. He

2 then goes on to say this:

3 "He was in charge of supervising and providing the implementation

4 of commanders' orders. His role should be viewed in that light."

5 The Trial Chamber did consider Panic's role in that light, and

6 thus, it's no surprise, in our submission, that in the implementation of

7 Mrksic's various orders concerning the prisoners, Lieutenant-Colonel

8 Panic regularly appears. We see him present at the government

9 meeting - trial judgement 225, 296, and 305 - where the fate of the

10 prisoners was discussed. He's at the barracks of the JNA on the morning

11 of the 20th, where the prisoners were being held and mistreated - trial

12 judgement 296 - and later again, he turns up at Ovcara to where they were

13 transferred, beaten, and ultimately murdered; trial judgement 308. At

14 all points, Mrksic received reports from Panic as to his observations and

15 recommendations. He's reporting from the barracks; he's reporting from

16 the government session; he's reporting from Ovcara, where he sets out

17 what it is he has seen. Why should that happen if it is not Mrksic that

18 is responsible?

19 In addition, it's clear that Mrksic ordered Sljivancanin to carry

20 out the actual evacuation and deliver their prisoners to

21 Sremska Mitrovica; trial judgement 191 and 295. The roles of these two

22 men is not mutually exclusive. They simply reflect different aspects of

23 what was going on that day with Mrksic retaining overall responsibility.

24 The trial judgement found that Panic reported his observations of

25 the scenes at Ovcara to Mile Mrksic - trial judgement 308 - and in his

Page 85

1 evidence at transcript Reference 14473, Panic says this, relating to what

2 it is he reported:

3 "I conveyed that they needed to check the security detail and

4 reinforce it, and I said that I thought that somebody ought to be sent

5 there whose specialty it was so that they could make appropriate

6 corrections, and I concluded the same with Vojnovic; namely, that

7 security needed to be reinforced.

8 "Q. And you state in paragraph 86, this is in reference to the

9 statement: 'As part of that that told Mrksic that you had doubts about

10 the safety of those prisoners at Ovcara?'

11 "A. Yes.

12 "Q. And you wanted someone to evaluate the situation' - if you

13 look at page 87 - 'to make sure that the safety of the prisoners was

14 guaranteed.' Those are your words? Paragraph 87.

15 "A. Yes."

16 And then he goes on at page 14474 to offer his view as to

17 explaining why he'd said what he'd said. He said this:

18 "Considering my feelings about the local Serbian TO and the fact

19 that Colonel Mrksic knew about the threat to the safety of the prisoners

20 posed by the local TO, he could have used units of the Guards Motorised

21 Brigade to neutralise or eliminate this threat. The local Serbian TO was

22 no match for the Guards Motorised Brigade."

23 And it was put to him, is that what he'd said in his previous

24 statement. He said yes.

25 "Is that what you said?"

Page 86

1 "Yes."

2 Your Honour, in relation to Sljivancanin, the Prosecution adopts

3 its submissions concerning his role that it has made in its own appeal

4 and in response to Sljivancanin's appeal, and I don't intend to repeat

5 those submissions within Mrksic's appeal.

6 Mrksic was the ultimate decision-maker, in our submission, on the

7 fate of the prisoners, at least in Operational Group South's zone of

8 responsibility. It's interesting that Defence quote to what Jaksic --

9 the Defence witness Jaksic. The Defence's own witness, Jaksic, who was

10 previously the commander of the TO before he was -- local TO before he

11 was replaced by Mrksic, in fact, Jaksic said that he was asked on the

12 morning of the 20th of November by the so-called government to act as a

13 mediator - that's his word, "mediator" - between the government and

14 Mile Mrksic on that morning, and he says at transcript 11920 that it was

15 to Mrksic he went to ask if the prisoners, on behalf of the government,

16 could stay in the area, that is, not to be removed out to

17 Sremska Mitrovica, to be told firmly, No, they're going to

18 Sremska Mitrovica.

19 Your Honours, in our respectful submission, what is relevant

20 about that is that the local people, those in the know, as it were, those

21 who could be expected to know to whom it was they had to go to get a

22 decision, were not going to Veselin Sljivancanin or the security line of

23 administration to make this vital decision; they were going to

24 Mile Mrksic on the morning of the 20th of November. Why would that be,

25 if the truth was he had no responsibility?

Page 87

1 Mrksic was informed about and made decisions relating to the care

2 of the prisoners that day on the 20th. He knew about the incidents at

3 the barracks. Susic and Panic told him - trial judgement 301 - and the

4 Trial Chamber found that these were incidents that Mile Mrksic would have

5 been told about because this was an issue, quote, "in which he had a very

6 direct concern and responsibility, just as he had a direct concern and

7 responsibility as to what should be done with the prisoners that day."

8 It was he that decided to divert the prisoners to Ovcara, he that ordered

9 the 80th to receive the prisoners at Ovcara. He knew that the problems

10 at Ovcara, and he chose to do nothing about them, then or later, in our

11 submission. When he did act, it was to withdraw the only security they

12 had and to consign them to their fate.

13 The presence of those prisoners and the political situation

14 regarding their treatment was in the forefront of the international mind

15 at the time. Delegations were being regularly received at Mrksic's

16 command post. Why would it be there if it was another that was

17 responsible? And in our submission, it is absurd to suggest that the

18 only concern Mrksic had was for civilians and that somehow the prisoners

19 within his zone of responsibility were actually outside of his concern

20 within that zone of responsibility.

21 He was the commander entrusted with the taking of the hospital

22 and its subsequent evacuation. It was to him as commander that others

23 turned to assistance be decisions about the movement of prisoners and

24 their security, and in our submission it is absurd, again, to suggest

25 that he would not have been involved in this process, given the

Page 88

1 sensitivities at the time, the clear need for authority at the time, or

2 that anyone but him, in such a sensitive situation, could or would have

3 ordered the withdrawal of the 80th Motorised Brigade MPs.

4 The Defence have posited the question: "Well, surely he wouldn't

5 have done such a thing because others within the JNA chains of command

6 would have been alarmed at such an activity." But, Your Honours, that

7 doesn't reflect what may be the reality here, that others should also

8 have been before a tribunal, facing up to their criminal responsibilities

9 for what occurred. Your Honours, and the Court below were only trying

10 these defendants, and it may not have been able to answer precisely why

11 things happened. There are not always answers to everything, but in this

12 case, having sifted and weighed all of the evidence, the Trial Chamber

13 was satisfied that Mile Mrksic's criminal responsibility was established

14 in this case, and in our submission, the Trial Chamber's findings are

15 both logical and unassailable, and his appeal should be dismissed.

16 Your Honours, what I propose now to do is to hand over to

17 Mr. Wood to develop the submissions in relation to the order to withdraw,

18 unless there are any questions for me at this stage.

19 JUDGE MERON: No, no questions.

20 MR. ROGERS: Great. Thank you, Your Honours.

21 JUDGE MERON: Mr. Wood.

22 MR. WOOD: Your Honours, at the heart of Mile Mrksic's conviction

23 for aiding and abetting the murders of 194 people is the finding that he

24 ordered the withdrawal of the military police from Ovcara Farm on 20

25 November 1991. As Your Honours are aware, the Chamber concluded that

Page 89

1 Colonel Mrksic ordered the Military Police Company of the 80th Motorised

2 Brigade to leave Ovcara that evening, an act which delivered the Vukovar

3 Hospital prisoners into the hands of the 300 murderous paramilitaries and

4 TO members who had gathered there. The Chamber concluded that Mrksic

5 knew this act would likely result in the murders of these men and women.

6 Mrksic has failed in his Grounds 6, 7 and 8 of his appeal to show that

7 this conclusion was one that no reasonable Trial Chamber could have made,

8 and his appeal should be dismissed.

9 Over the course of the next few minutes, I'll highlight the key

10 findings that the Trial Chamber made as it picked its way through this

11 extensive trial record to conclude that it was Mrksic who gave that

12 order. I'll walk the Appeals Chamber through the Trial Chamber's

13 significant findings to highlight the precision of the Trial Chamber's

14 analysis and to show that this finding was the only reasonable conclusion

15 available from the evidence.

16 Now, I'll start by building a little bit on what you've just

17 heard about the background of Mile Mrksic and his position and role in

18 the events of 19 and 20 November 1991.

19 The Chamber found that Mrksic was the key military commander in

20 relation to the Vukovar Hospital evacuation. A wealth of evidence showed

21 that Mrksic was the man to whom all authorities turned when it came time

22 for decisions to be taken. For example, it was to Mrksic that

23 Dr. Vesna Bosanac, the director of the hospital, turned on 19 November

24 when it came time to arrange the evacuation. That's at trial judgement

25 137. It was with Mrksic that the ECMM monitors met on 19 November also

Page 90

1 to discuss the evacuation. That's at trial judgement 139. It was with

2 Mrksic that a UN diplomatic and fact-finding mission met on 19 November

3 so that it could gather information about whether UN peacekeeping forces

4 should be sent there. Even men of the same rank acknowledged that it was

5 Mrksic who was the area commander; for example, when the three JNA

6 counter-intelligence officers that you've heard about today, Colonels

7 Vujic, Tomic, and Kijanovic, arrived from Belgrade in November, they

8 reported to Mrksic, the Chamber find; they don't order him. That's at

9 169 of the judgement. Once these colonels arrive at Velepromet on 19

10 November, they asked Mrksic for reinforcements. They don't order him to

11 provide them. That's at 173 of the judgement. And, finally, when these

12 colonels have seen enough at Velepromet, and the Chamber finds that they

13 saw there men who had been beaten and the colonels themselves were

14 threatened by the TOs who had gathered there, they tell Mrksic they won't

15 take any further part. That's at 172 of the judgement. One of them,

16 Colonel Vujic, tells Mrksic the situation is, quote, "an attack against

17 you as a commander." And that's at 174 of the judgement. This, Your

18 Honours, is an explicit recognition that it was Mrksic who was in charge

19 and that he was failing in his duty to protect the prisoners. Coming

20 just a day before the events of the 20th, his words proved prophetic.

21 Now, the evidence also showed that Mrksic was directly and

22 personally involved in every aspect of the prisoners' evacuation,

23 transportation, and security on the last day of their lives, and if I

24 could direct Your Honours' attention to the screens, that would display a

25 Powerpoint presentation.

Page 91

1 And as you can see, Your Honours, at 6.00 a.m., Mrksic orders the

2 evacuation of the prisoners from the hospital. The night before, of

3 course, he had appointed his subordinate, Veselin Sljivancanin, to

4 evacuate the prisoners and to be responsible for their transport and

5 security. That's at 295 and 400 of the judgement.

6 At around 10.30, Mrksic sends his Chief of Staff, Miodrag Panic,

7 to a meeting of the SAO government. He tells Panic to instruct those

8 present that he would accept and act in accordance with the decision of

9 the government meeting as to what should be done with the prisoners.

10 After the evacuation from the hospital, Mrksic orders the

11 prisoners to be held at the JNA barracks in Vukovar, countermanding his

12 earlier order that they be sent to Sremska Mitrovica.

13 At 11.00 a.m., after the buses had arrived at the barracks,

14 Mrksic bolsters their security after hearing an alarming phone call from

15 Susic, a military police commander, and I'll explain a little bit about

16 that in a minute.

17 Finally, at around 2.00 p.m., Mrksic orders the prisoners to be

18 taken to Ovcara Farm. Then, as I'll explain, Mrksic makes the final

19 order of the day to withdraw the military police from the 80th -- of the

20 80th Motorised Brigade.

21 Now, this evidence shows and the Chamber found that Mrksic was

22 receiving constant updates from his subordinates, who were telling him

23 that the prisoners were being abused.

24 At 10.30 a.m., he hears from his Chief of Staff, Panic, from the

25 JNA barracks, and, again, I'm not sure if Your Honours' attention is

Page 92

1 directed to the screen, but there is another presentation. At

2 11.00 a.m., he hears from one of his military police battalion

3 commanders, Susic, also reporting from the barracks. Sometime after

4 3.00 p.m., Mrksic hears again from his Chief of Staff, this time about

5 Ovcara.

6 Sometime in the afternoon of the 20th, he hears from Vukasinovic

7 of his security organ, also reporting about Ovcara. He hears twice, once

8 during the briefing and once shortly after, from Vojnovic, the commander

9 of the 80th Motorised Brigade, also reporting about Ovcara. Finally,

10 after the briefing, Mrksic hears from Vukosavljevic. This is Vojnovic's

11 security chief from the 80th Brigade, also reporting from Ovcara, and

12 what he heard from these men was indeed alarming. From Susic, he hears

13 the safety and security of these people at the JNA barracks are in

14 danger. From Vukasinovic, reporting about Ovcara:

15 "I propose that we strengthen security detail there because I

16 have a feeling there might be some problems in the future ."

17 From Vojnovic, whom he hears from twice, Vojnovic testified and

18 the Chamber found that he told Mrksic:

19 "At Ovcara, there's a mess. I saw a man hit one of the prisoners

20 with a rifle-butt as he was passing through the gauntlet up to the

21 entrance of the hangar."

22 From Vukosavljevic, he hears, also reporting from Ovcara:

23 "A group of men at Ovcara were threatening the prisoners being

24 secured by the 80th Motorised Brigade, and the group of men contended

25 that the prisoners belonged to them and not to the 80th Motorised

Page 93

1 Brigade."

2 The Chamber finds then that throughout this day, Mrksic was

3 involved in every major decision regarding the transport and security of

4 these prisoners and that he was given constant updates from his

5 subordinates about their safety. It is, therefore, illogical to believe

6 that Mrksic would not also have made the final decision of that day, to

7 leave the prisoners in the hands of the TO and the paramilitaries. The

8 only reasonable explanation is that the withdrawal order came from the

9 same man who gave each of the other important orders that day,

10 Mile Mrksic. But the Chamber did not rely, as the Defence indicates

11 today, solely on Mrksic's position of authority to conclude that he was

12 the one who issued the order. It also delved into the evidence of the

13 transmission of the order itself and came to the only reasonable

14 conclusion that it was Mrksic who issued that order.

15 Specifically, the Chamber found a line between Mrksic and the

16 withdrawal -- and again, I'm illustrating my point on a slide here, Your

17 Honours. First, Mrksic ordered Borce Karanfilov, one of Sljivancanin's

18 security officers, to withdraw the 80th Motorised Military Police Company

19 from Ovcara. That's at 293 and 329 of the Trial Chamber judgement.

20 Karanfilov, in the Chamber's finding, conveyed this order to Captain

21 Dragan Vezmarovic, who was the commander of the 80th Motorised Military

22 Police Company. That's at 277 and 321 of the Trial Chamber judgement.

23 Now, Vezmarovic says that this occurred about one and a half hours after

24 he arrived at Ovcara, which in his testimony was about 5.00 p.m. After

25 Karanfilov arrived at Ovcara, the Chamber found, he and Vezmarovic, the

Page 94

1 commander of the Military Police Company who was then providing security,

2 had an extensive conversation. Karanfilov told Vezmarovic that the,

3 quote: "Vukovar TO was to take control of the security of the building"

4 - that is the hangar - "and the prisoners." Per arrangements made at a

5 meeting. That's at 277 of the Trial Chamber judgement.

6 Karanfilov then introduced the TO commanders to Vezmarovic and

7 told the military police commander that they would be the ones who would

8 take charge of the prisoners. Vezmarovic asked the commanders whether

9 they had enough men to perform all the security tasks. He was told that

10 they did, and he withdrew his policemen by 9.00 p.m. at the latest.

11 That's at 277 of the Trial Chamber judgement.

12 Other evidence corroborates both the timing and source of this

13 order, the Chamber found. The Chamber found that Milorad Vojnovic,

14 commander of the 80th Motorised Brigade, reported to Mrksic about what he

15 saw at Ovcara, again, twice that evening, first at the evening briefing -

16 that's at 315 of the judgement - and again shortly after it ended, and

17 that's at 316 of the judgement. During this second conversation, Mrksic

18 asked Vojnovic something along the lines of, What were you doing there?

19 That's at 281 of the judgement. This shows, in the Chamber's finding,

20 that Mrksic was surprised to discover that the military police were still

21 at Ovcara, and this, the Chamber finds, is because Mrksic had already

22 ordered the military police to withdraw from that place.

23 Vojnovic then turned to Drago Vukosavljevic, his security chief,

24 telling him to go to Ovcara and order the military police to leave.

25 That's at 281 of the judgement. Vukosavljevic arrived at Ovcara at about

Page 95

1 8 p.m., but he found that Vezmarovic, the military police commander, and

2 his policemen had already left the hangar and were preparing to leave the

3 area, and that's at 276. Now, this confirms, Your Honour, that the

4 military police had already received their marching orders from Mrksic

5 via Karanfilov. The evidence fits together.

6 Now, as Defence has pointed out, the evidence as to this order

7 was not without its contradictions. Karanfilov told the Chamber that he

8 had never had a conversation with Vezmarovic on the 20th of November,

9 1991. The Chamber was thus faced with a conflicting account. Resolving

10 this inconsistency ultimately boiled down to one essential question: Was

11 the Chamber to believe Karanfilov and throw out the testimony of

12 Vezmarovic, Vukosavljevic, and Vojnovic, or was the Chamber to believe

13 the latter three and reject the testimony of Karanfilov? In evaluating,

14 as it must, the credibility of each of these men, the Chamber found that

15 Karanfilov was not reliable and that the others were. The Chamber was

16 entitled to make these findings, and indeed, they were reasonable ones.

17 As to Karanfilov, the Chamber found he was personally biased - this is at

18 282 of the judgement - and that his testimony contained inconsistencies

19 which could not be rectified with other evidence, like whether and where

20 he spoke with Sljivancanin on 20 November, and I refer you to 282 of the

21 judgement for that. The Chamber also found Karanfilov not credible as to

22 other material aspects of his testimony, and rather than going into

23 those, I'll refer Your Honours to paragraphs 216 and 300 of the

24 judgement.

25 On the other hand, the Chamber found that the testimony of the

Page 96

1 other three men to be credible, and Vezmarovic in particular had no

2 personal interest in contriving a story, the Chamber found. If he had,

3 he probably would have come up with a better story, in the Chamber's

4 finding.

5 If I could draw your attention to the screen again. Now,

6 remember, Your Honours, that Karanfilov was the subordinate of

7 Veselin Sljivancanin. He worked for the security organ of the Guards

8 Motorised Brigade. Now, as Defence has pointed out, Vezmarovic was a

9 member of an entirely different unit, the 80th Motorised Brigade.

10 Vezmarovic normally reported to Vojnovic, the commander of that brigade.

11 The men had the same rank, that of captain, and in the Chamber's finding,

12 if Vezmarovic was in the business of making up stories, why would he

13 invent a story that contained such an unusual chain of command?

