Tribunal Criminal Tribunal for the Former Yugoslavia

Page 182

1 Wednesday, 6 October 2004

2 [Open session]

3 --- Upon commencing at 9.01 a.m.

4 [The accused entered court]

5 JUDGE AGIUS: Today we are going to start another chapter in the

6 history of this Tribunal. We are starting a new case, the Naser Oric

7 case.

8 So, Mr. Registrar, could I ask you to call the case, please.

9 THE REGISTRAR: Good morning, Your Honours. Case Number

10 IT-03-68-T, the Prosecutor versus Naser Oric.

11 JUDGE AGIUS: Thank you, Mr. Registrar.

12 And I welcome you all. Before we proceed any further, I want to

13 make sure that the accused can follow the proceedings in his own language.

14 Mr. Oric, good morning to you. Can you follow the proceedings in

15 a language that you can understand?

16 THE INTERPRETER: Microphone, please.

17 JUDGE AGIUS: I don't think the interpreters are receiving ...

18 THE ACCUSED: [Interpretation] Yes, I can follow the proceedings in

19 a language I speak, and I can understand everything. Thank you.

20 JUDGE AGIUS: If at any time in the course of the proceedings

21 today and on every day that the Tribunal -- the Trial Chamber will be

22 sitting, you encounter problems, difficulties, in receiving interpretation

23 in your own language, please draw our attention immediately.

24 THE ACCUSED: [Interpretation] Thank you, Your Honour. There will

25 be no problems, but I will draw your attention should there be any.

Page 183

1 JUDGE AGIUS: Thank you.

2 Appearances for the Prosecution.

3 MR. WUBBEN: Good morning, Your Honours.

4 JUDGE AGIUS: Good morning.

5 MR. WUBBEN: For the Prosecution: My name is Jan Wubben, senior

6 trial attorney, together with Mr. Gramsci Di Fazio, Ms. Joanne Richardson,

7 Ms. Patricia Sellers, attorneys; and Ms. Donnica Henry-Frijlink, she is

8 our case manager.

9 JUDGE AGIUS: I thank you and good morning to you and your team.

10 Appearances for the Defence.

11 MS. VIDOVIC: [Interpretation] Good morning, Your Honour. Good

12 morning, my learned friends. My name is Vasvija Vidovic, and together

13 with my colleague John Jones, an attorney-at-law from Great Britain, I am

14 defending Naser Oric. The members of my team are Geoffrey Roberts, our

15 case manager, and Ms. Jasmina Cosic, our legal assistant. Thank you.

16 JUDGE AGIUS: Good morning to you, madam, and thank you. Good

17 morning to the rest of the team too, and welcome.

18 Before we proceed any further, those of you who were present

19 during the pre-trial conference know exactly who we are, but I suppose I

20 should proceed with a very, very short, brief introduction of myself and

21 the other two Judges that together with me compose this Trial Chamber.

22 My name is Carmel Agius and I come from the island of Malta, where

23 I was -- I sat as the -- practically the Deputy Chief Justice on the Court

24 of Appeal and also on the Constitutional Court, the Court of Appeal, and

25 basically all its jurisdictions, including criminal jurisdictions. I have

Page 184

1 been a Judge of this Tribunal since November of 2001.

2 My right, I present to you Judge Hans Henrik Brydensholt from

3 Denmark. Judge Brydensholt was elected as an ad litem Judge in this

4 Tribunal way back in 2001, like I was. And before coming to this

5 Tribunal, he served as a Judge but also as chairman of several important

6 commissions, including the Danish Institute of Holocaust and Genocide

7 Studies, he's a member of the Penal Reform International, and at some

8 point in time he was also part of the Danish government assistance project

9 to developing countries working as an advisor on the reorganisation of the

10 judicial system of several countries, particularly Uganda and Mozambique.

11 Judge Albin Eser, to my left, is an old friend of mine. He comes

12 from Germany. Judge Eser too was elected as an ad litem Judge in 2001.

13 Apart from being a Judge, he has also been the president of one of the

14 most prestigious institutions in Germany, and that's the Max Planck

15 Institute. He's an expert on international criminal law. I must say I am

16 lucky the second time to be flanked with two very, very, very good Judges.

17 Having said that, I think we will proceed with our agenda for

18 today. Today's sitting will be divided basically into two parts, or three

19 parts. The next part will be precisely our -- there are some matters that

20 we've discussed amongst ourselves and we decided to raise today, hoping

21 that by raising them today we should be in a position to come to a

22 conclusion -- to conclude them tomorrow. And they need to be concluded as

23 early as possible. And then we will immediately move to the opening

24 statement of the Prosecutor, to be followed by the opening statement of

25 the Defence.