14 Receiving an order through his ordinary chain of command, the Chamber

15 found, would have been more likely to be believed and, if you're in the

16 business of making up stories, would also have the added benefit of

17 alleviating Vezmarovic for being on the hook for leaving Ovcara without

18 the proper order or approval of his commander, and the Chamber made this

19 analysis at 283 of the judgement.

20 Another piece of evidence has been raised in today's hearings,

21 Your Honour; that is, that of the war diary of the 80th Motorised

22 Brigade. Defence says that indicates the military police did not leave

23 until 2235, rather than sometime before 9.00 p.m., as the Chamber found.

24 Well, this argument ignores the fact that the Chamber considered this

25 evidence, and that's at 286 of the judgement, weighed it against all the

Page 97

1 other evidence, and found that the entries could not be relied upon. The

2 Chamber considered this and made its determination based on the totality

3 of the evidence, as the Chamber must.

4 The Chamber also considers other possibilities in its arrival at

5 the conclusion that it was Mrksic who had issued that order. It asks:

6 Could Vezmarovic have been acting on his own? That is, Vezmarovic, the

7 commander of the Military Police Company. Could Vojnovic have been

8 acting on his own? Did Sljivancanin have a role in the transmission of

9 this order? The Chamber considered each of these questions and came to

10 the only conclusion reasonable from the evidence, that the order can only

11 have originated from Mrksic, and that's at 321. You've heard a little

12 bit about that line today as well.

13 Defence, at page 9, line 11 of today's hearing, seems to imply

14 that this conclusion, which is an indication of the circumstantial

15 aspects of certain parts of this evidence, cannot constitute proof beyond

16 a reasonable doubt, and this conclusion is obviously incorrect.

17 As to these particular witnesses, the Chamber rejects, based on

18 its evaluations --

19 JUDGE MERON: Excuse me, Mr. Wood. I just wanted to make sure

20 that at one point or another, you or your colleagues from the Prosecution

21 will address the questions which we listed on the Prosecution -- the

22 schedule.

23 MS. BRADY: Perhaps, Your Honour, I'm best placed to answer that

24 question.

25 The Prosecution will address all of the four questions that Your

Page 98

1 Honours have posed, two of which relate directly to the Prosecution's

2 appeal and will be dealt with on Friday, and two of which -- actually,

3 excuse me, three of which are directed to the Prosecution's appeal and

4 will be dealt with on Friday, and one of which will be dealt with this

5 afternoon in relation to Sljivancanin's.

6 JUDGE MERON: Thank you very much, Ms. Brady. I just wanted to

7 make sure that this is on your schedule.

8 MR. WOOD: Yes. Thank you, Mr. President.

9 Now, again, getting back to the consideration of the credibility

10 of Vojnovic and Vezmarovic, I'll just refer Your Honours to

11 paragraphs 279 and 321 of the judgement for that. Essentially, the

12 important point is the Chamber made these assessments after seeing these

13 men testify and weighing their evidence against all the other evidence

14 and found that they were reliable, and of course, these are reasonable

15 conclusions.

16 As to Sljivancanin, the Chamber rejects the idea that this order

17 could have been transmitted through him, and I will refer Your Honours to

18 paragraph 661 of the Trial Chamber judgement, where the Chamber finds he

19 didn't arrive back until after 8.00 p.m., that is, back at Negoslavci,

20 whereas the Chamber found that Karanfilov, who is the agent for

21 transmission -- transmitting the order, could have been around Negoslavci

22 at the time the order was given.

23 And in answer to the Defence contention that it's illogical that

24 an order would have come from Mrksic to Karanfilov, the Chamber also

25 finds that it was not unusual for Mrksic to deal directly with his

Page 99

1 security organs that day. It finds, for example, that he dealt with

2 Vukasinovic directly. That's at 285 of the judgement.

3 Against all of this, the Chamber considered the unique role that

4 Mrksic played with respect to the prisoners on this last day of their

5 lives. Mrksic, the Chamber finds, was directly concerned in dealings

6 that day between the JNA and the SAO government. This is at 285 of the

7 judgement. The Chamber found virtually, inevitably, Mrksic had a direct

8 responsibility in the making of decisions and their implementation in the

9 course of that process; again, at 285.

10 Based on a totality of the evidence, after hearing all of the

11 testimony, weighing that against all the other evidence, the Chamber

12 concludes the order could only have come from Mrksic. This was the only

13 reasonable conclusion available from the evidence.

14 Mrksic clearly disagrees with this finding, and he makes his

15 opinion plain in submissions today. He fails, however, to show how this

16 essential finding, that is, that he was the one who gave that order, was

17 one that no reasonable Trial Chamber could have made. As the Prosecution

18 has pointed out in its response brief, Mrksic's attacks on appeal and

19 what you've heard today are either re-arguments of his case at trial or

20 subject to summary dismissal, per Brdjanin and other appeals case. Each

21 fails its essential burden to show that the Chamber's findings were those

22 that no reasonable Chamber could have made. The Chamber was entitled to

23 make this conclusion, Your Honours. More importantly, the Chamber was

24 right to make this conclusion. Mrksic's arguments should be dismissed.

25 And I'll turn the floor over now to my colleague, Ms. Lewis.

Page 100

1 JUDGE MERON: Ms. Lewis, please.

2 MS. LEWIS: Thank you, Your Honours.

3 I will be addressing Grounds 1, 2 and 8 of Mrksic's appeal, in

4 which he argues that the Trial Chamber erred in convicting him for the

5 crimes committed at Ovcara because responsibility in fact lay with the

6 security organs and the local command. I will firstly address Ground 2,

7 in which he argues that it was the security organs who were responsible

8 for the evacuation because this function was within their remit and chain

9 of command. Consequently, he argues, they were responsible for the

10 crimes. I will then address Grounds 1 and 8, in which he argues that it

11 was the local command who were responsible.

12 To turn, then, to Ground 2, Your Honours, this argument fails for

13 two reasons. It fails firstly because, as my co-counsel Mr. Wood has

14 argued, the Trial Chamber found that the evacuation of the prisoners was

15 ultimately within Mrksic's command and control and that he made each of

16 the critical decisions which led to the order to withdraw and the crimes

17 against the prisoners. In view of the fact that Mr. Wood has dealt with

18 this fully, I won't address it further. I will, however, address the

19 second basis on which this argument fails, which is that it fundamentally

20 misunderstands the counter-intelligence function of the security organs;

21 in particular, that in relation to the evacuation, the security organs

22 would have had primary responsibility for the counter-intelligence

23 component of this operation, the triage of the prisoners, and that for

24 this component they would have been responsible to their superior

25 security organs, but that for the other component of the evacuation, the

Page 101

1 operational components, the actual securing and transport of the

2 prisoners, they would have been subject to Mrksic's command.

3 THE INTERPRETER: Could the counsel please slow down. Thank you.

4 MS. LEWIS: Your Honours, the Trial Chamber found that for

5 counter-intelligence functions, the security organ was responsible to

6 their superior security organs, but that for all other functions, they

7 were subject to the unit commander.

8 In relation to OG South, the Trial Chamber found, therefore, that

9 the subordinate security organs would have reported to Sljivancanin and

10 that he would have had the ability to direct, coordinate, and guide their

11 work, but that he could not command them; trial judgement paragraphs 127

12 and 398. For this conclusion, the Trial Chamber relied on a number of

13 pieces of evidence. Firstly, it relied on Exhibit 107, the Rules of

14 Service of the security organs, in particular, paragraphs 16 and 18.

15 Paragraph 16 provides that the security organ is directly subordinated to

16 the commanding officer of the unit, in this case, Mrksic. Paragraph 18

17 provides that the security organs of the superior command provide

18 assistance to those organs and organise, direct, coordinate, and

19 supervise their work; trial judgement paragraph 128. The Trial Chamber

20 also relied on the testimony of Theunens, the Prosecution's military

21 expert, who testified that in an establishment unit, security organs

22 exist only with respect to counter-intelligence activities, and the

23 reference is 10867 to 868, and trial judgement paragraph 129.

24 Your Honours, Theunens testified further that the relationship

25 between the security organs of a higher and a lower command was not one

Page 102

1 of command and control in the military sense but, rather, one of

2 specialised guidance. Whilst the security organs reported to the

3 security chain and received guidance, they were subordinated to the unit

4 commander; 10725 and 10858. This testimony was confirmed by the

5 testimony of Sljivancanin himself, who described the relationships

6 between security organs of a higher and lower level as a management

7 relationship and not one of command. Sljivancanin testified that there

8 was no dual chain of command, that security organs, like any other

9 officer, were subordinated to their unit commander, but that in relation

10 to their counter-intelligence functions, because of the confidential

11 nature of these functions, they received guidance and advice from within

12 the structure of the security organs.

13 THE INTERPRETER: Please slow down. Thank you.

14 MS. LEWIS: I apologise.

15 And the reference is 13440 to 41 and 13434 to 36, and trial

16 judgement paragraph 127.

17 Your Honours, these -- this finding was confirmed by the

18 testimony of other witnesses to whom the Trial Chamber also referred:

19 the testimony of Colonel A gotic in the Slobodan Milosevic trial, which

20 was admitted in this case as Exhibit 75 at page 23271; the testimony of

21 Vojnovic, the commander of the 80th Motorised Brigade at 8827;

22 Vukosavljevic, the security chief of the 80th at 8651 to 8652; and Karan,

23 a security officer subordinated to Sljivancanin at 15539 to 40, and

24 again, the reference to the judgement is paragraph 127.

25 So, Your Honours, if we consider the evacuation operation against

Page 103

1 the background of the reporting and command structure of the security

2 organs, it becomes clear, one, Mrksic's argument fails; the evacuation

3 operation had two components. We know that it had a counter-intelligence

4 component, the triage, identifying which of the prisoners had been

5 members of the armed forces and had committed crimes during the

6 hostilities. This function fell -- was the primary responsibility of the

7 security organs, and we see that from the testimony of Major Pringle, an

8 expert military witness for the Prosecution at 11101 and again from the

9 testimony of Captain Karan at 15555. Major Pringle testified that in

10 view of the essential nature of this component of the evacuation, it was

11 not surprising and one would have expected that the security officers

12 would have been present at the various locations throughout the day.

13 Your Honours, it is for this reason that the Appeals Chamber

14 should reject my learned colleague from the Defence Mr. Vasic's

15 suggestions that there was something sinister in this. To the contrary,

16 it was fully consistent with the Trial Chamber's findings regarding the

17 role of the security organs on that particular day.

18 So, Your Honours, for the other components of the evacuation

19 operation, the operational components, the actual securing and the

20 transport of the prisoners, the security organs would have been subject

21 to the command of Mrksic.

22 Your Honours, I'm not going to deal in detail with the arguments

23 that Mrksic raises in his brief. Our response to this is fully canvassed

24 in our response brief. I will, however, touch on two of the specific

25 arguments that he made today.

Page 104

1 In his submissions, Mr. Vasic argued that the testimony of Vujic

2 and Sljivancanin show that the security organs were acting under the

3 command of the Security Administration. To the contrary, Your Honour,

4 the testimony of these witnesses merely confirm the Trial Chamber's

5 findings; that whilst they would have been receiving direction from the

6 superior security organs for the counter-intelligence aspect of the

7 evacuation, the triage, for all -- in all aspects, they acted subject to

8 Mrksic's command, and the relevant references are 4626 to 27 and 4521 to

9 22, that's for Vujic, the testimony of Sljivancanin to which I have

10 already referred, as well as the following references: 13991 to 92 and

11 13617.

12 Your Honours, the Appeals Chamber should therefore reject

13 Mrksic's submissions with regards to the security organs, and I will now

14 proceed to address his arguments regarding the role of the local command.

15 Mrksic has argued that as the local command, it was Vojnovic who

16 was responsible for the crimes at Ovcara, either because he failed to

17 adequately secure the prisoners, or because he permitted the withdrawal,

18 or, alternatively, for having himself issued the order to withdraw. This

19 argument should be rejected because it ignores critical findings of the

20 Trial Chamber. In particular, Your Honours, it ignores the fact that

21 Mrksic was ultimately found responsible for his own positive conducts.

22 He was found responsible for having issued the order for the 80th

23 Motorised Brigade to withdraw. That's trial judgement paragraphs 321 and

24 329.

25 Furthermore, Your Honours, this argument ignores the fact that

Page 105

1 the Trial Chamber found that at the relevant time on the 20th and 21st of

2 November, Vojnovic and the 80th were subject to Mrksic's command.

3 Therefore, as my co-counsel Mr. Rogers has argued, even if they were in

4 their own duties, they were at all times under Mrksic's command, and the

5 ultimate responsibility vested with him; trial judgement paragraphs 69 to

6 73, and 111 to 113.

7 Under Ground 8(a) of his submissions, Mrksic argues that after he

8 departed to Belgrade, he was no longer in command and that responsibility

9 again vested with Vojnovic. Once again, Your Honours, this argument

10 fails because it ignores the Trial Chamber's findings that Mrksic was

11 held responsible for his own conduct for withdrawing the 80th Motorised

12 Brigade, and that at the relevant time the local command was subordinated

13 to OG South and ultimately to Mrksic, and again, the references are

14 paragraphs 69 to 73 and 321 to 329.

15 To conclude, Your Honours, the Appeals Chamber should reject

16 Mrksic's arguments that it was Sljivancanin and the security organs and

17 Vojnovic and the local command, in effect, everyone and anyone but him,

18 who were responsible for the crimes at Ovcara. This ignores the Trial

19 Chamber's findings. It ignores the fact that Mrksic, a commander of, if

20 not the, then a premier unit of the JNA, had been specifically tasked

21 with carrying out the evacuation, that Mrksic had issued each of the

22 critical decisions which culminated in the crimes against the prisoners.

23 Mrksic ordered Sljivancanin to carry out the evacuation. It was Mrksic

24 who ordered Panic to attend the meeting of the SAO government and

25 communicate that he would act upon their wishes. It was Mrksic who

Page 106

1 ordered the prisoners to be held at the barracks to await this decision,

2 and it was Mrksic who ordered the prisoners to be transferred to Vukovar.

3 In addition, it was to Mrksic that everyone turned with their concerns

4 about the threat that was presented by the TO to the security of the

5 prisoners. His Chief of Staff, Panic; the commander of one of his

6 military police battalions, Susic; Vojnovic; and Vukosavljevic, the

7 commander and the security chief of the 80th; and the security officers

8 from Belgrade, Vujic, Tomic and Kijanovic, all brought their concerns to

9 Mrksic, and despite these repeated warnings, despite being told over and

10 over and over about the threat presented by the TOs and the

11 paramilitaries, Mrksic did not act to increase the security and remove

12 this threat. Instead, he withdrew the only protection that the prisoners

13 had, which culminated in their cruel treatment, torture, and ultimately

14 their murder.

15 Your Honours, we request the Appeals Chamber to reject Mrksic's

16 appeal.

17 JUDGE MERON: Counsel, could you tell us, when did Sljivancanin

18 learn of Mrksic's order to withdraw?

19 MS. LEWIS: Your Honour, the Trial Chamber found that Mrksic

20 communicated the order to Sljivancanin, the oral order, on the afternoon

21 of the 19th, the day before -- I'm sorry, Your Honours, I may have

22 misunderstood the question.

23 [Prosecution counsel confer]

24 MS. LEWIS: No, Your Honours, I apologise. I misunderstood the

25 question.

Page 107

1 The general answer is that it was around 8.00 p.m. on the 20th,

2 but this will form a part of Ms. Brady's submissions, and she will deal

3 with it in full.

4 JUDGE MERON: So Ms. Brady will return to this?

5 MS. BRADY: Yes, Your Honour. I will be spending a fair amount

6 of time on this question on Friday, in which I will set out the evidence

7 and the findings that we rely on to show that the only reasonable

8 conclusion that must be drawn from the totality of the evidence is that

9 when Mr. Sljivancanin returned to Negoslavci at about 8.00 p.m., he must

10 have learnt then that Mrksic had ordered the withdrawal of the JNA -- the

11 remaining JNA units at Ovcara. But I think it might be better to hear my

12 submissions, which are fairly lengthy on this point, on Friday.

13 JUDGE MERON: Thank you so much.

14 MS. BRADY: Thank you.

15 MS. LEWIS: Your Honours, if there are no further questions, that

16 concludes our submissions.

17 JUDGE MERON: Thank you.

18 [Appeals Chamber confers]

19 JUDGE MERON: Since there is only ten minutes to the time we have

20 fixed for the ending of this morning's session, I will not ask at this

21 stage the appellant to reply, but we will have our break now and resume

22 at 1400 hours sharp, 2.00 sharp.

23 We will now rise.

24 --- Luncheon recess taken at 12.19 p.m.

25 --- On resuming at 2.01 p.m.

Page 108

1 JUDGE MERON: Please be seated.

2 We are now about to start the second half of the proceedings

3 today, and before we do so, I would like to inform my colleagues and the

4 parties of a slight change in the schedule for the presentation of their

5 arguments because we are informed by the Court officers that we are all

6 able to sit in court for one hour and forty-five minutes at a time;

7 otherwise, we risk running out of tape and the proceedings won't be

8 audio-recorded. I have slightly adjusted the schedule for this

9 afternoon. My colleagues will find in front of them the corrected

10 schedule, and I would ask the Registrar kindly to circulate this amended

11 timetable to the parties.

12 We will start from reply by the appellant Mrksic, who will have

13 30 minutes to complete his case of the appeal for Mr. Mrksic.

14 MR. VASIC: [Interpretation] Thank you, Your Honour.

15 My learned friends from the Prosecution in response to our appeal

16 tried to plead in relation to the orders that were issued by Colonel

17 Mrksic as commander of Operations Group South and to base on that their

18 assertion that, therefore, he must have issued the order on the

19 withdrawal of the military police. On the one hand, this has to do with

20 orders that he had to make as commander, which is only natural, and the

21 withdrawal of the police is something that he's being charged for in

22 terms of individual responsibility, and there is not a shred of evidence

23 to that effect in the case file. You will not find a single witness

24 having stated that Mile Mrksic said that he had issued an order to

25 withdraw the forces from Ovcara. Even Vojnovic doesn't say that. He

Page 109

1 says unequivocally that he had not said that to him; rather, that that is

2 how he understood his question, What are you doing there?

3 However, this is happening precisely because in the judgement,

4 material evidence is being superseded, material evidence such as diaries

5 and orders. It is superseded by formal statements of witnesses, and

6 therefore, the Trial Chamber has a problem in terms of resolving timing

7 issues. They conclude that what is written in material evidence is not

8 correct and that what witnesses like Panic and Vojnovic state is correct.