Page 185

1 I take it, but I just want to confirm it, that your client will

2 not be availing himself of the option and the right that he has to address

3 the Trial Chamber. And this is --

4 MR. JONES: That's right, Your Honour.

5 JUDGE AGIUS: Thank you, Mr. Jones.

6 Let's start with the housekeeping matters, some of which we will

7 deal with today, others obviously will be dealt with tomorrow.

8 There is, as you know, a motion -- a confidential motion,

9 Prosecution motion, for leave to amend their list of witnesses, which was

10 filed on the 28th of September. We have gone also through your response,

11 which was filed on the 1st of October. I want first to make sure if there

12 are any -- if there's any updating on this list, which I understand there

13 is, that you would like to put us in the picture in for today, Mr. Wubben,

14 because I understand that the list you have provided has somewhat changed

15 or that you were supposed to liaise with the Defence by a certain date.

16 MR. WUBBEN: Your Honour, if you mean the sequence order of the

17 witnesses, yes, indeed.

18 JUDGE AGIUS: That's one of it. But also you asked in your motion

19 for authorisation to add to the number of witnesses that you had on your

20 list. And I want to make sure whether you have given the Defence all the

21 information that they required of you, which was supposed to be given --

22 to be handed by a certain date, and I don't know if it has been handed or

23 not.

24 MR. WUBBEN: Your Honour, we received the response by the Defence,

25 and the response showed us that they questioned the fact that we disclosed

Page 186

1 the statements that belonged to those witnesses. We checked it out and it

2 was true, we didn't disclose it.

3 JUDGE AGIUS: Have you done so now?

4 MR. WUBBEN: We have done so in the meanwhile, several days ago,

5 but I received some kind of information that yesterday or the day before

6 they received it. It has to be confirmed. But anyhow we did our best and

7 we apologise to the Bench and to Defence that we took it that we disclosed

8 it but we didn't.


10 Madam Vidovic or Mr. Jones, I don't know who is going to respond

11 to this. First I want to make sure that you have actually received the

12 statements of the witnesses that you had made reservations on. And what

13 is -- whether you maintain the position or whether you want to revise your

14 position so that tomorrow we will be in a position to decide this issue,

15 this matter.

16 MR. JONES: Yes, Your Honour. Thank you. Well, if I might start

17 with Racine Manas, which is perhaps easiest. Your Honours referred to the

18 Prosecution motion of last Tuesday, the 28th of September. And you'll see

19 in that motion, on footnote 5, page 4, it was very clearly stated that the

20 declaration of Racine Manas would be provided to the Defence by the 1st of

21 October, 2004. It was clear and categorical. The 1st of October came and

22 went, we waited, and we considered that if we received the statement on

23 that day, although it was only a week, which wasn't a lot of time to

24 prepare for the first witness, that we would be able to handle it. But

25 because of the history of not receiving statements on time, we protected

Page 187

1 our position by filing the response which we filed.

2 On Monday, the 4th of October, we received a draft declaration and

3 a draft spreadsheet, 48 pages, with hundreds of items accompanying the

4 statement of Ms. Manas. Of course, until we receive the final statement

5 and spreadsheet, we can't prepare for cross-examination, because some

6 things might change, a lot of things might change, everything might

7 change. So we have been waiting for the final draft -- sorry, the final

8 statement, which you received yesterday, I believe. We found it in our

9 locker this morning, and that's for the first witness in this trial which

10 opens today. We've looked at it, we've considered it, and we consider we

11 will be in a position to cross-examine Ms. Manas on Friday. But we

12 considered that it's nothing short of scandalous that we received the

13 statement for the first witness so late in the day.

14 We're in your hands, but as I say, we are now willing to proceed

15 with that witness.

16 As far as the other statements are concerned, the position is the

17 same, that the Prosecution's motion stated that the witness's statements

18 have been disclosed to us. As you've heard from Mr. Wubben just now, they

19 haven't been. We received, I believe it was yesterday, the English

20 versions of statements of -- I'm not sure if I need to read the names --

21 JUDGE AGIUS: I think you can skip the names.

22 MR. JONES: We haven't received the Bosnian language versions.

23 But again we've considered the position and we are -- we don't object to

24 any of the witnesses. We can go ahead with them.

25 I mention all this to a certain extent by way of background

Page 188

1 because Your Honours will have seen, or your senior legal officer will

2 have seen letters copied between the parties in which the Prosecution

3 emphatically state that we've received -- that they are disclosing a

4 second time material to us which we have said we have not received before.

5 I would just make the point that given this history of the Prosecution

6 failing to meet its own deadlines, admittedly not disclosing statements

7 which they claim to disclose, they should be a little more circumspect

8 about saying that we've received things when we haven't. Our house is in

9 order; they should put theirs in order.

10 Having said that, that is our position and we are prepared to go

11 ahead. I also mention that by way of background because we've received a

12 revised witness list --

13 JUDGE AGIUS: I'm coming to that because I have my own questions

14 on that. Let's conclude this first part. In other words, do I take it

15 that there is now at this very moment no objection to the Prosecution's

16 motion to amend the Prosecution list of witnesses, to wit, by the addition

17 of the witnesses that are mentioned in the motion? In other words, we can

18 proceed with our decision which can be handed orally tomorrow after --

19 during the housekeeping section of --

20 MR. JONES: That's correct, Your Honour. Indeed you have seen

21 that for two of the witnesses we are happy even with their declarations

22 going --

23 JUDGE AGIUS: I am coming to those as well. That's Kelly and

24 Tedder.

25 MR. JONES: Yes, indeed.

Page 189

1 JUDGE AGIUS: But I also wanted to know, once you've brought this

2 matter up, whether we are to take this as meaning that you are not going

3 to cross-examination these two witnesses?

4 MR. JONES: That's right. But I should say that for the other

5 witnesses, we do, of course, hope to receive the Bosnian language versions

6 as soon as possible.

7 JUDGE AGIUS: Obviously, Mr. Jones. But I just wanted to make

8 sure that you do not want to cross-examine Messrs. Kelly and Tedder.

9 So Mr. Wubben and Madam Vidovic, we will decide this motion

10 tomorrow during the sitting. We will not be handing down a written

11 decision, we will restrict it to an oral one.

12 That basically brings me to the second matter. We had a list of

13 witnesses, the first batch of witnesses that the Prosecution intended to

14 bring forward. There are two main issues I would like to address and then

15 we will address the matter more thoroughly tomorrow, but we need to be

16 briefed on these today.

17 Number one is that in that list there is mention of two witnesses

18 that the Prosecution is seeking to bring forward under Rule 92(C), 92 bis

19 (C). We haven't authorised that the testimony of these witnesses be

20 tendered under Rule 92 bis (C) as yet. So perhaps you should enlighten us

21 on this issue first and foremost because we still have to debate whether

22 the testimony of these two persons can be presented in this case under the

23 conditions that you are pretending, Mr. Wubben. That's number one.

24 Second thing is that I was informed a few minutes before we started

25 the sitting -- when I say "I," we were informed, Judge Brydensholt and

Page 190

1 Judge Eser as well. We were having a meeting with our staff early this

2 morning and we were told that the list that you had handed and which was

3 made available up to yesterday was going to -- has been revised and that

4 today we will be receiving a fresh list. Is that correct?

5 MR. WUBBEN: That is correct, Your Honour.

6 JUDGE AGIUS: And what is the -- the substance of the change?

7 MR. WUBBEN: The substance of the change will be that from the

8 14th of October we start with Mr. Dragan Djuric, Simic subsequently,

9 Milenja Mitrovic, and Rankovic, that's from another crime base.

10 JUDGE AGIUS: Just make sure none of these witnesses enjoy

11 protective measures by the way of pseudonyms in particular. That's why I

12 have been avoiding mentioning names. So make sure that when you mention

13 names, none of them are protected witnesses.

14 MR. WUBBEN: When Your Honour asked me for the changes, it means

15 for me that we will turn over to another crime base and relate it to

16 another attack than first envisaged.

17 JUDGE AGIUS: Has the Defence been provided with a copy of the

18 revised list of first number of witnesses that you intend to bring forward

19 or not yet?

20 MR. WUBBEN: Yes. According to me, yes --

21 MR. JONES: We received it this morning.

22 JUDGE AGIUS: Do you have any comments?

23 MR. JONES: Yes, Your Honour.

24 JUDGE AGIUS: We haven't received it as yet, so we need to have it

25 in front of us before we can proceed with the debate.

Page 191

1 Is that the list or the statements?

2 [Trial Chamber confers]

3 JUDGE AGIUS: So we will start with your investigator, Ms. Manas,

4 on Friday. This is definitely not a protected witness.

5 MR. WUBBEN: Yes, Your Honour.

6 JUDGE AGIUS: This is, I take it, the investigator that we asked

7 for?

8 MR. WUBBEN: Yes, Your Honour.

9 JUDGE AGIUS: With --

10 MR. WUBBEN: Chain of custody.

11 JUDGE AGIUS: Going through the list of documents and confirming

12 to us provenance and chain of custody.

13 MR. WUBBEN: Yes, Your Honour.

14 JUDGE AGIUS: I thank you.

15 I think -- yes, is there anything you would like to add,

16 Mr. Jones?

17 MR. JONES: Yes, Your Honour, just two points. The first concerns

18 the expert witness, Dr. Gow.


20 MR. JONES: We made it very plain to the Prosecution that we would

21 require two days to cross-examine him. That might sound exceptional given

22 the length of the examination-in-chief, but firstly we have agreed and we

23 are happy for Dr. Gow to be led through a large part of his evidence in

24 chief precisely to save the court's time because we will need a lot of

25 time with him. It's a matter, I can go into it at another time, perhaps,

Page 192

1 but we have been clear; we require two days and this schedule doesn't

2 allow for that; it would allow us only to cross-examine him for the rest

3 of the 13th of October.