9 The former remembered only in 2001 that the evacuation of the hospital

10 happened on the 20th of November, rather than the 21st, and the latter

11 only after 1998 remembered that on the 20th of November, he did see Mile

12 Mrksic after all.

13 I have to remind my learned friends and the Appeals Chamber of

14 the fact that the prisoners of war went to Sremska Mitrovica on the basis

15 of a regular procedure. You will see that from the judgement where the

16 Trial Chamber asserts that on the 18th of November, a group from Mitnica

17 went to Sremska Mitrovica. When the group went to Sremska Mitrovica,

18 when they arrived in Ovcara, they spent the entire night there, and lists

19 were made and a triage was carried out, but Mile Mrksic had nothing to do

20 with that whatsoever. I believe that that is not even being challenged.

21 That is to say, going to Mitnica via Ovcara is something that was

22 established by the organs who dealt with this matter.

23 My learned friends say that the 80th Brigade did not have orders

24 to prepare for guarding prisoners of war at Ovcara on the 20th of

25 November. I believe that that is not the case and that we should look at

Page 110

1 Exhibit 375, the entry of 1800 hours on the 19th of November; also,

2 Exhibit 891 that my learned friends invoked in the sense that --

3 THE INTERPRETER: Interpreter's correction: 819.

4 MR. VASIC: [Interpretation] This does not infringe upon the

5 position of the POWs. I don't believe that that was dealt with properly

6 because what is stated here is that they were interrogating potential

7 crime suspects, war crime suspects, and then they decided whether they

8 would hand them over to other organs without consulting the command and

9 the commander.

10 THE COURT REPORTER: I'm sorry, Your Honour. There seems to be a

11 problem with the LiveNote feed.

12 JUDGE MERON: The problem is with what?

13 THE COURT REPORTER: With the LiveNote feed. It has stopped and

14 we have to --

15 JUDGE MERON: Can we start now even if you fill in later the --

16 it's working now? It's working now, right? Okay. We will now resume,

17 and if you have to fill in later a few missing words, you'll do that.

18 Okay, Counsel.

19 MR. VASIC: [Interpretation] Thank you, Your Honour. I'm going to

20 continue from where the transcript stopped.

21 So my learned friends say that the Command of the 80th Brigade

22 had not been informed that on the 20th of November, POWs from the

23 hospital would be transferred to Ovcara. I believe that that is not

24 right. Therefore, we should see 375, Exhibit 375, the entry for 1800

25 hours on the 19th of November.

Page 111

1 As for Exhibit 819, I believe that it clearly demonstrates that

2 the security organs are in charge of triage and uncovering perpetrators

3 of war crimes and crimes in general. In practice, after interrogating

4 these persons, they decided on their further processing or handing them

5 over to other organs without consulting the Command or the commander of

6 the unit about that.

7 I have already referred to Exhibit 419 and the order of

8 Mile Mrksic for the evacuation of civilians and the sick and wounded from

9 the hospital, and the fact that when an order is issued concerning an

10 assignment, it is not issued in two parts as is determined by the Trial

11 Chamber but in a single part, and that is precisely what we have in

12 writing in the case file.

13 The decision on the establishment of a town command on Ovcara was

14 not made by Mile Mrksic because of the transfer of prisoners of war but,

15 rather, on the basis of an order issued by the Command of the 1st

16 Military District and the Supreme Command. I've already spoken about

17 that; namely, this was meant to ensure the safety of civilians and their

18 property in areas where there were no functioning civilian authorities.

19 Also, I have to say that my learned friends tried to tell us that

20 Colonel Mrksic was actually a person who was asked about everything. As

21 a commander, he was supposed to be asked about most things. However, the

22 evidence does not show this, and this is what we say in our response to

23 the appeal, and that is that he received the representatives of the EC

24 Monitoring Mission because Witness Kipper shows that it was only for a

25 few minutes that he received even Cyrus Vance. It was a question of

Page 112

1 protocol, just receiving him for a courtesy call for a few moments, and

2 that basically it was Colonel Pavkovic and the officers from the 1st

3 Military District that were in charge of this.

4 As for Vujic, Tomic, and Kijanovic, it was not established in the

5 evidence that they asked Mrksic for some kind of reinforcement with

6 regard to Velepromet. I think that the fact that Witness Jaksic came to

7 Mrksic at the request of the minister of justice does not lead us to

8 infer that Mrksic was a person who was asked about POWs. That is what my

9 learned friends are trying to suggest. Rather, it was a consequence of

10 the fact that the government of Eastern Slavonia, Baranja, and Western

11 Srem, on the 20th of November, 1991, came to Vukovar for the first time

12 ever since the war conflicts had broken out and that they were not aware

13 of the situation on the ground at all, and they did not know who was in

14 charge of what.

15 Further on, the essence of the problem was, when we look at the

16 trial judgement, is the timing, the time-frame that the Trial Chamber

17 tried to fit into the witness statements of those witnesses who they

18 trusted. If this was not confirmed by material evidence and the

19 statements of other witnesses or with the fact that Mile Mrksic between

20 7.00 and 8.00 p.m. on the 20th of November went to Belgrade, they needed

21 to deal with the time-frame in the following way: They moved the

22 government session to an earlier point in time, although we have 268-269,

23 that's the exhibit number of the video footage showing that the session

24 could not have started before 2.00 p.m., and the judgement says that it

25 started between 10.00 and 11.00 a.m. Also, the buses could not have been

Page 113

1 in the yard of the barracks while the session was still on because they

2 were already in Ovcara by 1.30, and the session started only at 2.00 p.m.

3 Then, also, there is a move in terms of time when the briefing

4 started. Trifunovic claims that it started at 5.00 p.m., and he's the

5 chief operations officer of the Command, and that time is moved to 1800

6 hours, whereas 1800 hours is actually the time when reports are sent to

7 the higher command. This is done in order to move time ahead and to

8 establish that Mile Mrksic could have issued an order to have the

9 military police withdrawn before he went to Belgrade.

10 Finally, perhaps a crucial matter in this entire judgement is the

11 withdrawal of the military police, which according to the operations

12 diary of the 80th Brigade took place at 2235 hours; that is to say that

13 this particular point in time was confirmed by the Chief of Staff of the

14 80th Motorised Brigade, and he is in charge of the accuracy of the

15 documents of the unit. If this is correct, and it is correct, then the

16 Trial Chamber made the wrong conclusion when they concluded that the

17 withdrawal took place by 2100 hours. Then that would have been reflected

18 in terms of the fact that that kind of order for withdrawal could have

19 come only half an hour earlier, and by then Mile Mrksic had been in

20 Belgrade for quite a while. Therefore, he could not have issued this

21 kind of order.

22 This also has to do with the assertion made by my learned

23 colleagues in relation to Captain Karanfilov. We heard their explanation

24 today in terms of who's telling the truth, he or the witnesses from the

25 80th Brigade. However, even today, I did not hear and I did not find in

Page 114

1 the judgement any proof indicating that Karanfilov was in Negoslavci at

2 the time when the Trial Chamber found that allegedly Mile Mrksic issued

3 an order on the withdrawal of the military police. The Trial Chamber

4 does not give an explanation to that effect, and it does not explain how

5 this kind of conclusion is supported. Therefore, I believe that this

6 conclusion cannot be beyond a reasonable doubt, and I don't think that

7 any reasonable trier of fact could conclude that Captain Karanfilov

8 received the order precisely in Negoslavci, and precisely from

9 Mile Mrksic, and precisely at the Command of Operations Group South.

10 Quite simply, there is not a shred of evidence attesting to that.

11 This conclusion is actually amplified by what my learned friends

12 said in their response to the appeal. If you recall, they said that this

13 order, as established by the Trial Chamber in the judgement, is an

14 unusual chain of command rather than the regular chain of command and

15 that something that happened there was a situation that was out of the

16 ordinary. In order for a reasonable trier of fact to make a conclusion

17 beyond any reasonable doubt, there would have to be proof justifying this

18 unusual conclusion, that is to say, one that deviates from the rule, from

19 everyday practice.

20 We have an unusual situation here, and there is not a shred of

21 evidence to the effect that this had actually happened. That is the main

22 problem with regard to this judgement. So it would have been normal for

23 orders to be issued down the chain of command, or if it involves security

24 organs, to go down the security line. Here, the Trial Chamber finds that

25 the commander, through the security officer, issued an order. There is

Page 115

1 no evidence to prove that, and, on the other hand, there are no evident

2 reasons why such a thing might occur.

3 My learned friends also stated that within the scope of his

4 activities, the security organs also engaged in counter-intelligence

5 work, the detection of crimes and criminals, but not the transport and

6 security of prisoners of war. I must draw the Appeal Chamber's decision

7 to paragraphs 124 and 127 of the appeal, where a part of a telephone

8 conversation is paraphrased. This conversation took place between

9 Mr. Sljivancanin and Tumanov -- or, rather, General Vasiljevic, and here

10 Tumanov says:

11 [In English] "You know routine, send them to Sremska Mitrovica

12 for interrogation, and that was the end of the conversation."

13 [Interpretation] Commenting on the conversation with

14 General Vasiljevic:

15 [In English] "We briefly discussed the telegram, as well, that I

16 received from him. I said that without any interview, We shall send also

17 suspects to the prison in Sremska Mitrovica, and that there were organs

18 there that would further investigate these persons."

19 [Interpretation] So the movement of these persons is clearly

20 agreed upon along the security line.

21 Another attempt by my learned friends was evident today to

22 present Mile Mrksic as the only person who might issue such an order,

23 thus supporting the decision reached by the Trial Chamber, and that

24 attempt consisted in their saying that the unit he commanded was a unit

25 established as such units should be established and not a chaotic unit.

Page 116

1 Orders are not issued to well-organised units in unusual ways as

2 seems to have been the case here. We cannot consider a unit to be

3 orderly when we wish to consider it to be orderly and to be disorderly

4 when it serves our purpose to be viewed as chaotic.

5 As regards the situation, I think it is clear to everyone here

6 that there were many representatives of the highest military organs

7 present at Ovcara, both security and others, and I really think that the

8 conclusion we presented in our oral arguments, that it would have been

9 impossible for Mile Mrksic to issue an order which would then remain a

10 secret to all for such a long time, especially as we heard before the

11 Chamber that the security organs on that same night -- the night sent to

12 [indiscernible] Colonel Petkovic and Babic and later to

13 General Aleksandar Vasiljevic information about this. So it is

14 impossible to believe the conclusion of the Trial Chamber that the

15 brigade commander could ensure such secrecy concerning the event which

16 followed.

17 To this day, we do not know when this order was issued because

18 it's neither in the judgement, nor have my learned friends been able to

19 tell us this today. The Chamber left open two options before or after

20 the briefing because it also left open Mrksic's departure for Belgrade.

21 However, my colleague explained today why it was impossible for such an

22 order to be issued either before or after the briefing. If it has been

23 established beyond reasonable doubt and if it is the result of

24 testimonies of officers of the 80th Brigade, why, then, did

25 Lieutenant-Colonel Vojnovic come to Operations Group South if his units

Page 117

1 had been ordered to withdraw from Ovcara? And this is stated by Witness

2 Trifunovic, a Prosecution witness.

3 So to conclude, I believe that there is not a shred of evidence

4 to show that Mile Mrksic issued the order on the withdrawal of the

5 military police of the 80th Brigade from the Ovcara Farm either to

6 Captain Karanfilov or to Lieutenant-Colonel Vojnovic, and I therefore

7 submit that his guilt in -- that his culpability has not been established

8 beyond reasonable doubt.

9 Thank you, Your Honours.

10 JUDGE MERON: Thank you, and thank you for completing your

11 presentation on time. We appreciate that, and we will now move on to the

12 appeal of Mr. Sljivancanin. Will that be Mr. Lukic, Mr. Bourgon?

13 Mr. Lukic.

14 I apologise. My distinguished colleague Judge Guney has a

15 question. You will have to wait.

16 JUDGE GUNEY: Counsel, you alleged that the Chamber concluded

17 that the order for withdrawal just before -- or just after the regular

18 daily briefing in Ovcara, so Mrksic's argument failed to show why no

19 reasonable trier of fact could have reached this same conclusion. Could

20 you develop on that?

21 MR. VASIC: [Interpretation] Your Honours --

22 JUDGE GUNEY: In addition, of course, Vukasinovic twice informed

23 Mrksic about the events of Ovcara, and the other inform of Vukasinovic at

24 Ovcara on 20 November 1991. So if you can develop on that as a whole.

25 Thank you.

Page 118

1 MR. VASIC: [Interpretation] Thank you very much.

2 The Trial Chamber established the alternative, that Mile Mrksic

3 issued the order on the withdrawal of the military police either before

4 or after the regular briefing. Before the regular briefing, he would

5 have issued this order to Captain Karanfilov, but he could not have done

6 so before the regular briefing because at the briefing itself, had such

7 an order been issued, it would have been mentioned. Mile Mrksic would

8 have reported this. He would have said that his unit was supposed to

9 withdraw from Ovcara, and there would have been no logic in him doing it

10 through the security officer when he would have the commander of the unit

11 with him at the meeting and he could have issued the order in the regular

12 way. None of the numerous witnesses who attended that briefing said that

13 that was the topic or a topic discussed at the briefing.

14 Furthermore, none of the witnesses say that Lieutenant-Colonel

15 Vojnovic informed Colonel Mrksic about the critical situation at Ovcara.

16 Witnesses Trifunovic, Gluscevic, Panic, say nothing about what Vojnovic

17 said to Mrksic at that meeting. Vojnovic himself up to 1998 never said

18 he said anything to Mrksic concerning the events at Ovcara.

19 After the briefing, it would not have been possible for this

20 order to be issued because Witnesses Gluscevic, Sljivancanin, and Coric

21 concluded a series of meetings that Mrksic had in the Command before

22 leaving for Belgrade, driven by Colonel Coric, in front of the -- who was

23 waiting for him in front of the building, so he had no opportunity to

24 issue the order to Captain Karanfilov. He had no time to see

25 Lieutenant-Colonel Vojnovic, either, after the briefing because -- and

Page 119

1 the Defence submits that they did not meet as Lieutenant-Colonel Vojnovic

2 himself said up to 1998. After the conversation with Vukosavljevic, as

3 we heard today from my colleague, he heard that Vukosavljevic had

4 allegedly been at Negoslavci, and as he believed Vukosavljevic, he

5 accepted this story that they had been there together. This story, in

6 fact, in the view of the Defence is evidence which cannot be accepted

7 beyond reasonable doubt and which is contradictory to other evidence

8 which the Trial Chamber accepted in the alternative. They accepted that

9 Mrksic may have left Belgrade between 1900 and 2000 hours.

10 As regards the activity concerning the security at Ovcara, that

11 was the command of the -- the town command of the 80th Motorised Brigade,

12 and they were supposed to provide security, and Mrksic resubordinated

13 more than a thousand soldiers to that unit. But from the operations log

14 of the Motorised Brigade, Exhibit 371, we see that there is an order on

15 reinforcing that unit, and between 1700 and 1800 hours Mrksic called the

16 office of the motorised APCs, and he ordered that this unit be given to

17 Lieutenant-Colonel Vojnovic and to be at his disposal if needed.

18 I don't know if I have answered your question.

19 JUDGE GUNEY: [Interpretation] Thank you very much.

20 JUDGE MERON: Thank you, Judge Guney.

21 We shall now move back to Mr. Lukic.

22 MS. BRADY: Excuse me, Your Honour.

23 Before Mr. Lukic starts his submissions for the Sljivancanin

24 appeal, with your indulgence, if I could ask you to give us a couple of

25 minutes while Mr. Wood, Ms. Lewis, and Mr. Rogers leave the courtroom,

Page 120

1 and in fact, new counsel are coming in in relation to the Sljivancanin

2 appeal: Ms. Carey, Mr. Dalal, and Ms. Nabti.

3 JUDGE MERON: Yes, we will wait.

4 MS. BRADY: Thank you.

5 MR. LUKIC: [Interpretation] [No interpretation]

6 JUDGE MERON: No, no, just one second. I believe Ms. Brady wants

7 her new team to be present.

8 MS. BRADY: That would be helpful, Your Honour.

9 JUDGE MERON: The new cast is present, I take it.

10 MS. BRADY: They're all here and accounted for, Your Honour.

11 JUDGE MERON: Thank you.

12 Mr. Lukic.

13 MR. LUKIC: [Interpretation] I just wanted to use the break to

14 introduce another member, and we have Marie Claude Fournier joining us

15 for this second part of the hearing.

16 Before I begin, I just want to say that it is our idea for me to

17 talk about the introductory part, and I'm also going to discuss the first

18 ground of the indictment, and then Mr. Bourgon is going to provide his

19 arguments for the other counts of the indictment and also respond to

20 certain questions that you have put and to tell you that the response to

21 issue number 3 that you put earlier to the Prosecutor, we will also be

22 leaving for Friday because it's logical then that that be part of the

23 themes that we will be discussing on Friday.

24 Your Honours, the Defence of Mr. Sljivancanin at the very

25 beginning would like to emphasise its position. The Trial Chamber

Page 121

1 judgement, in relation to the findings on the basis of which his criminal

2 responsibility was established, is based on important errors which have

3 brought us to a miscarriage of justice. In our appeal, we would like to

4 show that the only possible decision which can come out of that is an

5 exonerating sentence, or an acquittal, or a retrial. We would like to

6 point out the most significant positions to indicate, also, the way of

7 the -- the best and the easiest way to understand the position of the

8 Defence, and we would like to leave no matters that are unclear or any

9 dilemmas after our discussion.

10 The Defence of Mr. Sljivancanin, from the beginning of the trial,

11 was not a passive part and did not wait for the Prosecution on whom lies

12 the burden of evidence, and we did not wait for them to present their

13 case and make all the assertions. The Defence understood this trial as

14 the way to reach the full truth of Ovcara -- about Ovcara and not a trial

15 about the counts in the indictment.

16 By carefully analysing the judgement, we have established that

17 the Trial Chamber established key facts on events at Ovcara on the basis

18 of the presentation of evidence of the Defence of Veselin Sljivancanin,

19 and in many parts of its judgement it affirmed the positions of his

20 defence.

21 Can you please see how much the Prosecutor refers to today to the

22 testimony of Witness Panic, even though the Prosecution and Mr. Mrksic's

23 Defence did not actually call him as a witness, even though he was on

24 their list, and who happened to testify on behalf of Sljivancanin.

25 From the beginning of the trial, we emphasised that we believed

Page 122

1 that the key moment of that entire tragic 20th of November, 1991, was the

2 government meeting of the SAO Krajina, and after that the change of the

3 evacuation plan of the prisoners of war instead of taking them to the

4 prison in Mitrovica, to take them to Ovcara, and this is the point from

5 which everything else proceeded in the wrong direction or it all went

6 downhill.

7 Another key event, according to the judgement, is the decision to

8 withdraw the security detail from Ovcara. This decision had as its

9 direct consequence the unimpeded access to the prisoners by members of

10 the TO and the paramilitaries, which, as the Court established, led to

11 their killing. The participation of Sljivancanin in these events did not

12 exist in any form. His defence in relation to these facts was consistent

13 and clear.