4 JUDGE AGIUS: We'll come to that later, Mr. Jones. However, once

5 you mention Mr. Gow, may I draw your attention, Mr. Wubben, Mr. Jones,

6 that it seems that Mr. Gow deals to a large extent in his expert report on

7 the aspect of the internationality of the conflict, which is no longer on

8 our table.

9 MR. JONES: We beg to differ. Perhaps it was originally drafted

10 with that context in mind, but essentially it's dealing with the whole

11 historical, military, political background.

12 JUDGE AGIUS: There is a lot on the internationality of the

13 conflict, particularly in regard to the involvement of the Serbian forces.

14 MR. JONES: We say that certainly doesn't drop out of the case as

15 irrelevant because it is a very large part of the military context. It is

16 something which, as will become apparent during our cross-examination, is

17 very important, certainly to our case. We wouldn't agree that since

18 there's no longer an international armed conflict being alleged that

19 therefore his testimony assumes any less relevance.

20 JUDGE AGIUS: We'll deal with that later.

21 MR. JONES: There's a second point perhaps I should make.


23 MR. JONES: Is the list we received before had the witnesses for

24 Ratkovici first, followed by the Jezestica witnesses. We have, of course,

25 been preparing for the last few days on the basis that the first witnesses

Page 193

1 would be testifying about Ratkovici. So of course, it creates additional

2 difficulties for us to adapt, but of course we are in your hands, we will

3 adapt.

4 JUDGE AGIUS: Basically, Mr. Jones, there is enough time within

5 which you can adapt, actually, because we have got the entire of next week

6 dealing with witnesses that have got nothing to do with events such -- or

7 crime based evidence. So I think that week can be --

8 MR. JONES: Unless I'm wrong, I think the first fact witness will

9 be testifying on Thursday, according to this plan. Next Thursday.

10 According to this plan. We would say he should be listed for the 15th so

11 that we have --

12 JUDGE AGIUS: Witness number 6. Are you talking about witness

13 number 6?

14 MR. JONES: Yes.

15 JUDGE AGIUS: Between now and then you have more than a week.

16 MR. JONES: Of course we're in trial and --

17 JUDGE AGIUS: Okay, but you have more than a week. And basically

18 that witness and the -- we should dispose of by -- either on that same --

19 no, we can dispose of that witness by Friday, and that leaves you again

20 more time for witness number 7 who then starts on Monday.

21 MR. JONES: Indeed, and we do say that witness should be listed

22 for the 15th of October so we have the 14th of October for Dr. Gow.

23 JUDGE AGIUS: I thank you.

24 So basically this -- yes, Mr. Wubben, I recognise you standing.

25 Anything else?

Page 194

1 MR. WUBBEN: No, thank you.

2 JUDGE AGIUS: There are just a couple of other matters. The first

3 one refers to the Prosecution confidential motion for leave to add

4 exhibits to its exhibit list. This, as you remember, we brought this up

5 during the pre-trial conference. During the pre-trial conference the

6 approach taken was that we should strive to have this determined before we

7 start the trial. And I also gave you the opportunity to file a reply

8 referenced to the objection raised by the Defence in relation to five of

9 the proposed additional exhibits. To my knowledge, and I stand to be

10 corrected, but to my knowledge until yesterday evening at least, I was not

11 aware of any reply on your part.

12 [Prosecution counsel confer]

13 JUDGE AGIUS: And I'm mentioning this not because it would deprive

14 me of any sleep but because, if this is the case, the deadline which you

15 have in terms of Rule 126 (B) bis would have lapsed.

16 MR. WUBBEN: Your Honour, we did indeed return to this matter.

17 Ms. Patricia Sellers will address this issue. Thank you.

18 JUDGE AGIUS: Yes, Ms. Sellers.

19 MS. SELLERS: Good morning, Your Honour. The Prosecution is well

20 aware of its obligation and yesterday we filed with the Registry motions

21 that answered the questions that the Judges raised and also that the

22 Defence raised in terms of the exhibit list. I believe that those

23 responses are available to the Defence and to Your Honours as of today as

24 soon as Registry as properly stamped them.

25 In addition to that, Your Honour, I would like to say that we have

Page 195

1 also filed the response that Your Honours directed us pertaining to the

2 pre-trial brief. There were some issues that you asked that we address.

3 Yes, that was also filed, Your Honour, and should be available to you.

4 JUDGE AGIUS: Okay, thank you.

5 Have you been served with these responses, Mr. Jones?

6 MR. JONES: Well, I'm just looking now at the Prosecution's reply

7 to our response on the motion for leave to add exhibits. So I've just

8 glanced at that. I don't know if it's something which Your Honour would

9 like me to deal with now.