14 Your Honours, Sljivancanin decided to sit in the witness chair

15 right at the beginning of his defence, and he was directly cross-examined

16 for 16 hours both by the OTP and by Mr. Mrksic's Defence team. In many

17 parts of his testimony, the Trial Chamber relied on his testimony and

18 based its findings on that testimony. However, some parts of his

19 testimony and his defence were not accepted by the Trial Chamber. This

20 refers to the assignment and the role he had in the hospital evacuation

21 operation, but as it will turn out in the end in the judgement, also on

22 the fact which became key in terms of his responsibility and his

23 testimony that he was not at Ovcara at any point on that day, the 20th of

24 November, 1991.

25 Your Honours, Veselin Sljivancanin was not at Ovcara or in the

Page 123

1 barracks on the 20th of November, 1991. We assert this, and we did so

2 from the very first beginning of the presentation of our case. This was

3 stated in our pre-trial brief, in our opening statement, and that was

4 also our theory or thesis throughout the whole presentation of evidence

5 during trial.

6 When you carefully review our appeals from the first ground of

7 our appeal, it will not be necessary, Your Honours, to analyse more,

8 either Sljivancanin's appeal or the position of the Prosecution in terms

9 or in respect of his responsibility.

10 The Sljivancanin Defence is aware of the practice of

11 Appeals Chambers, which is very restrictive in re-evaluating the

12 established factual matters from the actual trial, giving precedence to

13 the Trial Chamber in its assessment of evidence. But when these

14 conclusions do not satisfy the standard "beyond any reasonable doubt,"

15 then they inevitably lead to a miscarriage of justice. So in its written

16 arguments, and we are going to present a part of that orally today, the

17 Defence showed that the Trial Chamber committed errors when it concluded

18 that Sljivancanin was at Ovcara on the 20th of November, that he could

19 have seen the beatings of the prisoners, and that he was aware of prior

20 criminal conduct by members of the TO, and that it was his duty to

21 prevent further assaults or attacks on the prisoners.

22 After these errors in their factual conclusions, the Trial

23 Chamber reached erroneous legal findings that by his omission to act, he

24 significantly contributed to further crimes of torture in the afternoon

25 of the 20th of November, 1991. All the facts on the basis of which the

Page 124

1 Trial Chamber established the responsibility of Mr. Sljivancanin can only

2 all together lead to the conclusion of his responsibility as established

3 by the Trial Chamber. If the Appeals Chamber finds that the Trial

4 Chamber erred in any factual conclusion on which it relies on for

5 Sljivancanin's conviction, that inevitably must lead to acquittal.

6 In case the Appeals Chamber establishes that the appellant was

7 not aware of charges for aiding and abetting by his omission to act and

8 that such a form of criminal liability does exist and which we assert

9 that the Prosecutor articulated only in his final brief, only a new trial

10 with a very precise indictment could be in the interests of justice.

11 And, finally, at the end of this introduction, just a few more

12 words about the assertions from Mr. Mrksic's appeal.

13 The Sljivancanin Defence spent a long time considering whether it

14 should address the Appeals Chamber with a request that it was responding

15 to this appeal. The thesis of Mr. Mrksic's Defence to a considerable

16 degree is based on the responsibility of Mr. Sljivancanin, and we did

17 provide arguments in our final brief about that particular theory of

18 Mrksic's defence because that was the first time we encountered it in

19 their final brief. This theory that is articulated in their final brief

20 and is being repeated throughout their appeals brief is based on their

21 own evaluation of evidence and by referring to some theories which were

22 not articulated in the course of the trial itself and were not

23 substantiated by evidence. The Trial Chamber or the Appeals Chamber

24 reaches decisions on the basis of their own assessment and not on the

25 basis of somebody else's interpretation of the evidence. This is our

Page 125

1 only comment.

2 Now I'm going to move to arguments that relate to Ground 1 of our

3 appeal.

4 The presence of Sljivancanin at Ovcara, as this was established

5 in the judgement, has become a fundamental question of fact in terms of

6 establishing his responsibility. In the event that the Trial Chamber did

7 not conclude that he was in front of the hangar at that time, it would

8 not have established the existence of his criminal responsibility. The

9 Trial Chamber exclusively on the basis of the testimony of one witness,

10 P-009, established that Sljivancanin was at Ovcara on the 20th of

11 November, 1991. When a certain fact which in many aspects is crucial for

12 the establishment of possible responsibility of the accused can be

13 established by the Trial Chamber from the testimony of only one witness,

14 the Court must approach that task with particular caution, especially if

15 that evidence contradicts a large number of other evidence on the same

16 fact.

17 The Trial Chamber in the judgement referred to some standards for

18 which it said that it applied in the assessment of those key facts, and

19 these are paragraphs 11 to 16 of the judgement. The essence is that in

20 view of the contradictory facts, motives, and a large passage of time

21 from those events, the Trial Chamber approached its evaluation of

22 evidence with particular care. The strategy of the Defence in disputing

23 this assertion from the indictment was clear: to ask each, I underscore,

24 each and every witness who testified that he was at Ovcara at the same

25 time and at the same place as asserted by P-009 was to ask whether he saw

Page 126

1 Sljivancanin there. According to the understanding of the Defence, if

2 this simple analysis is applied to such an important question in the

3 judgement, the question which presents the crux of possible criminal

4 responsibility, precise arguments must be provided. No reasonable trier

5 of fact can be left in a dilemma about the possibility of the existence

6 of a different conclusion.

7 The Trial Chamber as cited in the appeals brief in reference to

8 this conclusion, the presence of Sljivancanin at Ovcara, committed

9 important errors. Among them, they are: One, did not compare the

10 testimony of Witness P-009 with testimony of other witnesses who

11 testified contrary on this particular matter, that they did not see

12 Sljivancanin at Ovcara. In reference to the group of witnesses who were

13 prisoners from the bus, the Trial Chamber in paragraph 382 refers to only

14 two who did not see Sljivancanin. Besides these two, at the trial P-031,

15 P-011, Cakalic, Karlovic, and Dodaj said the identical things during the

16 trial. Dodaj, P-011 -- yes, I mentioned that, and Dodaj. And we are

17 going to provide some explanations in reference to Dodaj.

18 Two, the Trial Chamber erred by mentioning in the judgement

19 erroneous conclusions about the reasons why they did not accept evidence

20 from other witnesses who claimed the opposite and which the Trial Chamber

21 analysed. We referred to this in our appeal in paragraphs 155 to 169.

22 Three, erroneously evaluating evidence that relates to the

23 circumstances in which Witness P-009 allegedly previously saw

24 Sljivancanin, which constituted the basis of recognising him in the first

25 place. We refer to this in paragraphs 83 to 117 of our appeal brief.

Page 127

1 Further, by stating contradictory conclusions, the Trial Chamber

2 erred because in reference to the key fact, Sljivancanin's presence at

3 Ovcara, after evaluating the evidence, it relied on two witnesses who

4 actually speak completely opposite things about that fact, and we refer

5 to this in our paragraphs 63 to 81, and then also erred by not

6 considering the inconsistencies in the testimony of P-009 with other

7 conclusions of the Trial Chamber and his motives to conceal the facts,

8 and these are our paragraphs 131 and 145. And the Trial Chamber also did

9 not pay attention to their own relevant conclusions about the presence of

10 Sljivancanin in that period in the hospital, and these are paragraphs 147

11 to 145 of our appeal. This erroneous approach and erroneous evaluation

12 of the evidence led to conclusions that no reasonable trier of facts

13 would reach, especially not as the only possible conclusion. Some of

14 these errors we are going to dwell on in more detail now.

15 By relying on the evidence of Witness P-009, the Court

16 established that P-009 saw Sljivancanin at Ovcara at around 1430 or 1500

17 hours on the 20th of November. Witness P-009, in the findings of the

18 Trial Chamber previously, stood in front of the hangar, observed the

19 beating, and then went behind the hangar, returned some 15 to 20 minutes

20 later, and then saw Sljivancanin passed by him and entered the hangar.

21 According to him, at that point in time the prisoners were already inside

22 the hangar. This is paragraph 377 of the judgement.

23 The location and the timing that the Court concluded, on the

24 basis of this testimony, are quite precise.

25 In its further analysis of the reliability of the testimony of

Page 128

1 this witness, the Trial Chamber had a clear and responsible task: to

2 compare that evidence with other evidence, primarily with statements of

3 other witnesses who asserted that they did not see Sljivancanin there.

4 Probably, any witness, including P-009, is something about which the

5 Trial Chamber had to ask itself the following question: Was the witness

6 in a position to observe the area in front of him? Was he convincing?

7 Did he have any reason to be insincere, and what can be reliably

8 established on the basis of the testimony of each particular witness?

9 A considerable number of witnesses on which the Court relied

10 about facts surrounding the hangar at the time that P-009 refers to was

11 so convincing for the Trial Chamber that on the basis of their testimony,

12 they established facts. They were, thus, credible. Besides describing

13 what they saw happen, in which the Court relied on their testimony and

14 the Court trusted them, they also said that they did not see Sljivancanin

15 at that time.

16 The Trial Chamber also reaches a contradictory conclusion in its

17 conclusion in paragraph 382, when it says that Witnesses Berghofer and

18 P-030 in view of the circumstances were unable to observe all the

19 officers in front of the hangar, and thus, they reach a conclusion which

20 is contradictory to their other conclusions. The Court trusted these

21 same witnesses in its conclusions when it -- when they described who

22 participated in the beatings; paragraphs 938, 939, 932, and 931.

23 The Prosecution's assertion in its response --

24 JUDGE MERON: My distinguished colleague Judge Guney has a

25 question.

Page 129

1 JUDGE GUNEY: Counsel, you -- [microphone not activated]

2 I repeat. You argue that only the willful failure to discharge a

3 duty which imply the culpable intent of the accused can lead to the

4 individual criminal responsibility. If you maintain this view, I would

5 like to know, what is your position vis-a-vis the multiple jurisprudence

6 and development which based on the commission by omission? So I would

7 like to know, what is your position on the commission by omission

8 vis-a-vis the development and multiple jurisprudence?

9 Thank you.

10 MR. LUKIC: [Interpretation] Your Honour, Mr. Bourgon is prepared

11 to deal with this topic in detail, so I would like to leave the answer to

12 your question to him. If you are not satisfied with his explanation, we

13 can supplement our explanations later on.

14 JUDGE GUNEY: Okay. [Interpretation] Okay.

15 MR. LUKIC: [Interpretation] Thank you, Your Honour.

16 The assertion by the Prosecution in its response that the

17 prisoners in the bus were afraid and thus focusing on their survival

18 cannot be the basis for accepting their testimonies when other relevant

19 facts are established based on the testimonies of these same persons who

20 described in details officers, their ranks, and their uniforms.

21 When Sljivancanin's Defence got the reply from all the people who

22 were on the bus that they did not see Sljivancanin at Ovcara, the

23 Prosecution did not ask any of them in redirect about what is now being

24 asserted in the appeal. They want to avoid it being stressed that these

25 witnesses were in such a situation that they were unable to observe

Page 130

1 everything that was in front of the hangar.

2 Did these witnesses have any reason to conceal Sljivancanin's

3 presence at the hangar? No. They testified in great detail to

4 Sljivancanin's appearance and his physical description when he was in

5 front of the hospital, and they did not conceal their animosity and their

6 hostility towards him.

7 The Trial Chamber did not obtain an answer from the witnesses to

8 the effect that they were unable to observe the area in front of them, so

9 all this is based on supposition, not on evidence, and this constitutes

10 an error.

11 Another group of witnesses who did not see Sljivancanin in front

12 of the hangar at that time are three JNA officers: two Prosecution

13 witnesses, P-014 and Lieutenant-Colonel Vojnovic, and also

14 Lieutenant-Colonel Panic. The Trial Chamber gave its reasons why it's

15 possible that these witnesses did not see him. These are paragraphs 378,

16 381, and 380. But the Trial Chamber made an error here when explaining

17 why the testimonies of Colonel Panic and P-014 do not cast doubt on the

18 testimony of Witness P-009. The reasons for their rejecting their

19 testimony about this fact contradict other conclusions reached by the

20 Trial Chamber on the presence of these witnesses at Ovcara at the same

21 time.

22 In another paragraph of the judgement, paragraph 309, the Trial

23 Chamber states that Vojnovic and Panic were talking in front of the

24 hangar and that they were seen doing so by P-014; paragraph 254. If the

25 Court relied on Witness P-014 and believed that he was there while the

Page 131

1 beatings before the hangar were going on and he left while the beatings

2 were still going on, it could have reached only the following conclusion,

3 that Colonel Panic arrived while the process of bringing the prisoners

4 into the hangar was still ongoing, and then the other conclusion cannot

5 be sustained, the one from paragraph 380, that Panic didn't see

6 Sljivancanin because he arrived later on.

7 On the other hand, if the Trial Chamber established that P-014

8 saw Panic and then believed Panic that he arrived when the process of

9 taking the prisoners into the hangar was already finished, as they did in

10 paragraph 258, then Witness P-014 was at Ovcara even after the prisoners

11 were taken into the hangar. Then the reason from paragraph 381 as to why

12 the Court did not give credence to Witness P-014 cannot be sustained, and

13 we gave a detailed explanation of this in paragraph 36 of our response.

14 I do understand that this is rather complex.

15 The issue of the credibility of these witnesses has to be

16 evaluated. Vojnovic and P-014 and Witness Panic, the first two being

17 Prosecution witnesses, did they have any reasons to be partial?

18 Certainly not. None of them could have a motive for concealing the fact

19 if Sljivancanin had really been there. In fact, they would have welcomed

20 that. If possible, they, in a situation where they were discussing the

21 security of prisoners of war in the area, would it have been possible for

22 them not to notice a person such as Sljivancanin? No reasonable trier of

23 fact could reach the conclusion reached by the Trial Chamber.

24 And, finally, an error which completely brings into question the

25 conclusion regarding the reliability of the testimony of Witness P-9 is

Page 132

1 the testimony of Witness Dodaj Hajdar, the evaluation of that testimony

2 and the failure to compare that testimony with the claims of P-009.

3 Witness Dodaj, a Prosecution witness, a prisoner from the bus, according

4 to paragraph 236 of the judgement, left the bus before last, did not go

5 into the hangar, and stood there in front of the hangar with another

6 three prisoners who had been separated off and several JNA officers. The

7 Court mentions two lieutenant-colonels and one captain. In paragraph 70

8 to 74 and paragraph 129 of the appeal, we provide detailed references to

9 his testimony, which we feel are very important and to which the Trial

10 Chamber also refers.

11 Dodaj states that he, as he stated in his testimony, stood there

12 observing the beatings and the other events and the people in front of

13 the hangar for one or two hours, and he responded when asked directly

14 that he did not see Sljivancanin at Ovcara. Before that, he observed him

15 for more than half an hour from very close by in the hospital, and in

16 relation to his testimony about that fact, that he did not see

17 Sljivancanin at Ovcara, the Trial Chamber gives credence to that

18 testimony saying that it is persuasive in paragraph 386.

19 So, Your Honours, we have two testimonies about the same fact

20 occurring at the same time in the same place. One witness claims to have

21 seen Sljivancanin at Ovcara - that's P-009 - and the Court gives him

22 credence in that, and the other one who says he did not see

23 Sljivancanin - Witness Dodaj - but the Court believes this witness also.

24 The Prosecution is trying to mitigate this error made by the Trial

25 Chamber by arguing that Dodaj was afraid and was thus unable to observe

Page 133

1 properly the area in front of him. However, the Court has established

2 that this witness was convincing and that he did not see Sljivancanin.

3 The Prosecution could have asked Dodaj whether he was in such a state

4 that he was unable to fully observe the area in front of him, but the

5 Prosecutor did not ask him that question, him or any other witness, for

6 that matter.

7 In spite of his fear, the Court believed Dodaj and considered his

8 testimony to be persuasive. The Prosecutor has no arguments to argue

9 that this is an error made by the Trial Chamber, and then the Trial

10 Chamber erred in not comparing two persuasive testimonies which it had

11 before it. When it had before it two such testimonies, both of them

12 persuasive, the Trial Chamber should not have left this hanging in the

13 air. The Trial Chamber did not explain on what it based its conviction

14 that Witness P-009 was persuasive, in spite of the fact that it's so

15 contradictory to the other findings of the Trial Chamber.

16 Witness P-009 claims that he passed by Sljivancanin and entered

17 the hangar and that there were no other people there, either soldiers or

18 officers, in the area in front of the hangar. Contrary to this, the

19 Trial Chamber established that when the prisoners were leaving the bus

20 and immediately after they entered the hangar, both Vojnovic and Panic

21 and two lieutenant-colonels who questioned Dodaj and his group were

22 there; Vojnovic and Panic, according to paragraph 258, and the two

23 lieutenant-colonels in paragraph 236. P-009 completely contradicts the

24 finding of the Chamber that he did not see the beatings in the hangar

25 when he went in. He entered the hangar almost immediately after the POWs

Page 135

1 (redacted)

2 [Open session]

3 THE REGISTRAR: We are back in open session, Your Honours.

4 JUDGE MERON: Thank you, Registrar.

5 We are in open session. Please proceed.

6 MR. LUKIC: [Interpretation] This witness, who was at Ovcara as a

7 member of the TO and before that in the barracks at Velepromet on the

8 19th of November and everywhere, he was seen with weapons, recognised by

9 witnesses, did he have an answer to be partial? Any reasonable trier of

10 fact can only give an affirmative answer to this. So the testimony of

11 this witness should have been treated with special caution, and he was

12 the only witness who claimed that Sljivancanin had been in the barracks

13 on that day. The witness should have been [as interpreted] asked whether

14 he saw Sljivancanin on that day. But regardless of the fact that all

15 these witnesses are Prosecution witnesses, they had a hostile attitude

16 towards Sljivancanin considering him to be the person who separated them

17 off at the hospital, they were all very precise in their statements.

18 A correction to the transcript, pages -- page 25, they were

19 asked: The witnesses were asked whether they had seen Sljivancanin on

20 that day.

21 In paragraph 369, the Trial Chamber analyses the testimonies of

22 only three of these witnesses. Apart from these three witnesses, all the

23 other witnesses from the bus, another six witnesses, said they hadn't

24 seen Sljivancanin at the barracks, but the Trial Chamber does not mention

25 them. These were all Prosecution witnesses, and we refer to them in

Page 136

1 paragraphs 98 --

2 THE INTERPRETER: 99, interpreter's correction.

3 MR. LUKIC: [Interpretation] -- and 88 of our appeal brief.

4 The Trial Chamber found that these witnesses were unable to

5 describe in detail all the events in front of the bus because of the

6 conditions in which they found themselves, but this again contradicts the

7 finding where such witnesses were given credence when establishing the

8 events concerning the bus; paragraphs 216 to 217 of the ...

9 At the barracks, just like at Ovcara, only P-009 did not see what

10 the Trial Chamber established from the testimony of all other witnesses,

11 a key event, and that was when the prisoners were being transferred to

12 the sixth bus. That was the only time when there was physical contact

13 and abuse of the prisoners, and this is on transcript page 6279.

14 The Prosecutor makes their analysis of evidence by asserting that

15 it's possible that P-009 arrived after these persons were moved to the

16 sixth bus and before the bus left in the direction of the hospital, but

17 there is a trap there because this collides with the conclusions of the

18 Trial Chamber, which found that 30 minutes after the arrival of the bus,

19 the TO members were taken away from the barracks, were removed from the

20 barracks. So how can P-009 then testify about so many events at the

21 barracks if he was only there for a few minutes? This is impossible. He

22 had to have been there much earlier, and then he could not have failed to

23 see when more than ten prisoners were beaten in the way that the Court

24 established in paragraph 217. Thus, the Court believed the witness which

25 was the only one to see Sljivancanin of all the witnesses who were there,

Page 137

1 when none of them saw them, and who was the only one who did not see the

2 beating at the barracks and at the hangar at Ovcara, which was something

3 that all the others did happen to see. Is that a witness on whose

4 testimony exclusively the Trial Chamber based its conclusion about the

5 responsibility of Sljivancanin?

6 If the key conclusion of the Trial Chamber in the judgement of

7 Sljivancanin is based on the testimony of only one witness, then the

8 Trial Chamber must prove the reliability and credibility of that

9 testimony. These two categories cannot be accepted a priori as arising

10 from what the Trial Chamber only said, that they believed somebody and

11 they did not believe someone else. If the conviction of the Trial

12 Chamber about the credibility and reliability of the testimony cannot be

13 checked and evaluated as being the only possible conclusion, then that

14 brings into question the need for an appeals proceedings in general.

15 Your Honours, we expect that you will, in the role of a

16 reasonable trier of facts, will in detail and comprehensively evaluate

17 the credibility and reliability of this testimony and evaluate the errors

18 committed by the Trial Chamber in establishing key facts on the basis of

19 his statement.

20 And, finally, the Trial Chamber makes one more mistake in which

21 the conclusion about Sljivancanin's presence in the barracks cannot be

22 believed as credible. If Sljivancanin was seen in that area of the

23 barracks and spent there all the time, as described by P-009, before the

24 sixth bus left for the hospital - paragraph 371 - how is it possible that

25 Sljivancanin waits for that bus at the hospital as was the testimony of

Page 138

1 witnesses from that bus - this is T-660, and these are Witnesses P-012,

2 487, Witness Wilhelm, and transcript 2826, Bucko - and question them?

3 Which reasonable trier of fact could conclude that Sljivancanin could

4 have been at Ovcara in front of the hangar at 14, 13, or 1500 hours if in

5 the judgement the Trial Chamber previously establishes that Sljivancanin

6 was at the hospital at the time of the departure of the convoy with the

7 civilians at 1400 or 1430 hours; paragraph 376. Even though the

8 Prosecutor responds to the Prosecution -- to the appeal, suggests that

9 this was a small distance that Sljivancanin could have covered within

10 that time-frame, the Trial Chamber established differently. According to

11 the Trial Chamber, the buses needed half an hour to go from the barracks

12 to Ovcara. These are paragraphs 222 and paragraph 234. From the

13 hospital where Sljivancanin happened to be between 1400 and 1430 hours,

14 as established by the Trial Chamber, this could have been a much longer

15 road, and we would like to ask you to look at Exhibit 156. This was a

16 map.

17 And I would like to conclude with the following: Your Honours,

18 the Trial Chamber in its evaluation of evidence, in reference to the

19 presence of Sljivancanin at Ovcara, committed a number of errors which

20 led to the conclusion that no reasonable trier of facts could reach, thus

21 resulting in a miscarriage of justice for which reasons we believe that

22 the judgement cannot stand.

23 Thank you very much. If there are no questions, my colleague

24 will cover our other grounds of appeal.

25 MR. BOURGON: Good afternoon, Mr. President. Good afternoon,

Page 139

1 Your Honours.

2 My name is Stephane Bourgon, and I will continue the presentation

3 of our arguments this afternoon on appeal from the judgement that was

4 rendered in this case.

5 It is my understanding that my colleague used up 44 minutes of

6 our time and that accordingly I have 46 minutes left. I will try to

7 speak for 30 and then take the break, and according with the new schedule

8 issued by the Presiding Judge at the beginning.

9 Mr. President, I will begin by saying a few words concerning our

10 submissions on omission liability, which is Ground 2 in the appellant's

11 brief. I will also answer question 4, which is found in the addendum to

12 the scheduling order for this appeal, and then I will move on to Grounds

13 3, 4 and 5.

14 Regarding omission liability, it is our submission as argued in

15 our brief that this specific form of omission liability as identified by

16 the Trial Chamber in the judgement does not exist. That is not to say,

17 Mr. President, even if we take into consideration the fact that before

18 the International Criminal Court the situation appears to be entirely

19 different, we are not saying that an accused cannot be found guilty for

20 an omission pursuant to the Statute of this Tribunal. Nonetheless, it is

21 important to note that the International Criminal Court paints an

22 entirely different position with respect to omission, and that tells us

23 that this is a very special and exceptional form of criminal liability

24 and that it is of the utmost importance when dealing with omission

25 liability to precisely identify the parameters of this type of liability

Page 140

1 before it can be applied to any situation.

2 In the Prosecutor versus Tadic, the Appeals Chamber has

3 recognised that a person may be found guilty for a culpable omission in

4 the presence of a positive duty to act if there was a deliberate failure

5 to fulfill this duty. This refers, Mr. President, to omission as a

6 principal perpetrator and not as an accomplice, and it requires the proof

7 that the accused shared the mens rea of the perpetrators. In other

8 words, it must be shown that the accused intended the consequences of the

9 crime being perpetrated or that he must have been aware of the

10 consequences and consented that they would occur.

11 Although the Trial Chamber in this case did refer in its

12 reasoning to the fact that Sljivancanin had a duty to act, it did not

13 find him guilty for a culpable omission as a principal perpetrator.

14 Another type of omission liability found or recognised in the

15 Statute of this Tribunal can be found, as we know, in Article 7(3), which

16 deals with the responsibility of commanders and other superiors.

17 Pursuant to this article, a commander can be found criminally responsible

18 for a violation committed by a subordinate over whom he exercises

19 effective control if he has reason to know or if he knows that this

20 subordinate is about to commit a crime or is committing a crime and he

21 fails to take the necessary and reasonable measures to prevent him from

22 doing so. When I talk about identifying the parameters of omission

23 liability, this is what I am referring to.

24 In the light of general principles of criminal law, this type of

25 omission liability, Mr. President, the command responsibility, is

Page 141

1 exceptional. Normally, a person can only be found guilty of a crime by

2 being involved in some way in the commission of that crime and, of

3 course, by having the necessary intent. If we look at Article 7(3) of

4 the Statute, the commander is not involved in the commission of the

5 crime, and it need not be shown that he shared the mens rea of the

6 perpetrator. Nonetheless, because responsible command is one of the

7 foundations of international humanitarian law and because if there is one

8 person who can prevent a crime committed by a subordinate, it is his

9 commander, for this reason, this exceptional type of liability is

10 accepted and recognised.

11 That being said, Mr. President, command responsibility is framed

12 very precisely with a view to avoiding any type of strict liability.

13 Firstly, it would have to be shown that there was a

14 superior-to-subordinate relationship which existed between the commander

15 and the perpetrator. Secondly, the commander, knowing that the

16 subordinate is about to commit a crime or is committing a crime, will

17 only be found guilty if he fails to take the necessary and reasonable

18 measures to prevent his subordinate from committing this crime. The

19 words "reasonable" and "necessary" are important here, and that is with a

20 view to avoiding what I mentioned earlier, strict liability.

21 It must be noted, finally, with respect to Article 7(3), that the

22 responsibility of the commander pursuant to this article focuses on

23 preventing a subordinate from committing a crime and not on preventing a

24 crime from being committed.

25 It is our submission, Mr. President, that these are the only two

Page 142

1 types of omission liability which are recognised pursuant to the Statute

2 of this Tribunal: a culpable omission as a principal perpetrator or

3 command responsibility pursuant to Article 7(3).

4 There is, of course, another type of responsibility, which

5 although it looks like omission liability, in fact, it is not, and this

6 is what has been referred to by the approving spectator or the bystander.

7 Indeed, if a person is present at the scene of the crime, and the mere

8 presence of that person provides encouragement or moral support to the

9 perpetrators of the crime, then it is accepted and it is recognised that

10 this person may be found guilty as an accomplice if the person knows that

11 his presence is indeed assisting the commission of the offence by

12 legitimising in the eyes of the perpetrator, which is very important, the

13 commission of the crime. This is not, Mr. President, in our submission,

14 omission liability because the presence of the accused in such a scenario

15 at the scene of the crime assisted the perpetrators. It had an effect on

16 the illegal acts of the perpetrators and contributed to the commission of

17 the crime.

18 A question was put to my colleague earlier concerning commission

19 by omission. This is exactly what we refer to. It looks like omission

20 liability, but it is not. It is commission by omission.

21 In our written pleadings, we referred to one author, but there

22 are many others, Michael Dutweiler. He explained the difference between

23 omission proper and commission by omission. For commission by omission,

24 it is necessary for the person to have a material ability to do

25 something, but by failing to do what the person has the material ability

Page 143

1 to do, he actually participates in the crime. Encouragement, providing

2 encouragement is exactly commission by omission.

3 For us, to have commission by omission, it has even to go further

4 than the normal criteria for aiding and abetting, although there are

5 different positions, we recognise, in the case law of this Tribunal and

6 that of the International Criminal Tribunal for Rwanda.

7 Mr. President, in this case the question is the duty of the

8 person. Is it relevant that the approving spectator had or did not have

9 a duty to prevent? What we are saying, Mr. President, that in such a

10 case it is not necessary for the approving spectator to have a duty to

11 prevent the subordinate from committing a crime or to commit [sic]

12 anybody from committing that crime. That is not to say that the duty

13 will not become a relevant consideration. The duty may be a relevant

14 consideration if the perpetrator, for example, is aware that the person

15 would normally stop him from committing the crime. Then it may be a

16 relevant consideration because in the eyes of the perpetrator, he will

17 say, This person has a duty to stop me, I know the person has a duty to

18 stop me, and the person is not stopping me; therefore, I can continue in

19 full impunity. However, the duty is not a prerequisite.

20 The difficulty in this case, Mr. President, is that the Trial

21 Chamber used a mix of culpable omission liability, of aiding and

22 abetting, as well as some notions of command responsibility. Indeed, the

23 Trial Chamber found that the accused had a duty to act, that he was

24 present on the scene, that he saw a crime and did not take action, that

25 the crime was not committed by his subordinates, and that the

Page 144

1 perpetrators did not see him and did not know him and were not encouraged

2 in any way by his presence.

3 In our submission, on the basis of these facts, the Trial Chamber

4 could not have found the accused guilty of any type of omission

5 liability, whether it be called culpable omission or aiding and abetting

6 by omission, and there was no -- any type of encouragement provided to

7 the perpetrators.

8 Does the Trial Chamber find the accused guilty pursuant to a form

9 of omission liability which, in our submission, does not exist? In fact,

10 it amounts to strict liability. Indeed, if the presence of Sljivancanin

11 did not provide encouragement or moral support, the fact that he had a

12 duty to protect the prisoners of war at Ovcara, if he did, and that

13 having seen the beatings, he did not take action, is not sufficient for

14 him to incur criminal liability, unless, of course, the culpable omission

15 be proven.

16 In this regard, the nature of the duty to protect prisoners of

17 war, which is not a duty which implies that prisoners will automatically

18 be safe if the duty is not fulfilled or is fulfilled, the nature of that

19 duty must be considered. The extent to which the duty was or was not

20 fulfilled must also be considered. In other words, if we accept that

21 type of omission liability, what about if the duty was partly fulfilled?

22 How do we analyse? We cannot under the model or under the mode of

23 liability identified by the Trial Chamber.

24 It cannot be, Mr. President, that a person having a duty to

25 protect, who fails to act pursuant to this duty, in all or in part, will

Page 145

1 be automatically -- or will automatically incur criminal responsibility.

2 There's another reason why this type of omission liability does

3 not exist. In fact, it would render Article 7(3) of the Statute

4 obsolete. In all cases where the commander had a duty to protect

5 prisoners of war, there would be no requirement to use Article 7(3), and

6 therefore, the Prosecutor will be dispensed from proving the

7 superior-to-subordinate relationship. If we accept what the Trial

8 Chamber used as a mode of liability - that means that for aiding and

9 abetting, the person has a duty to protect, the perpetrators were not the

10 subordinate of the accused, the person did not provide moral

11 encouragement to the perpetrators, but the person nonetheless failed to

12 take action - we cannot do away with Article 7(3) of the Statute,

13 considering its importance for international humanitarian law.

14 I now come to question 4 in the addendum to the scheduling order.

15 In this question, the Appeals Chamber requests the Defence to clarify the

16 following: If the Appeals Chamber recognises aiding and abetting by

17 omission in the specific form which was used by the Trial Chamber in this

18 case, and if the Appeals Chamber concludes it is a valid mode of

19 liability, then what is the extent to which - and the question is quite

20 precise - if at all the concrete influence and the decisive effect

21 criteria, which we advance in our written pleadings, are relevant to the

22 assessment of an actus reus of aiding and abetting by omission?

23 First, Mr. President, it should be mentioned that both criteria,

24 the decisive effect criteria and the elevate degree of concrete influence

25 criteria, were mentioned by -- the first one by the Trial Chamber in the

Page 146

1 Blaskic case, and then it was mentioned again by the Appeals Chamber, and

2 the second one, the elevated degree of concrete influence, by the

3 Appeals Chamber in the Oric case. In both instances, the Appeals Chamber

4 was discussing omission liability but did not pronounce and did not

5 identify the essential elements thereof, and the Appeals Chamber was

6 quite clear, leaving open the possibility that actus reus of aiding and

7 abetting could be fulfilled by an omission. That's the first

8 consideration.

9 Secondly, in our view, Mr. President, the Appeals Chamber -- if

10 the Appeals Chamber does recognise aiding and abetting by omission in the

11 specific form identified by the Trial Chamber in the judgement, then the

12 crux of the matter becomes the following question: Everything will lie

13 in the meaning to be given to rendering practical assistance, which has a

14 substantial effect on the perpetration of a crime, which as we know is

15 the applicable criteria for actus reus for aiding and abetting in the

16 case law of this Tribunal.

17 In this regard, it is our submission that the criteria, decisive

18 effect and the elevated degree of concrete influence, which of course we

19 took from decisions rendered by the Appeals Chamber, they are relevant in

20 that they are illustrations of the fact that the omission must have

21 assisted the perpetrators, it must have had an effect on the illegal acts

22 of the perpetrators, and it must have contributed substantially to the

23 commission of the crime.

24 We could describe omission liability or this link, this

25 relationship between the omission and the perpetrators in many ways.

Page 147

1 What we do know is that a cause-to-effect relationship is not required

2 and that the omission cannot be a precondition or, to use the words of

3 the Appeals Chamber, a condition precedent to the commission of the crime

4 as set out in -- it was in the Blaskic Appeals Chamber judgement. What

5 is important is that the assessment, whether the omission had a

6 substantial effect on the commission of the crime, it must be conducted

7 from -- by looking at the crime which was committed and not at the

8 omission itself. In other words, from the point of view of the

9 perpetrators, did the omission of the accused assist them or have an

10 effect on their illegal acts or contribute substantially to their

11 committing the crime?

12 Another way to look at this is that if the omission did not

13 change or alter the conduct of the perpetrators, then it cannot be said

14 to have had a decisive effect on the commission of the crime or a

15 concrete influence on the perpetrators. This, of course, requires a

16 careful fact-based inquiry because there may well be external factors to

17 the omission itself which will help in determining whether such omission

18 had or did not have a substantial effect on the commission of a crime.

19 As argued in our submissions related to Ground 5, which I will

20 come to in a minute, it is our submission that in this case, even if the

21 Appeals Chamber recognises aiding and abetting by omission as identified

22 by the Trial Chamber in this case, that even though Sljivancanin would

23 have been present and would have taken no action, this had no effect

24 whatsoever on the perpetrators in this case.

25 I now move to Ground number 3, which as you know, Mr. President,

Page 148

1 concerns the alleged error committed by the Trial Chamber in finding that

2 Sljivancanin had a legal duty to protect the prisoners of war held at

3 Ovcara.

4 It is our respectful submission in this regard that on 20

5 November 1991, Sljivancanin did not at any time have a legal duty to

6 protect the prisoners of war held at Ovcara. This ground of appeal,

7 which includes five sub-grounds and which is directly related to part of

8 the Prosecution's second ground of appeal, which will be argued on

9 Friday, we rely almost entirely on our written pleadings, which are quite

10 lengthy and detailed. Accordingly, my submissions today will be limited

11 to a few specific issues.

12 It is our submission that the duty to care for prisoners of war,

13 the origin of the duty comes from the Geneva Conventions, more

14 specifically, Geneva Convention 3, Articles 12 and 13. This

15 responsibility is imposed on states on the high-contracting parties. The

16 states have this responsibility, and the duty is triggered when they have

17 prisoners of war in their custody. States delegate this responsibility

18 to their agents. When a military unit holds prisoners of war in its

19 custody, the de jure agent of the state is the commander, in this case,

20 the OG South commander or the 80th Motorised Brigade commander when the

21 prisoners were in Ovcara.

22 Now, to fulfill this duty or responsibility, the commander uses

23 the resources at his disposal, including his officers, but the commander

24 cannot absolve himself of this responsibility or does not delegate this

25 legal duty by issuing tasks and orders. Accordingly, whatever order or

Page 149

1 task was given to Major Sljivancanin did not impose on him a duty or

2 responsibility which may give rise to his criminal responsibility any

3 more than any of the officers of Operational Group South involved in the

4 events related to the prisoners of war as a result of the measures taken

5 by Commander Mrksic for this purpose. Should the Appeals Chamber

6 conclude otherwise and hold that there was a specific duty imposed on

7 Sljivancanin on 20 November in relation to the prisoners of war at

8 Ovcara, because this is where the crimes were committed, then it is our

9 submission that this duty was at an end immediately after the meeting of

10 the SAO government where the plan was changed entirely. Whereas the

11 prisoners of war were supposed to go to Sremska Mitrovica, the plan was

12 changed, and Sljivancanin was kept out of the loop.

13 Sljivancanin was not involved in the transmission and the

14 implementation of the order to send the prisoners of war from the JNA

15 barracks to Ovcara. Had the Trial Chamber found that he was, we believe

16 that this finding cannot stand.