10 JUDGE AGIUS: No, the only thing we were addressing this morning

11 was to establish whether a response had been filed, in which case

12 obviously we will address the matter tomorrow and, if possible, we will

13 even reach a decision tomorrow on these matters. But be prepared to

14 debate this particular issue tomorrow, all right?

15 MR. JONES: All right, Your Honour. And we have also received the

16 motion regarding the pre-trial brief. So we have those.


18 The last two things are the following: There is a Prosecution

19 confidential motion for witness protection -- for witness protection.

20 This was filed on the 28th of September. I'm just mentioning this motion.

21 If there is no objection for the protective measures being sought, then

22 you are invited to say so. It would spare you having to file a written

23 response and it would spare us having to having to hand down a written

24 decision. We will just decide it orally tomorrow.

25 MR. JONES: Well, Your Honour, we strenuously object to one of the

Page 196

1 witnesses, protective measures for one of the witnesses, and we will be

2 filing response by Friday.

3 JUDGE AGIUS: All right. So let's do it this way: Tomorrow

4 morning when we reconvene and start with the house -- finalising the

5 housekeeping matters that are still pending, you will indicate to us the

6 witness that you have -- you need to make submissions upon so that we can

7 decide orally on the protective measures for the others.

8 MR. JONES: Certainly, Your Honour.

9 JUDGE AGIUS: All right. Thank you.

10 Last matter on my agenda before we move to the next part is the

11 Rule 92 bis (C) testimony. This is a very serious matter that we cannot

12 possibly dispose of orally. It does require a thorough examination. I

13 would like you to think on whether you require a special sitting to

14 address this matter or whether you prefer to address it by means of

15 written submissions. We are happy with either of the two, but we will

16 need to decide this issue as early as possible since even the updated list

17 of witnesses still indicate two of those witnesses as of being amongst the

18 very first batch of witnesses to give evidence before this Tribunal. So

19 we need to decide whether the request of the Prosecution can be met or

20 whether it has to be turned down, in which case the Prosecution will

21 reconsider the other options that they may have.

22 MS. SELLERS: Your Honour, excuse me, may I address that issue?

23 We would like to inform the Defence at this point in time, too, that we

24 are formulating a written response. There is more information that we

25 would certainly like to impart to Your Honours concerning the witnesses.

Page 197

1 I believe there is an objection to the witness who is deceased where there

2 is absolutely no question. We are more than willing to respond to that,

3 and we have other information, other positions we would like to put

4 forward to Your Honours. We would ask at this time period that possibly

5 after receiving our written response, that we might discuss this matter in

6 a different session, that it might be a bit too premature in this instance

7 to go into some details that we would rather reserve after you've looked

8 at our written response. Thank you.

9 JUDGE AGIUS: In other words, I take it that you are initiating

10 the process --

11 THE INTERPRETER: Could the speakers please pause between because

12 you are overlapping and very fast --

13 MS. SELLERS: [Previous translation continues]... available to

14 Your Honours by tomorrow morning.

15 JUDGE AGIUS: Okay. I thank you, Ms. Sellers, and my apologies to

16 the interpreters. Again, since this is mostly an English-speaking Chamber

17 we do have the tendency not to allow a pause between one intervention and

18 the other and that makes the lives of the interpreters difficult. So my

19 apologies to them and let's try and avoid this happening again.

20 So that basically deals with all the matters that we needed to

21 raise.

22 Now, we have - Judge Brydensholt, Judge Eser and myself -

23 discussed the procedure that is to be followed here, and we advised you

24 that tomorrow we will be handing down orally a set of guidelines that

25 relate to admissibility of evidence, evidence and procedure in general,

Page 198

1 and also the conduct that is expected from each one of us and of course of

2 this trial. However, we discussed also the peculiarity of these

3 proceedings which have their origin in the confirmation of the indictment

4 which is then followed by the initial appearance of the accused. And it

5 is on that occasion that the indictment is read out, if at all, because

6 sometimes the accused waives his right to have the indictment read. In

7 all other domestic jurisdictions, basically what you have is that the

8 beginning of the trial itself is marked by either the reading of the

9 indictment, which in our case we are not going to do -- at least, we have

10 decided that the public particularly should be made aware of what the

11 accused is -- stands charged with, because as it is we are going to start

12 a trial and I very much doubt how many of the people present in the

13 gallery here, how many following the proceedings on transmissions in

14 Yugoslavia and elsewhere can understand unless they really go into the

15 records of this Tribunal and find out what the case is about.

16 So what we agreed was that today, before I give the floor to the

17 Prosecution to present the case, make their opening speech, I will -- on

18 behalf of Judge Brydensholt and Judge Eser and of myself, I will briefly

19 give you a summary of what this case is all about and what Mr. Naser Oric

20 is being charged with. It will not be a long presentation, but I think it

21 will help the audience understand better what are the significant features

22 of this case.

23 The accused, Naser Oric, is of course aware of the indictment,

24 also of the amendments made to the indictment, and he has pleaded not

25 guilty to all the counts that have been brought against him by the

Page 199

1 Prosecutor of this Tribunal.

2 The accused is a Bosnian Muslim. He was born on the 3rd of March,

3 1967, in Potocari, and Potocari is in the Srebrenica municipality, now

4 part of Republika Srpska. During the period relevant to the indictment,

5 that is the 10th of June of 1992 to the 20th of March of 1993, the accused

6 is alleged to have held various positions of authority within the local

7 police and the local military units. On the 8th of April, 1992, he was

8 appointed chief of the Potocari police substation, and on the 17th of

9 April, 1992, he became commander of the Potocari Territorial Defence unit.

10 On the 20th of May, 1992, he was appointed commander of the Srebrenica

11 Territorial Defence headquarters, which was renamed headquarters of the

12 Srebrenica Armed Forces on the 3rd of September of 1992. On the 1st of

13 July, 1992, he became a member of the War Presidency in Srebrenica. This

14 is a kind of a Crisis Staff.

15 In early November 1992 he became commander of the joint armed

16 forces of Srebrenica subregion. And finally, on the 12th of July, 1994,

17 even though this goes beyond the period of our indictment, the accused was

18 promoted to the rank of brigadier general.

19 The indictment that governs this trial relates to incidents which

20 the Prosecution alleges to have taken place between, as I said, the 10th

21 of June, 1992, and the 20th of March, 1993, in the municipalities of

22 Bratunac and Srebrenica. These municipalities are all located in Eastern

23 Bosnia, in Herzegovina, and basically they border with the Federal

24 Republic of Yugoslavia.

25 The accused is charged with six counts of violations of the laws

Page 200

1 and customs of war pursuant to Article 3 of the Statute. I'm going to

2 divide these charges into two main series of incidents to which they

3 relate. The first category of charges relate to murder and cruel

4 treatment. The Prosecution alleges that between the 24th of September,

5 1992, and the 20th of March, 1993, members of the military police that

6 were under the command and control of the accused detained several Bosnian

7 Serb individuals in the Srebrenica police station and also in the building

8 behind the Srebrenica municipal building.

9 It is alleged by the Prosecution that these members of -- these

10 Bosnian Serb individuals were subjected to physical abuse, serious

11 suffering, serious injury to body and health, and inhumane treatment. In

12 addition, the Prosecution alleges that, while in detention, 11 Bosnian

13 Serb individuals were subjected to such mistreatment. I'm going to

14 mention the names of these individuals: Nedeljko Radic, Slavoljub Zikic,

15 Zoran Brankovic, Nevenko Bubanj, Veselin Sarac, Ilija Ivanovic, Ratko

16 Nikolic, Rado Pejic, Stanko Mitrovic, Miloje Obradovic, Mile Trifunovic.

17 In addition, the Prosecution alleges that seven Bosnian Serb men were

18 killed. The names of these seven men are the following: Dragotin Kukic,

19 Jakov Djokic, Dragan Ilic, Milisav Milovanovic, Kostadin Popovic, Branko

20 Sekulic, and finally, Bogdan Zivanovic.

21 The accused is essentially charged with murder in count 1, murder

22 being a violation of the laws or customs of war pursuant to Article 3 of

23 the Statute of this Tribunal. The accused is also charged in relation to

24 these events in count 2 with cruel treatment, cruel treatment being a

25 violation of the laws or customs of war pursuant to Article 3 of the

Page 201

1 Statute. That's the first category of events to which two of the counts

2 relate.

3 The other category can be practically described as wanton

4 destruction of cities, towns or villages, or devastation not justified by

5 military necessity and plunder of public or private property.

6 Essentially, the Prosecution alleges that between the 10th of

7 June, 1992, and February 1993 Bosnian Muslim armed units under the command

8 and control of the accused engaged in various military operations against

9 the Bosnian Serb army - in the course of the proceedings we will be

10 referring to this army as the VRS - and that in the course of such

11 actions, they burned or otherwise destroyed and plundered 13 predominantly

12 Bosnian Serb villages and/or hamlets in the municipalities of Srebrenica

13 and Bratunac.

14 I'm going to mention these villages or hamlets: Ratkovici,

15 Bradevina, Ducici, Gornji Ratkovici, Jezestica, Osmace, Fakovici,

16 Radijevici, Divovici, Bjelovac, Sikirici, Kravica and Siljkovici.

17 In relation to these events, in count 3 and 5 of the indictment

18 the accused is being charged with wanton destruction of cities, towns or

19 villages, not justified by military necessity, this being a violation of

20 the laws or customs of war pursuant to Article 3 of the Statute. Always

21 in relation to these events in counts 4 and 6 of the indictment, the

22 accused is being charged with plunder of public or private property, this

23 also being a violation of the laws or customs of war pursuant to Article 3

24 of the Statute.