17 Firstly, the Trial Chamber found no direct evidence of the

18 involvement of Sljivancanin in the giving or implementation of this

19 order. Secondly, the Trial Chamber's conclusion in this regard - that

20 was at paragraph 659 of the judgement - rests on eight other findings

21 which it made, such as the presence of Sljivancanin at the barracks on

22 the morning of 20 November, and all of these findings, in our submission,

23 constitute either unreasonable inferences or were adopted on the basis of

24 circumstantial evidence having little or no probative value. In these

25 circumstances, it is our submission that the Trial Chamber's findings

Page 150

1 related to the involvement of Sljivancanin in the transmitting and the

2 implementation of the order to send the prisoners to Ovcara cannot stand.

3 Significantly, if Sljivancanin was not involved in the implementation of

4 this order, any duty he might have had at the time to protect the

5 prisoners of war was at an end.

6 Some of the findings that we have to look at in this regard

7 include the fact that when Sljivancanin directed the triage at the

8 hospital, he did not know that prisoners of war would be taken to Ovcara;

9 judgement 657. He did not know, either, about the meeting of the SAO

10 government, which is something he learned much later. The decision to

11 keep the buses at the JNA barracks waiting for the outcome of the meeting

12 of the SAO government was taken by Mrksic; judgement 300. The decision

13 to send MPs from the 80th Motorised Brigade at Ovcara to be ready to

14 secure the prisoners was also given by Mrksic through his command staff

15 with no involvement from Sljivancanin; judgement 305.

16 Veselin Sljivancanin, as demonstrated by my colleague, was not

17 present at the JNA barracks in the morning. Veselin Sljivancanin was not

18 present at Ovcara on 20 November. In these circumstances, it is our

19 submission that after the meeting of the SAO government, it terminated,

20 at the latest, Sljivancanin was excluded from the task related to the

21 prisoners of war. Veselin Sljivancanin completed his task related to the

22 evacuation of the civilians at the hospital, and we know from there where

23 he was on the basis of his testimony.

24 We know that Sljivancanin was not involved in any way with the

25 withdrawal order. The Trial Chamber judgement found that.

Page 151

1 I have one more sentence.

2 JUDGE MERON: Excuse me. You are slightly over time, and we have

3 to stop now for 15 minutes, and then you may continue.

4 MR. BOURGON: Thank you, Mr. President. I will stop. I had one

5 more sentence before breaking.

6 JUDGE MERON: Okay, let's have that.

7 MR. BOURGON: Simply to say that he did not have any duty

8 bestowed on him by Mrksic who handling and directing this undertaking of

9 OG South related to the prisoners of war addressed and was addressed by

10 other officers than Sljivancanin from that point on.

11 Thank you, Mr. President.

12 JUDGE MERON: We will now have a 15-minute break and then we will

13 resume [microphone not activated].

14 --- Recess taken at 3.50 p.m.

15 --- On resuming at 4.05 p.m.

16 JUDGE MERON: Please be seated.

17 Mr. Bourgon, I must tell you today I am troubled by your vision

18 of -- very formalistic vision of the 3rd Geneva Convention. I'm afraid

19 that if your suggestions were taken seriously, duties of states would be

20 greatly diluted.

21 You know the famous statement in the Nuremberg trials that states

22 acts through individuals, and if Sljivancanin was given certain

23 responsibilities for the evacuation and for caring for POWs, wouldn't his

24 duties continue under the 3rd Geneva Convention until he could hand those

25 duties over to someone else who could assume responsibility for the POWs?

Page 152

1 Can you abandon POWs at one point in time to a programme awaiting for

2 them outside? What happens when there is no formal delegation at all of

3 power on the part of the state, but there are POWs -- soldiers who

4 surrender to another unit? Under certain notions of the 3rd Geneva

5 Convention, that unit has to assume welfare and the responsibility for

6 those agents. I must say that I am very troubled by those implications,

7 what you are telling us about this possibility of bing, bang, ending

8 responsibility, just leaving them out to be murdered.

9 MR. BOURGON: Maybe I can clarify -- I appreciate your question,

10 Mr. President, and maybe I can clarify my position.

11 Prisoners of war cannot be abandoned at any time, so if this is

12 what comes out of what I said, then I apologise because this is not what

13 I meant at all.

14 What I meant, Mr. President, is that the duty to protect

15 prisoners of war, it belongs to the person in whose custody prisoners of

16 war are, and with respect to the matters and to the facts of this case,

17 the prisoners of war were in the custody of Operational Group South, and

18 the commander of Operational Group South is Mile Mrksic. So --

19 JUDGE MERON: Was Sljivancanin given by Mrksic certain

20 responsibilities or not?

21 MR. BOURGON: Then, Mr. President, what we say is that if he was

22 given -- we say -- we, of course, in our brief, we argue that he wasn't.

23 JUDGE MERON: Now assume for a moment that he was --

24 MR. BOURGON: We argue, but assuming that he was given, then

25 argument, Mr. President, if he was given some taskings to accomplish, he

Page 153

1 can be, of course, found to have failed in his duty to accomplish a task

2 given to him by his commander. But unless you will find this duty was a

3 culpable intent with respect to the prisoners of war, he cannot be found

4 guilty of a crime. That's what we are saying. On the other hand, Mr.

5 President, the commander who had those prisoners in his custody because

6 they were in the custody of the unit, then it's a different matter

7 because the duty belongs to him at the time, the de jure responsibility.

8 JUDGE MERON: But the most immediate and direct responsibility

9 pertained to Sljivancanin as the head of the military police unit, who

10 was given -- assuming he was given responsibilities by Mrksic.

11 MR. BOURGON: I thank you for this observation. It is very

12 important because one way which an officer within the military unit which

13 has the custody of the prisoners of war could, by his attributions, be

14 responsible for the prisoners. He could have responsibility for the

15 prisoners, but we heard the Prosecution this morning say that the

16 security officer did not have this responsibility for prisoners of war,

17 and Sljivancanin was not the head of the military police; far from it.

18 All the evidence on the record clearly showed that he was not -- he did

19 not -- he did not exercise command over the military police. If one

20 person exercised command over the military police, it was Mile Mrksic,

21 and not Sljivancanin.

22 JUDGE MERON: I'm sure we will hear comments from the Prosecution

23 on this point.

24 MR. BOURGON: Thank you, Mr. President.

25 If I go on -- I'm moving on, Mr. President, Your Honours, to I

Page 154

1 Ground 4 dealing with our submissions that there was no omission on the

2 part of Sljivancanin, simply because if he was in Ovcara, contrary to our

3 arguments, then he did not see the beatings and the crimes being

4 committed there, and if he did not see those crimes, then there cannot be

5 any omission on his behalf.

6 Mr. President, on the basis of the lack of evidence on the record

7 as to what Sljivancanin did or did not do at Ovcara, this, in our view,

8 is the reasonable conclusion. Of course, Mr. President, we maintain that

9 Sljivancanin was never at Ovcara on 20 November 1991, and we insist on

10 this. As demonstrated by my colleague, there's just too many hoops which

11 the Trial Chamber went through to arrive at this conclusion.

12 So now I find myself arguing in the abstract, what if he was

13 there? Does that make him guilty of a crime? Firstly, our submission in

14 this regard should not be considered in any way as recognising that

15 Sljivancanin was there. Moreover, it is critical in our assessment that

16 the responsibility of Sljivancanin must be assessed precisely on the

17 basis of the evidence on the record. Why is this important? Because the

18 Trial Chamber found Sljivancanin guilty because he had seen and not taken

19 action. That's basically the reason why he was found guilty by the Trial

20 Chamber.

21 Now, of course, in order to trigger his duty to protect, in the

22 sense of triggering an omission, he must have seen the beatings taking

23 place, and he must have been aware, and he must have failed to take

24 action.

25 The Trial Chamber in this case did not find that Sljivancanin saw

Page 155

1 the mistreatment. The Trial Chamber said he must have seen the

2 mistreatment, which is quite different. In order for the Trial Chamber

3 to conclude that he must have seen the mistreatment, it must be the only

4 reasonable conclusion based on the totality of the evidence. As

5 demonstrated in our written pleadings, this is not the case. The Trial

6 Chamber firstly found that he did not enter the hangar, which means that

7 the only mistreatment he could have seen is that which took place outside

8 when the prisoners were taken out of the buses, went through the

9 gauntlet, and entered the hangar. This is very important because my

10 colleague demonstrated that the only witness who saw Sljivancanin there,

11 who would have seen Sljivancanin there, he said that when he saw

12 Sljivancanin, the buses were gone and everybody is in the hangar. So

13 what could Sljivancanin see? He did not see the beatings, Mr. President.

14 He could not see the beatings -- the prisoners going through the

15 gauntlet.

16 Now, there are two findings of the Trial Chamber in this regard,

17 at paragraph 380 and 663, and then those two findings are contradictory

18 to its own finding regarding what it accepted from Witness P-009. The

19 question becomes, Mr. President: How long was Sljivancanin at Ovcara, if

20 he was there? The problem is we have no evidence. When did he arrive?

21 We don't know. When he left, we don't know. What he did see, we don't

22 know. What he did, we don't know. How did he travel to Ovcara? We

23 don't know. Was he accompanied by anyone? Did he have a driver? Did he

24 speak to anyone? We know absolutely nothing concerning the involvement

25 of Sljivancanin at Ovcara. That's the crux of the matter, Mr. President.

Page 156

1 For each of these questions, not one iota of evidence, and the

2 Prosecution can point to now.

3 Now, we compare that to the testimony of Sljivancanin, who made

4 it clear that he was not there. It follows in these circumstances that

5 the -- by inference, we cannot say that Sljivancanin was there for 1, 2,

6 5, or 15 minutes, so we must rely on what's there, and what's there is

7 that when P-009 would have seen him, the buses are gone, and everybody is

8 in the hangar, and he did not look into the hangar. That's what we have

9 to rely on in part of the evidence, so thus, no reasonable trier of fact

10 could conclude beyond a reasonable doubt that he must have seen the

11 mistreatment of the prisoners.

12 One last argument is very important in this regard because it

13 also goes with our first ground of appeal, is that if we accept that he

14 was in Ovcara and that he did not do anything, it leads to a completely

15 absurd result. This means that he would have travelled to Ovcara

16 immediately one minute after finishing up his duty with the civilians in

17 the proper way. He arrives at Ovcara; nobody sees him. Upon arriving at

18 Ovcara, he sees the prisoners of war being mistreated; he sees the

19 commander of the 80th Motorised Brigade; he sees the Chief of Staff, two

20 senior officers to him; he doesn't go into the hangar to see what's

21 there; he doesn't interact with anybody in Ovcara; he leaves the area

22 with no one seeing him; having left the area, doesn't say a word to

23 anybody the whole day. Basically, he ran away, completely disregarded

24 the duty which might have been given to him or bestowed on him by his

25 commander. At night, he meets Vukasinovic, and he would pretend that he

Page 157

1 wasn't aware of Ovcara. He meets his commander. He would have avoided

2 to speak of Ovcara. This leads to an entirely absurd result, accepting

3 the fact that either he was in Ovcara, which was our Ground 1, or that he

4 must have seen the beatings.

5 I move to Ground number 5, and --

6 JUDGE MERON: You have five minutes, you know.

7 MR. BOURGON: I thought I had ten, Mr. President, based on my

8 estimate, but if I -- I will accelerate. I only have Ground 5 left,

9 which is -- I will address only two sub-grounds and not the third one,

10 the first one being that, in our submission, he did not have the

11 necessary substantial contribution, if you accept aiding and abetting,

12 simply because his acts had no effect whatsoever on the actions of the

13 perpetrators, and that's very important. Why this act? Because the

14 Trial Chamber found that there was no encouragement or moral support and

15 because when we look at the situation and the totality of the evidence,

16 what is in the mind and what is -- what are the perpetrators doing, the

17 fact that Sljivancanin shows up there has no input whatsoever or no

18 implication or effect on their actions.

19 The argument to the contrary, saying that because he did not take

20 action, they acted with impunity, is misconceived. That's not the way to

21 assess aiding and abetting. The way to assess this argument is by

22 looking at the effect on the perpetrators. The perpetrators saw those

23 senior officers present. The perpetrators saw those people in the JNA

24 taking action trying to stop them. The perpetrators did also -- were the

25 same people who were at the JNA barracks the previous morning when the

Page 158

1 JNA took action to stop them, so they know that if they are going to be

2 stopped, the people who can stop them are there. What does the presence

3 of Sljivancanin change in these circumstances, duty or no duty? It

4 changes absolutely nothing, and there is no substantial contribution.

5 The second part of the fifth ground deals with the fact that in

6 his mind, did Sljivancanin know that he was going to assist the

7 perpetrators? And the answer to this question is, absolutely, no. Could

8 Sljivancanin reasonably believe that his commander was taking action --

9 not his commander, sorry, the Chief of Staff of OG South who was there

10 was taking action? Could Sljivancanin reasonably believe that the

11 commander of the 80 Motorised Brigade was taking action? Could he

12 believe that all the members of the JNA who were there were taking

13 actions? When you look at the totality of the evidence, of course he

14 could reasonably believe that before he left Ovcara, if he was ever

15 there. Did any of these people, were their duties modified by the fact

16 that Sljivancanin would be in Ovcara? It had no impact whatsoever on the

17 duty of the commander of the 80 Motorised Brigade, no impact whatsoever

18 on Panic, no effect whatsoever on the members of JNA who are there

19 acting, doing what they could -- what they can in the circumstances to

20 stop the beatings, albeit insufficiently. We know that today. But at

21 the time, they are taking action. Sljivancanin shows up there. We don't

22 know for how long. We don't know what he sees, but we know that he could

23 have seen that the situation was being handled. Officers senior to him

24 are handling the situation. How can Sljivancanin ever believe that by

25 leaving, he is going to assist the perpetrators? He can't and did not

Page 159

1 have the mens rea for aiding and abetting, even if you maintain aiding

2 and abetting.

3 Conclusion, Mr. President. There are two things in this case

4 that need to be said. The first one is: When we look at the trial

5 judgement, from a first look, it appears to be well constructed and there

6 are many findings, but when we look at each of those findings, the way

7 they were made, and the interaction between the findings, there are just

8 too many contradictions, too many ifs, and too many questions left

9 unanswered, and too many findings made by inference, that at the end of

10 the day we don't know exactly what happened, and for this reason

11 Sljivancanin should be acquitted.

12 Just to use one example, the Trial Chamber uses the fact that he

13 would have been present at Ovcara to say that he's involved in the order,

14 and then it uses the fact that he was involved in the order to show that

15 he was in Ovcara. We have to make a choice. Which one is the first one,

16 and on which of these two facts do we build the responsibility of the

17 accused? We can't in this case.

18 Mr. President, the second thing I'd like to say has to do with

19 the omission liability which was used by the Prosecution. The

20 Prosecution started this case. It was joint criminal enterprise. It was

21 ordering. It was instigating. It was insisting. It was aiding and

22 abetting. It was everything --

23 JUDGE MERON: You really have two minutes at the utmost, please.

24 MR. BOURGON: I'll be done in two minutes, Mr. President.

25 It was everything but omission liability, and the case was

Page 160

1 conducted not on the basis of omission liability; it was conducted on the

2 basis of the Prosecution's theory. At the end, the Trial Chamber

3 unfortunately accepted this form of liability. We ask you to say that

4 type of liability does not exist. Even if you say it does exist, there

5 was substantial prejudice. We describe this prejudice in our pleadings,

6 but I'll add one more.

7 It is important to ask ourselves, why is it that we have so

8 questions left open concerning what happened at Ovcara and what were the

9 doings of Sljivancanin? Because the case was not conducted on the basis

10 of omission liability, and on this basis we ask you to order a new trial,

11 at the minimum. Either we acquit Sljivancanin and he goes home, or we

12 have a new trial so he has the opportunity to make his case knowing what

13 the Prosecution's case is all about.

14 Thank you, Mr. President.

15 JUDGE MERON: Thank you, Mr. Bourgon.

16 The Prosecution, you have one hour and a half. And as I

17 indicated this morning, you don't have to use the entire time if you

18 don't need to.

19 MS. CAREY: Good morning, Your Honours.

20 I'm Kristina Carey. I'll be presenting the Prosecution's

21 submissions in response to Ground 2, relating to whether aiding and

22 abetting by omission is a mode of liability, and Ground 5, relating to

23 the Trial Chamber's application of the elements of aiding and abetting to

24 the facts of this case. During my submissions, I will also respond to

25 question 4 regarding the degree of contribution required for aiding and

Page 161

1 abetting. I'll be followed by my co-counsel, Mr. Marwan Dalal, who will

2 present the Prosecution's submissions in response to Ground 3, relating

3 to Sljivancanin's delegated authority. Then Ms. Najwa Nabti will present

4 the Prosecution's submissions in response to Grounds 1 and 4, relating to

5 Sljivancanin's presence at Ovcara and what he witnessed there.

6 For your reference, written submissions for the grounds that I

7 will be speaking about, sub-grounds 2(a) and 2(c) and 5(a) and 5(b), are

8 found in the Prosecution's supplemental response brief. All other

9 written submissions for Grounds 2 and 5 are contained in the

10 Prosecution's consolidated response brief.

11 When the Trial Chamber found that Sljivancanin, a very senior

12 officer, delegated with the responsibility for the evacuation of Vukovar

13 Hospital by Mile Mrksic, had breached his duty of care to protect the

14 prisoners of war that were taken from the hospital and had knowingly

15 assisted the TOs and paramilitaries in their torture of these prisoners

16 by doing nothing to protect them, despite the considerable resources at

17 his disposal, the Trial Chamber correctly characterized Sljivancanin's

18 criminal conduct as aiding and abetting.

19 The Trial Chamber's conclusions were sound because aiding and

20 abetting is a mode of liability under the Statute and is criminalised in

21 international law. Having applied the correct law, the Trial Chamber

22 then correctly identified the elements of this mode of liability and

23 properly applied the law to the facts.

24 The Chamber was also correct in its conclusion that the trial was

25 fair because Sljivancanin had notice of this theory of liability and was

Page 162

1 able to prepare a defence against it.

2 The issue of whether aiding and abetting by omission exists in

3 the Statute is a settled question. The Appeals Chamber, in both Oric and

4 Brdjanin, has indicated that this mode of liability exists. The fact

5 that the Appeals Chamber did not choose to set out the elements of aiding

6 and abetting precisely in either Oric or Brdjanin's appeal judgements is

7 not evidence that the mode doesn't exist under the Statute. Because the

8 factual findings in those cases precluded entering a conviction on the

9 basis of aiding and abetting by omission --

10 THE INTERPRETER: Would you be so kind as to slow down when

11 reading. Thank you.

12 MS. CAREY: I apologise. The issue had not ripened in either

13 case.

14 Moreover, in Oric, the Appeals Chamber stated that:

15 "At minimum, an aider and abetter's conduct would have to meet

16 the basic requirements of aiding and abetting."