25 The accused is being charged under two modes of liability. In the

Page 202

1 first place, he's being charged criminally responsible by virtue of his

2 superior command. We refer to this as superior responsibility or command

3 responsibility. And this mode of responsibility is being charged or

4 alleged by the Prosecution by virtue of Article 7(3) of our Statute.

5 Basically I will explain what this means. The accused is

6 primarily charged with the crimes alleged in the indictment pursuant to

7 this mode of liability. Basically this means that the Prosecution alleges

8 that the accused, by virtue of his position and authority as commander,

9 had de facto and de jure command over all units that were operating in his

10 area of command and responsibility and that he exercised effective control

11 over his subordinates. The Prosecution therefore alleges that the accused

12 is criminally responsible as a superior for the acts of his subordinates,

13 both at the Srebrenica police station and in the building behind the

14 Srebrenica municipal building. Basically this applies to the crimes of

15 murder and cruel treatment that is counts 1 and counts 2 that I mentioned

16 to you earlier.

17 The Prosecution is also alleging superior command responsibility

18 in relation to the military operations in the 13 predominantly Bosnian

19 Serb villages and hamlets that I mentioned earlier on. And therefore,

20 superior command is also being invoked in relation to counts 3 and counts

21 4.

22 Overall the Prosecution is also charging the accused with

23 individual criminal responsibility. This is something different. And

24 this kind of criminal responsibility is contemplated and regulated by

25 Article 7(1) of our Statute. I will very briefly explain what this means.

Page 203

1 Basically, the Prosecution is alleging that the accused is

2 individually criminally responsible pursuant to the Article or sub-Article

3 that I have just mentioned, namely for having instigated and aided and

4 abetted through his acts of commission or through his acts of omission the

5 crimes of wanton destruction of cities, towns, or villages not justified

6 by military necessity - that's in count 5 - and plunder of property in the

7 course of military operations in the villages of Fakovici on the 5th of

8 October, 1992; Bjelovac, between the 14th and 19th of December, 1992; and

9 Kravica and Jezestica on the 7th and 8th of January, 1992 [sic]. These

10 events are contemplated in count 6 of the indictment. And that explains

11 to the public the substance of the case which we will be hearing.

12 Tomorrow, as I explained earlier, the first part of the sitting

13 will be dedicated to guidelines and then we will organise the rest of the

14 trial and you will also have an indication of how long the Prosecution

15 case is expected to last. And this will be a time limit which you are --

16 you will be asked to stick to as much as possible.

17 So having said so, I now invite the -- Mr. Wubben to open -- make

18 his opening statement on behalf of the Prosecution. We have until the

19 rest of the morning, of the sitting, to finish.

20 I take it that you require about 90 minutes?

21 MR. WUBBEN: About 60 to 90 minutes.

22 JUDGE AGIUS: 60 to 90 minutes.

23 And Mr. Jones?

24 MR. JONES: 90 minutes.

25 JUDGE AGIUS: So that's perfect. I think we should be in a

Page 204

1 position to conclude today.

2 Yes, Mr. Wubben.

3 MR. WUBBEN: Your Honours, this is a case about a young commander

4 who became a warlord. In accepting his role as commander, he amassed

5 authority and power. War crimes of murder, wanton destruction, and

6 plunder were committed under his command. The Prosecution opens its case

7 today against the accused Naser Oric, former bodyguard, former police

8 officer, former brigadier general from the Srebrenica municipality of

9 Bosnia and Herzegovina. The facts of this case originate in the

10 municipality and surrounding areas of Srebrenica located in the far

11 Eastern Bosnia that borders on Serbia.

12 In 1992, the former Yugoslavia witnessed the crushing clash of

13 three groups separated by their political vision, ethnic identification,

14 and religious practices. Armed conflict engulfed the entire country.

15 Atrocious crimes were committed by and against Bosnian Muslims, Bosnian

16 Serbs, Bosnian Croats as the country spiraled out of control and descended

17 into inter-ethnic fighting, as shown on the map that you will see.

18 The nations of Serbia and Croatia backed their proxy sides of the

19 struggle and entangled themselves into the inter-ethnic destruction of the

20 Yugoslav peoples. Lives were lost, families destroyed, livelihoods

21 ruined. Ethnic cleansing, the removal of inhabitants from their

22 territories, brutalised and spared no group. The territorial divisions

23 followed the ethnic divide, also shown on the map. Places such as Foca,

24 Brcko, Mostar, Vukovar, and Srebrenica resound with the horrors of ethnic

25 division and atrocities.

Page 205

1 The Tribunal was created by the Security Council to redress the

2 breach of peace on behalf of the international community as a whole. The

3 international community encompassed the citizens of the former Yugoslavia.

4 A judicial mandate was provided to examine the allegations of war crimes,

5 crimes against humanity, and genocide committed during the armed conflict.