17 Sljivancanin's argument regarding the Appeals Chamber's language

18 in Oric defies common sense in that it presumes that the Appeals Chamber

19 speculated in a written judgement on the possible elements of a mode of

20 liability that it did not believe actually existed.

21 The Blaskic appeals judgement shows that conduct like that of

22 Sljivancanin's in this case is criminalised and is, at the least, aiding

23 and abetting. In Blaskic, the Appeals Chamber found that Blaskic had a

24 duty to protect the prisoners in his custody, he knew of that duty, and

25 was aware that the crimes were taking place. The Appeals Chamber

Page 163

1 inferred Blaskic's knowledge from the fact that he was present at the

2 Hotel Vitez at the time that the crimes were unfolding. The fact that he

3 took no action to discharge his duty in light of this knowledge gave rise

4 to his criminal liability.

5 Sljivancanin's arguments about culpable omission do not assist

6 him, and in answer to Judge Guney's question earlier regarding commission

7 by omission, the Prosecution submits the following: All modes of

8 liability that include omission require that the omission be a culpable

9 one. Culpability means only that the individual has a duty to act, knows

10 of this duty, and fails to discharge the duty voluntarily and with the

11 mens rea appropriate for the specific mode. For aiding and abetting, the

12 mens rea is knowledge, which must be understood as the awareness of a

13 probability that a crime would be committed and that the omission would

14 assist or facilitate the commission of the crime.

15 Sljivancanin attempts to blur the lines between culpable

16 omission, a requirement in any mode - that includes omission - and

17 commission by omission. This issue is settled by the Ntagerura appeals

18 judgement. In paragraph 338, the Appeals Chamber distinguished between

19 commission by omission, which it identified as leading to a conviction as

20 the principal perpetrator of the crime and, quote, "aiding and abetting a

21 crime by encouragement, tacit approval, or omission, amounting to a

22 substantial contribution to the crime." So as you can see, both modes

23 exist, and both require proof of a culpable omission.

24 The Appeals Chamber has already considered the issue of the

25 legality principle and has concluded that this mode existed under

Page 164

1 customary international law. Therefore, it is not necessary for it to

2 take up this issue now. However, it is clear that Sljivancanin's conduct

3 in this case, as found by the Trial Chamber, resulted in criminal

4 liability under international law at the time that the conduct was

5 committed. The Trial Chamber found that Sljivancanin had a duty to the

6 prisoners of war, a duty to protect them from soldiers or from anyone

7 else while they were in his care. This duty arose under the Laws and

8 Customs of War.

9 The Trial Chamber further found that Sljivancanin knew that he

10 had this duty and what it involved. The Trial Chamber found that

11 Sljivancanin witnessed the TOs and paramilitaries beating the prisoners

12 without any intervention by the JNA forces under his command after

13 knowing of the TOs' and paramilitaries' desire revenge themselves

14 violently upon these prisoners, a desire they had acted upon the night

15 before at the Velepromet facility and earlier that day at the JNA

16 barracks. The Trial Chamber found that Sljivancanin did nothing.

17 The Trial Chamber found that Sljivancanin had considerable

18 measures at his disposal to protect the prisoners or stop the criminal

19 acts that he saw unfolding before him, yet despite knowing that he was

20 the officer with the greatest responsibility for these prisoners, a

21 responsibility that had been delegated directly from Commander

22 Mile Mrksic to him, the Trial Chamber found that Sljivancanin did

23 nothing. So was this conduct criminalised under international law in

24 1991? Of course it was.

25 World War II cases make clear that culpable omissions give rise

Page 165

1 to criminality. The World War II cases do not specifically identify the

2 mode of liability on which these convictions are based, unlike the ICTY

3 Statute, which does distinguish between modes of liability. So in order

4 to determine whether the mode was criminalised, it's necessary to look to

5 the facts and holding of the case in question and then determine whether

6 the conduct described would fall within a mode of liability in the ICTY

7 Statute.

8 Key World War II cases demonstrate that Sljivancanin's conduct

9 gave rise to criminal liability. In the Essen lynching case, the

10 accused, members of the German military, had custody of Allied airmen.

11 They marched these airmen, prisoners of war, through an area that was

12 populated by civilians who these members of the military knew were in a

13 state of rage against the prisoners. The accused knew these civilians

14 would likely take revenge against the captured prisoners should they be

15 given the opportunity to do so. Despite being under a duty, the accused

16 stood by and did nothing when the crowd attacked the prisoners.

17 The Essen lynching case, the facts of which are strikingly

18 similar to those of this case, makes clear that this conduct was criminal

19 at the time and is criminal now. This criminalised conduct can at least

20 be characterized as aiding and abetting under the ICTY Statute.

21 Similarly, in the Synagogue Fire case, a member of the SS was

22 found to have aided and abetted a crime against humanity. The Court

23 found that the accused was liable for failing to intervene while an

24 individual in his custody was beaten and seriously injured. The Court

25 found that the accused was liable because having the individual in his

Page 166

1 custody gave rise to a duty to protect the person from being attacked and

2 to prevent such attacks. This was a duty that he willfully breached by

3 taking no action to protect the individual or deter the attacks. Again,

4 this conduct could be characterized in our Statute at least as aiding and

5 abetting.

6 Sljivancanin's attempts to escape the obvious implications of

7 these cases by arguing --

8 JUDGE MERON: Sorry, was this a duty under the 3rd Geneva

9 Convention?

10 MS. CAREY: In the cases -- in those individual cases, no, they

11 were not. However, the duty -- there is an ongoing duty to protect -- to

12 treat prisoners humanely, and if Your Honours would like, I can take you

13 through submissions with respect to the state of customary international

14 law on that.

15 JUDGE MERON: So why wasn't this directly governed by the 3rd

16 Geneva Convention?

17 MS. CAREY: I believe in one case, the instrument that was found

18 in the case was not the 3rd Geneva Convention, but in each case the -- I

19 could be wrong about that, Your Honour, but my understanding, the cases

20 each related to a duty to protect prisoners from harm, and the duty can

21 stem or has existed - you are correct - in Article 3 of the Geneva

22 Conventions, but it has -- the duty to treat prisoners humanely has been

23 recognised in the Lieber Code, the Brussels Declaration, the Oxford

24 Manual, and codified in The Hague Regulations. So whether or not the

25 individual instrument in that case was the same, the duty as clearly

Page 167

1 existed in customary international law.

2 And if that answers Your Honour's question, I will continue.

3 JUDGE MERON: So we are not speaking directly to the case at

4 point now but to the history?

5 MS. CAREY: If I may confer with my colleague for a moment.

6 JUDGE MERON: Are you now talking about Sljivancanin or

7 historical cases?

8 MS. CAREY: No. In the present case, the 3rd Geneva Convention

9 certainly applies.

10 JUDGE MERON: Well, this is what I wanted to hear from you one

11 way or another.

12 MS. CARY: I'm sorry. I misunderstood your question,

13 Your Honour.

14 JUDGE MERON: So, in fact, the duties were governed by the 3rd

15 Geneva Convention?

16 MS. CAREY: Yes.

17 JUDGE MERON: And how would those duties come to an end, if at

18 all?

19 MS. CAREY: I believe, Your Honour, if you would be so kind, my

20 colleague Marwan Dalal will be answering that substantially.

21 JUDGE MERON: That would be fine, thank you.

22 MS. CAREY: Sljvancanin's argument about the different sources of

23 the duty is equally flawed. In each of these cases, the duty towards

24 prisoners of war is the same.

25 I, therefore, move now to the Prosecution's submissions on the

Page 168

1 Trial Chamber's articulation of the elements of this mode of liability.

2 THE INTERPRETER: Please slow down. Thank you.

3 MS. CAREY: Yes. The Trial Chamber committed no error when it

4 set out the elements of aiding and abetting by omission. The Trial

5 Chamber found that Sljivancanin had a duty to protect the prisoners of

6 war that was imposed upon him by the Laws and Customs of War, both as

7 part of his remit as security organ of Operations Group South and as a

8 result of the specific authority vested upon him through Mrksic's

9 delegation. This was a duty to act that stemmed from the rule of

10 criminal law, in the sense that the breach of the duty results in

11 criminal responsibility.

12 As Blaskic makes clear, the breach of a duty to protect prisoners

13 of war imposed by the Laws and Customs of War is criminalised both under

14 international and domestic law, and I take Your Honours to the Blaskic

15 appeals judgement, footnote 1384.

16 The Trial Chamber also found that Sljivancanin had the ability to

17 act. It found that he was in a position to take measures to stop the

18 mistreatment of prisoners. It found that the JNA generally had

19 sufficient resources and organisation to control the TOs and

20 paramilitaries at all times relevant to the indictment, and it found that

21 Sljivancanin was authorised to use, quote, "as many military police as

22 necessary to escort the prisoners and ensure their safe passage," and

23 that's trial judgement paragraph 396. I note as well that the Trial

24 Chamber found that in the -- that the Guards Motorised Brigade had two

25 battalions of military police that would have been at Sljivancanin's

Page 169

1 disposal.

2 The Trial Chamber, therefore, correctly found that Sljivancanin's

3 failures to act had a substantial effect on the crimes. The Trial

4 Chamber found that Sljivancanin's failure to take any steps to protect

5 the prisoners to whom he owed a duty of care, despite his position as the

6 senior-most officer delegated with the responsibility and authority of

7 Commander Mrksic himself, and despite the fact that he witnessed crimes

8 unfolding before him, had a substantial effect on the commission of the

9 crime. Sljivancanin has failed to show how this conclusion is one that

10 no Chamber could have reached -- I'm sorry, no reasonable Chamber could

11 have reached.

12 And I come now to Your Honour's fourth question. The term

13 "concrete influence" is synonymous with the requirement that the

14 Prosecution prove the omission had a substantial effect on the commission

15 of the crimes. Contrary to Sljivancanin's submissions, the Prosecution

16 is not required to prove the existence of a cause-and-effect

17 relationship, and I apologise. Actually, that is -- he did clarify that

18 point. It must show that the omission had a substantial effect on the

19 crime in the sense that the crimes would have been substantially less

20 likely had the accused acted. This was proved in this case.

21 And, finally, the Trial Chamber applied the correct mens rea. As

22 one can see in the Dinda-ba-hizi appeals judgement, paragraph 122, the

23 mens rea for aiding and abetting is knowledge, which must be understood

24 as awareness that a crime will probably be committed and that the

25 omission will assist or facilitate the crime. In this case, however, the

Page 170

1 facts found by the Trial Chamber easily meet the standard that

2 Sljivancanin argues for. It found that Sljivancanin knew that he had the

3 ability to act, he knew he had the resources at his command to allow him

4 to act effectively, and he was aware of the essential elements of the

5 crimes that were ultimately committed by the TOs and paramilitaries.

6 Therefore, the Trial Chamber drew the only reasonable inference to be

7 drawn from his failure to act, given his awareness of his own ability to

8 act, which was that Sljivancanin chose not to act.

9 I'll turn now to Sljivancanin's arguments with respect to Ground

10 5. My co-counsel, Ms. Nabti, will be addressing challenges to some of

11 the factual findings that do relate to this ground. For all other

12 responses to challenges by the Trial Chamber's factual findings, we rely

13 upon our response brief. My submissions, therefore, are based on the

14 Trial Chamber's findings.

15 The Trial Chamber's findings on each of these elements were

16 correct and represented the only reasonable conclusions available on the

17 evidence. The Trial Chamber correctly found that Sljivancanin's failure

18 to take any actions to protect the prisoners of war under his care and

19 protection had a substantial effect on the commission of tortures at the

20 Ovcara hangar. Sljivancanin's argument incorrectly presumes that the act

21 or omission of the aider and abetter must necessarily be known to the

22 principal perpetrator and, thus, encourage them. This erroneous

23 conclusion is highlighted by the fact that encouraging presence is only a

24 subset of the forms that aiding and abetting can take. In fact, contrary

25 to his submissions, the inactions and passivity of other individuals

Page 171

1 stands to make the impact of a forceful and effective action all the more

2 likely to obstruct criminal conduct. He's failed to demonstrate how the

3 inactions of other JNA personnel at Ovcara renders the Trial Chamber's

4 conclusions about his own failure to act unreasonable.

5 His argument that the presence of other JNA would have rendered

6 any action that he could have taken futile disregards the Trial Chamber's

7 findings, which were reasonable.

8 The Chamber, in paragraph 670, found that there were steps

9 available to Sljivancanin that would have obstructed the perpetrators'

10 ability to commit the crimes. It found that Sljivancanin could have

11 given clear direction to the military police at Ovcara. He could have

12 called for more military police to come and assist at Ovcara, and he

13 could have prevented the military police who were at Ovcara from

14 departing when the buses departed or have called them back. These

15 findings make clear that the fate of the prisoners did not rest solely on

16 the competence of members of the 80th Motorised Brigade. Sljivancanin's

17 assertions that calling upon other resources would have, quote, "taken

18 too much time," simply has no foundation in the evidence.

19 The Trial Chamber found that Sljivancanin, through the authority

20 delegated to him by Mrksic, had all of the resources of Operations Group

21 South, including multiple MP battalions, at his disposal to protect these

22 prisoners. The Trial Chamber also found in paragraph 89 that the JNA had

23 adequate manpower, resources, and organisation to control the TOs and

24 paramilitary threat at all relevant times. Clearly, it was objectively

25 possible to control the criminal element at Ovcara. Sljivancanin chose

Page 172

1 not to. He argues instead that because other JNA present abdicated their

2 responsibility or failed in their attempts to remedy the problem, he was

3 absolved of any requirement to act. The implication of this argument is

4 that the wholesale abdication of a duty imposed by the Laws and Customs

5 of War is justified by the criminality, negligence, or incompetence of

6 others. It must be rejected.

7 The Trial Chamber's conclusion that Sljivancanin's omission

8 facilitated the commission of the crimes was also reasonable and based on

9 the evidence. First, the Trial Chamber found that Sljivancanin witnessed

10 the mistreatment. This finding is going to be dealt with in greater

11 detail by my co-counsel Ms. Nabti in response to the fourth ground of

12 appeal. In light of this finding, all of Sljivancanin's remaining

13 arguments rely upon evidentiary speculation, which this Chamber need not

14 engage in. However, even Sljivancanin's further speculations are at odds

15 with the facts found by the Trial Chamber.

16 The Trial Chamber found that during the time that Sljivancanin

17 was present, the JNA was taking no steps to protect the prisoners or

18 restrain the TOs and paramilitaries. The Trial Chamber found that the

19 presence of the TO and paramilitaries placed the prisoners at grave risk,

20 a risk that Sljivancanin appreciated given his knowledge that these same

21 TOs and paramilitaries had beaten prisoners bloody at the JNA barracks,

22 requiring that the prisoners be removed from the barracks to Ovcara in

23 order to protect them from further harm.

24 The Chamber found that the other JNA present, such as Vojnovic,

25 reported what they saw to Mrksic himself. However, Sljivancanin, the

Page 173

1 officer that Mrksic had entrusted with the care of these POWs, did

2 nothing. There's no need to speculate as to whether Sljivancanin would

3 have known and appreciated the potential value of his actions.

4 Sljivancanin testified as to what should have been done in such a

5 situation. And I take you now to his testimony at transcript reference

6 13749 through 13750, and I quote:

7 "If he should learn that in the zone of OG South, which is a

8 large zone, any crimes are being committed, he should order first the

9 commander of the zone where such criminal offences are being perpetrated,

10 be it the brigade, what measures are to be taken in order to prevent such

11 crimes."

12 Sljivancanin then stated:

13 "We have agreed that it is this duty to intervene and request

14 from the specific person responsible for the zone where the crime is

15 being committed to take measures; if he cannot, to help him. If he

16 cannot help him, to seek further assistance from the superior command.

17 I think that I have been clear."

18 Yet the Trial Chamber found that when Sljivancanin was at Ovcara

19 and throughout the remainder of the day, despite having specific

20 responsibility for the prisoners' safety, a duty which required that he

21 protect them from all possible harms, whether from soldiers or other

22 elements, and despite having all of Mrksic's own powers and authorities

23 at his disposal to deal with the criminal threat that was so clearly

24 posed by the TOs and paramilitaries, Sljivancanin did nothing.

25 In light of these findings, the Trial Chamber's conclusion that

Page 174

1 Sljivancanin must have been aware that his omissions facilitated the

2 commission of the crimes was reasonable.

3 With respect to the issues raised by my learned colleague with

4 respect to the indictment, the Prosecution will rest on its submissions

5 which are contained in its brief, and this, therefore, concludes my

6 submissions on the second and fifth grounds of appeal, and unless Your

7 Honours have questions, I will turn the podium over to my co-counsel,

8 Mr. Dalal.

9 Thank you.

10 JUDGE MERON: Please proceed. I don't see any questions.

11 MR. DALAL: Good afternoon, Your Honours. My name is

12 Marwan Dalal, and I will be presenting the Prosecution's submissions in

13 response to Sljivancanin's Ground 3.

14 But before going into my submission, two brief comments, one in

15 response to my learned colleague's proposition that only the

16 representative of a state bears the legal duty to protect prisoners of

17 war. Of course, we oppose this submission: Prisoners of war and the

18 Geneva Conventions in general are too important to interpret such an

19 important duty narrowly. We think that the legal duty to protect

20 prisoners of war exists wherever prisoners of war are, and on --

21 definitely not only the representative of the state or the head of the

22 group that have custody of the prisoners of war bears the duty to protect

23 prisoners of war, in this case, Mile Mrksic.

24 The legal duty and its breach is determined by the interaction

25 with the prisoners of war and the level of awareness of violations that

Page 175

1 are being committed to prisoners of war and conduct and omission in

2 relation to this awareness.

3 As to the second question, when would a legal duty end, this is

4 relevant in our context to the appeal -- to the Prosecution appeal, to

5 the awareness of Sljivancanin and his responsibility for the murders

6 later on the 20th-21st November, and my co-counsel Ms. Brady will deal at

7 length on Friday when the Prosecution will submit its submission and rest

8 its appeal on this question.

9 I turn now to the issue of Sljivancanin's entrusted

10 responsibility that Mrksic conferred on him on the 19th of November in

11 the afternoon. In this regard, Sljivancanin argues that he had unlimited

12 assignments ordered or tasked by Mrksic to him, limited to the vicinity

13 of the hospital. Sljivancanin is wrong, in our submission, and we have

14 answered extensively in our written brief this proposition. I will

15 highlight several issues relating to this -- to this matter.

16 Sljivancanin was entrusted by Mrksic on the afternoon of 19

17 November 1991 with the responsibility to evacuate the Vukovar Hospital

18 the following day and transport the prisoners of war from there and be in

19 charge of their safe passage. For this purpose, Mrksic empowered him,

20 Sljivancanin, to use as many military police as necessary. Mrksic

21 announced Sljivancanin's responsibility the same day during the 6.00 p.m.

22 daily briefing at OG South Command in Negoslavci. In this,

23 Sljivancanin's responsibility --

24 THE INTERPRETER: Thank you for slowing down.

25 MR. DALAL: I will slow down.

Page 176

1 Indeed, Sljivancanin's responsibility was not limited to the

2 hospital. He was also in charge of providing safe passage to the

3 prisoners of war.

4 Sljivancanin acknowledged in his testimony Mrksic's order and

5 that his responsibility in relation to the prisoners of war went beyond

6 the hospital. The Appeals Chamber is respectfully referred to

7 paragraphs 191, 192, 390, 396, and 400.

8 Sljivancanin followed the path of the prisoners of war. He was

9 at the hospital during their selection. He was at the JNA barracks when

10 they stopped there with the buses, and he eventually was at Ovcara

11 shortly after they arrived with the buses, the prisoners of war. The

12 only reason for him, in our submission, to follow the prisoners of war is

13 his responsibility to transport them safely.

14 Both Mrksic and Sljivancanin are responsible for the crimes

15 committed against the prisoners of war in Ovcara and before that with

16 regard to Mrksic. Mrksic was the overall commander and was engaged with

17 critical decisions relating to the prisoners of war. He was aware of

18 their increasingly terrible situation in the hands of his subordinates.

19 Sljivancanin was in charge for the entire evacuation operation as

20 just mentioned. This entrusted responsibility by Mrksic empowered

21 Sljivancanin to use military police as required both at the hospital and

22 in order to transport the prisoners of war safely from there. Selection,

23 transportation, and safety of prisoners of war were indeed inherent to

24 the responsibility conferred on Sljivancanin by Mrksic.

25 In this submission, I want to highlight key findings and pieces

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1 of evidence that demonstrate Sljivancanin's entrusted responsibility.

2 Four elements will illustrate the soundness of the Chamber's finding in

3 this regard. The first element is Sljivancanin's status and experience

4 with a similar evacuation operation only two days before the evacuation

5 operation in question; the second element is Sljivancanin's preparations

6 for this operation; the third element is Sljivancanin's conduct and

7 interaction with others at the hospital on the morning of 20 November

8 1991; and the last element, the fourth element, is Sljivancanin's

9 presence at the JNA barracks that morning and at Ovcara as well as his

10 interaction with his subordinates.

11 The first element: Sljivancanin's status and similar operation

12 on the 18th of November. Your Honours, at the relevant time,

13 Sljivancanin was the senior officer, a major in the JNA. He was the

14 chief of security organs within the OG South, which was commanded by

15 Mrksic. Part of his responsibility as a security organ was detecting and

16 preventing hostile activities against the armed forces. The

17 responsibility for prisoners of war was not strange to Sljivancanin;

18 paragraphs 115 and 668.

19 Sljivancanin was responsible for a similar operation relating to

20 the Croatian forces who had surrendered on 18 November 1991 at Mitnica.

21 The destination of this group was Sremska Mitrovica, and they passed

22 through Ovcara. Sljivancanin was the officer in command during the

23 transport of these prisoners of war from Mitnica to Ovcara;

24 paragraph 151. Sljivancanin's senior subordinate, Karanfilov, took a

25 leading role in this operation. He gave instructions to and was reported

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1 to by the military police, the 80 MTBR, who secured the prisoners at

2 Ovcara; paragraph 153, 155, and 668.

3 Moving to the second element, Sljivancanin's preparations toward

4 the evacuation operation. On the evening of 19 November, around

5 7.00 p.m., after having been entrusted by Mrksic with the responsibility

6 for the entire evacuation operation, Sljivancanin held a briefing for his

7 subordinates. Sljivancanin's deputy, Vukasinovic, and other senior

8 subordinates of Sljivancanin, namely Karanfilov, and Karan attended this

9 briefing. At this briefing, Sljivancanin ordered Vukasinovic with the

10 organisation of transport of persons from the hospital by buses. He was

11 to ensure the transport by buses. Shortly after 6.00 a.m. on 20

12 November, Vukasinovic departed from Negoslavci for Vukovar Hospital,

13 following his superior's orders the previous day; paragraph 192 and

14 paragraph 198.

15 Further, at around 2.00 a.m. on 20 November, Sljivancanin met

16 with a senior JNA colonel -- officer, Colonel Vujic, outside the command

17 post in Negoslavci. Colonel Vujic had arrived from Belgrade to assist in

18 handling the prisoners of war. Vujic testified, and the Trial Chamber

19 accepted his testimony, that Sljivancanin announced at this meeting that

20 he, Sljivancanin, would be in charge of the evacuation of the hospital

21 the following day, paragraph 395, the evacuation of the hospital and not

22 limited assignments at the hospital.

23 It is clear that from the outset, Sljivancanin -- Sljivancanin's

24 responsibility, as understood by him, was not limited to the vicinity of

25 the hospital but extended well beyond it and included the safe

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1 transportation of prisoners of war to their final destination.

2 The third element, Sljivancanin's conduct and interaction with

3 others at the hospital on the morning of 20 November. Sljivancanin's

4 conduct at the hospital clearly shows that he was in charge of the entire

5 evacuation of the hospital. He arrived at the hospital at around

6 7.00 a.m., gathered the hospital staff, and told them that he would be

7 the man in charge and the one who would be issuing orders. Colonel Vujic

8 was also at the hospital. His accepted evidence is that Sljivancanin was

9 giving orders to the military police present there. The accepted

10 evidence of many witnesses at the hospital who saw Sljivancanin and

11 interacted with him attest to his status and role; paragraph 401.

12 Sljivancanin was the one to say who could leave the hospital compound and

13 who could get off the buses. He was the one giving orders, and others

14 were obeying him. The soldiers coming to him were addressing him Major,

15 sir, or Major Sljivancanin. Everything basically transpired under his

16 control and on his orders.

17 The fourth element: Sljivancanin's presence at the JNA barracks

18 and at Ovcara as well as his interaction with his subordinates.

19 Sljivancanin's conduct and responsibility extended well beyond the

20 hospital. From the hospital, he went to the JNA barracks when the buses

21 with the prisoners of war were there. He was present at the JNA barracks

22 at around 11.00, 11.30 in the morning. His presence there was not a

23 coincidence. He went there as part of his responsibility to safely

24 transport the prisoners of war; paragraph 372. Sljivancanin continued to

25 exercise control over the prisoners at the JNA barracks. Prisoners

Page 180

1 listed by him were removed from the buses and returned to the hospital.

2 There, he questioned them. Those who were thought to have participated

3 in the fighting on the Croatian side were returned to the barracks;

4 paragraphs 221 and 373. Sljivancanin received reports from senior

5 subordinates of his about the deteriorating security situation of the

6 prisoners of war at the JNA barracks to show that it was not only

7 selection, his responsibility, but also security.

8 His deputy, Vukasinovic, reported to him about the violent

9 conduct of the TOs against the prisoners of war at the JNA barracks.

10 Karanfilov also reported to Sljivancanin about what happened at the JNA

11 barracks. Unfortunately, Sljivancanin said to Karanfilov that everything

12 is okay. They did so, his subordinates, for one reason: Their

13 commander, Sljivancanin, was the person in charge of safely transporting

14 and securing the prisoners of war from the hospital; paragraphs 374 and

15 375. Sljivancanin's deputy, Vukasinovic, had a leading role in this

16 operation. His role is another clear illustration of the scope of

17 Sljivancanin's responsibility, which transcended the hospital vicinity

18 and included the safe transportation of prisoners of war.

19 Vukasinovic led the buses to the hospital from Negoslavci early

20 on 20 November, following Sljivancanin's order the night before;

21 paragraph 198. He, Vukasinovic, led the buses from the hospital to the

22 JNA barracks at around 10.00 a.m.; paragraph 208. And eventually,

23 Vukasinovic arrived with the buses and the prisoners of war to Ovcara

24 at -- and this is at paragraph 259.

25 Indeed, Your Honours, look for Vukasinovic, and you will get a

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1 clear idea about the scope of Sljivancanin's responsibility.

2 Further, Sljivancanin was directly involved in the communication

3 and implementation of the order to transfer the prisoners from the JNA

4 barracks to Ovcara and to secure them there. This order, in the

5 Chamber's finding, facilitated the commission of crimes at Ovcara that

6 day, and this finding is solid, in our submission, and relies on other

7 findings that are not less solid, of course. This is at paragraph 659.

8 Indeed, Your Honours, Sljivancanin's presence at Ovcara at about

9 2.30, 3.00 p.m., on November 20th, not long after the arrival of the

10 buses there from the JNA barracks, is only because he was responsible for

11 the transportation and security of the prisoners of war. Sljivancanin

12 was at the hospital, at the JNA barracks, and at Ovcara. Securing the

13 safety of the prisoners of war was his responsibility, a responsibility

14 that he manifestly failed to carry out that fatal day; paragraph 383.

15 In conclusion, Your Honours, and based on the totality of the

16 evidence, which I have highlighted some of it today, the only reasonable

17 conclusion is the one reached by the Trial Chamber. Sljivancanin was

18 ordered by Mrksic to be in charge of the entire hospital evacuation,

19 which included necessarily the transport of the prisoners of war and

20 securing their safe passage.

21 Your Honours, if you have no questions on this submission, I'll

22 turn to my co-counsel, Ms. Najwa Nabti, to present the Prosecution's

23 response to Sljivancanin's Grounds 1 and 4 of his appeal.

24 MS. NABTI: Good afternoon, Your Honour.

25 Good afternoon, Your Honours. I will address Grounds 1 and 4 of

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1 Sljivancanin's appeal, which challenge the Trial Chamber's factual

2 findings that Sljivancanin was present at Ovcara on 20 November 1991 and

3 that he must have witnessed the mistreatment of prisoners there. These

4 findings were reasonable in light of all the evidence, not just Witness

5 P-9's identification of Sljivancanin at Ovcara, but also the timing of

6 events on 20 November and Sljivancanin's responsibilities that day.

7 I will not respond today to each of Sljivancanin's arguments

8 witness by witness, which we addressed fully in our response brief. I

9 will instead focus on a couple of main challenges he makes to the Trial

10 Chamber's findings in Grounds 1 and 4.

11 First, the alleged inconsistency between P-9's sightings of

12 Sljivancanin and time-line of events on 20 November and, second, the

13 reliability of P-9's identification of Sljivancanin at Ovcara based on

14 Witness P-9's prior sightings of Sljivancanin and the accounts of other

15 witnesses who did not see him. I will then turn briefly to

16 Sljivancanin's remaining argument in Ground 4 regarding what he observed

17 at Ovcara.

18 On each of these main points, Sljivancanin fails to meet the

19 standard of review on appeal. As his submissions today demonstrate, he

20 is seeking to substitute his own assessment of the evidence for that of

21 the Trial Chamber, disagreeing with its credibility assessments and

22 rearguing evidence anew. This falls far short of the burden required to

23 establish that no reasonable Chamber could have found the challenged

24 facts, and his arguments should be rejected.

25 Now, before getting into the specific's of P-9's sighting of

Page 183

1 Sljivancanin at Ovcara on 20 November 1991, it's useful to provide some

2 context for the events of that day, particularly since Sljivancanin

3 argues that he could not have been seen at Ovcara or the JNA barracks by

4 P-9 because he was somewhere else at the time.

5 The Trial Chamber's findings make it clear that P-9's sightings

6 of Sljivancanin on 20 November are, in fact, consistent with the

7 estimated time-line of events that day, taking into account

8 Sljivancanin's presence at other locations and the distances between

9 those locations. The Defence referred to Exhibit 156, which is a map,

10 and that confirms that the distance between Vukovar Hospital and the JNA

11 barracks is less than four kilometres. The distance between the hospital

12 and Ovcara is less than ten kilometres. The Trial Chamber found that

13 these locations were not far apart at paragraphs 222 and 223, and while

14 it may have taken a convoy of five buses of prisoners a half an hour to

15 get from the JNA barracks to Ovcara, it wouldn't necessarily take

16 Sljivancanin that same amount of time. But even so, it would still be

17 consistent with the Chamber's findings on the time-line of events.

18 With that in mind, I turn first to the events of the morning of

19 November 20, 1991. And as will be appearing before you, at 10.30 in the

20 morning, five buses of prisoners from Vukovar, the Vukovar Hospital,

21 arrived at the JNA barracks. Around this same time -- around the same

22 time, Sljivancanin met international monitors at Vukovar Hospital after

23 having blocked them at a nearby bridge while the buses of prisoners

24 departed the hospital. About 20 minutes later at the barracks, a group

25 of 12 to 15 prisoners identified as hospital employees or family members

Page 184

1 were transferred to an empty military bus, referred to as the sixth bus,

2 which then returned to the hospital after some time. At around 11.00 or

3 11.30, Sljivancanin was seen at the barracks shortly before this sixth

4 bus departed, and before noon, Sljivancanin was back at the hospital to

5 screen the passengers from the sixth bus together with TO Commander

6 Vujovic, who had also just been at the JNA barracks.

7 Moving to the afternoon, around 1300 or 1400, Sljivancanin was

8 interviewed in front of Vukovar Hospital by a news team. Around 1330 or

9 1430, five buses of prisoners arrived at Ovcara, and they were unloaded

10 one by one, each taking about 15 to 20 minutes. Around 1400 or 1430,

11 Sljivancanin was at the hospital when the last buses of civilians

12 departed. And at around 1430 or 1500, Sljivancanin was seen standing

13 down the road from the hangar at Ovcara.

14 This time-line is not only consistent with the relatively short

15 distances involved; as the Chamber found at paragraph 372 and also as my

16 co-counsel, Mr. Dalal, has highlighted, it makes sense that Sljivancanin

17 would check on the status of the evacuation of these prisoners, given his

18 responsibilities that day. Indeed, Sljivancanin knew that TOs and

19 paramilitaries had attacked this group of prisoners that was transferred

20 at the barracks in the morning, and this was despite the presence of JNA

21 officers and military police; trial judgement paragraph 375.

22 Even by Sljivancanin's own account, Vukasinovic warned

23 Sljivancanin that he, quote, "had problems in the barracks because

24 members of the Territorial Defence think that you are releasing the most

25 notorious Ustashas and that you did that last night at Mitnica too."

Page 185

1 Sljivancanin transcript pages 13656 to 13657. So Sljivancanin was aware

2 that unlike the previous evacuation of Croat prisoners from Mitnica to

3 Sremska Mitrovica, this time the TOs knew about and were violently

4 opposing the evacuation of prisoners. He, therefore, had reason to check

5 on the status of the evacuation that afternoon, particularly once the

6 buses of civilians left the hospital.

7 To sum up, the Trial Chamber's estimated time-line of events on

8 20 November 1991 is consistent with P-9's sightings of Sljivancanin that

9 day.

10 I'll now address the Defence's challenge to P-9's identification

11 of Sljivancanin at Ovcara based on P-9's prior sightings of Sljivancanin

12 and the accounts of other witnesses.

13 Despite what the Defence has argued, the Trial Chamber did

14 address the reliability of P-9's identification and noted, in particular,

15 that P-9 had seen Sljivancanin up close on two previous occasions; the

16 day before at Vukovar Hospital and that very morning at the JNA barracks.

17 Sljivancanin was indeed a memorable figure. P-9 recalled his

18 distinctively different appearance and his commanding presence, which

19 left a strong impression on P-9. So when P-9 saw Sljivancanin for a

20 third time at Ovcara, there is no question that this was the same JNA

21 officer; trial judgement paragraphs 367 to 368, 377, and 383.

22 Indeed, as another witness confirmed, Sljivancanin, quote, "was

23 so striking that I don't think it's possible to forget a man like that."

24 Berghofer, transcript page 5278.

25 As addressed fully in our response brief, the Chamber's findings

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1 on P-9's previous sightings of Sljivancanin were also reasonable.

2 Although I'll touch further on Sljivancanin's presence at the JNA

3 barracks when addressing Sljivancanin's argument about the observations

4 of other witnesses, for now I'd like to point out that the Trial Chamber

5 carefully analysed and explained why it found other witnesses'

6 testimonies did not contradict P-9's sighting of Sljivancanin at the JNA

7 barracks on 20 November, and this is in paragraphs 369 to 372.

8 P-9's sighting of Sljivancanin at Vukovar Hospital on 19 November

9 was likewise reasonable and consistent with other witnesses' evidence

10 that Sljivancanin was there that afternoon; Trial Chamber judgement

11 paragraphs 183 and 367.

12 I'll turn now to the Defence's challenge to the Trial Chamber's

13 reliance on P-9's evidence based on the testimonies of other witnesses.

14 The thrust of his argument is that because other witnesses didn't see

15 Sljivancanin at the JNA barracks and Ovcara and P-9 did, the Chamber's

16 reliance on P-9's testimony must be unreasonable. This argument also

17 lacks merit. The Trial Chamber looked at all the evidence about P-9's

18 sightings of Sljivancanin on 20 November. It made detailed findings

19 about what other witnesses saw and didn't see, considering the different

20 times and locations from where these witnesses' observations were made.

21 For example, at the JNA barracks, at paragraphs 296 to 298 and 370, the

22 Trial Chamber canvassed the different times and locations that various

23 JNA officers were at the barracks on the morning of the 20th and

24 explained why they may not have seen Sljivancanin in light of their

25 differing accounts. The Chamber further considered, at paragraphs 216

Page 187

1 and 369, that the prisoners at the barracks were being threatened by TOs

2 and paramilitaries surrounding the buses and were not in a position to

3 recognise all persons near the buses at some time. Further detail is

4 provided in our briefs.

5 Regarding the witnesses at Ovcara, the Trial Chamber provided

6 more than ten pages of analysis, addressing the various accounts of the

7 JNA officers, including P-14, Vojnovic, and Panic. The specific

8 arguments are addressed in our response brief, but for each of them the

9 Chamber addressed when they were at Ovcara, for how long, where they

10 were, whether they went inside the hangar, what they were doing, and who

11 they saw. The Chamber then reasonably explained why these testimonies

12 did not call in question the evidence of P-9, based on their differing

13 locations, timing, and perspectives. In particular, several of them were

14 only at Ovcara for only a short time, and others went inside the hangar;

15 trial judgement paragraphs 254 to 274 and 378 to 383.

16 The Trial Chamber further considered that the prisoners at Ovcara

17 were not in the position to notice the presence of all JNA officers

18 outside the hangar. The Chamber also considered the effects of fear and

19 the chaotic situation on these witnesses; trial judgement paragraphs 234,

20 236 to 238, and 382.

21 Indeed, at the time that Sljivancanin was found to be at Ovcara,

22 they were either being beaten in the gauntlet or already inside the

23 hangar. The testimonies of these witnesses as cited in our response

24 brief confirm this, and they leave no doubt that their primary focus was

25 on survival and avoiding the beatings at this time.