6 The Tribunal was mandated to judge individuals accused of international

7 crimes recalling the maxim that crimes, international crimes, are

8 committed by individuals. Neither nations nor ethnic groups are

9 collectively accused nor collectively condemned for such crimes.

10 In March 1992, the Yugoslav army, the JNA, together with the Serb

11 Territorial Defence of the Republic of Srpska army, captured and occupied

12 the town of Srebrenica. The determined offensive power of the territorial

13 offence units of the Srebrenica municipality forced the retreat of the JNA

14 and Bosnian Serb forces out of the Srebrenica town.

15 Starting in May 1992 the accused, Naser Oric, became the

16 instrumental soldier in forcing the retreat of the Bosnian Serb army and

17 leading the attacks by the Bosnian army. By January 1993, the Srebrenica

18 pocket, or enclave, was bare of Bosnian Serbs and exists thus. In the

19 winter of 1993 the Bosnian Serb army began to regroup after a series of

20 defeats by soldiers under the military command of Oric. By April 1993,

21 UNPROFOR undertook the demilitarisation of the Srebrenica zone.

22 Your Honours, by 1992 three facts were not in dispute: First,

23 from 1992 and until 1995 Naser Oric repeatedly accepted and assumed

24 increased and widening military command of soldiers. Second, Naser Oric

25 crucially, as a commander, was bound by laws of war, both by customary

Page 206

1 international law and by Bosnian decrees that incorporated those customary

2 principles into the national governing law. Third, Naser Oric crucially,

3 as a soldier and a commander, was duty-bound to follow Bosnian army

4 military orders that specifically directed him to obey international law.

5 Naser Oric, a former JNA corporal, a personal security guard, and then a

6 police officer, voluntarily and knowingly accepted and assumed wartime

7 command and responsibility for soldiers in the army of Bosnia and

8 Herzegovina.

9 The Prosecution's case against Naser Oric focuses on his acts and

10 his failure to act when he commanded the Srebrenica Municipal Territorial

11 Defence, the Srebrenica armed forces, the Srebrenica subregion, the 8th

12 Operational Group, and later, the 28th Division of the 2nd Corps of the

13 army of Bosnia and Herzegovina.

14 The Prosecution will show that: As a commander, Oric did not obey

15 or enforce the laws of war when his troops attacked Serb villages in the

16 Srebrenica area; he did not enforce the laws when his soldiers destroyed,

17 burned, and looted villages. Naser Oric selectively applied the Geneva

18 Conventions. The accused invoked the law to detain children and females,

19 yet he ignored the Geneva Conventions and allowed his soldiers to

20 brutalise Serbian male prisoners. The accused failed, in general, to

21 prevent and rein in the lawlessness of his soldiers and failed

22 specifically to punish his soldiers who committed crimes against Bosnian

23 Serbs.

24 The Prosecution's evidence will clarify why the accused allowed

25 his soldiers to proceed with impunity. The criminality suited him and

Page 207

1 furthered the accused's war policy and aims.

2 Oric's aim was to clear the Bosnian Serb dwellers from the

3 Srebrenica territory, to ensure that Serb villagers and peasants would not

4 return to their homes. His soldiers plundered Bosnian Serb property and

5 destroyed dwellings and usually burned what was left standing. Oric's

6 soldiers repeatedly carried out a three-step plan: Step one, soldiers

7 attacked the village; step two, after the fighting ceased, soldiers and

8 civilians plundered the village; step three, soldiers and civilians

9 destroyed the village, usually by burning. In the midst of the three-step

10 process, many villagers were killed.

11 The Trial Chamber will notice a pattern of fighting for food and

12 fighting with fire. Oric employed another policy for wartime prisoners.

13 Male and female Bosnian Serbs were kept in Srebrenica detention

14 facilities. Naser Oric's guards, police officers subordinated to him,

15 brutalised and terrorised the male detainees, leading to the death of

16 seven prisoners. The accused knew about and tolerated the beatings, the

17 brutalisation and the deaths of the male prisoners. Oric only kept the

18 Serb male and female prisoners to trade for Muslim prisoners or dead

19 Muslim soldiers. Clearing the Serbs from Srebrenica municipality relieved

20 Oric of having to consider, as occupying commanders do, the needs of a

21 large-scale detention for occupied Bosnian Serb villagers. The relatively

22 moderate number of Bosnian Serb prisoners gave Naser Oric the

23 manoeuvrability to broker prisoner exchanges with the Bosnian Serb army.

24 Hence, the accused had no reason in his plan to punish his subordinates

25 for the beatings and killings of the Serbian male detainees as long as he

Page 208

1 kept some male prisoners alive for exchange.

2 Oric failed to obey or to enforce the laws and customs of war,

3 whether commanding on the battlefield or being in command of the detention

4 facilities. Laws presented more of an irritant than an obligation for

5 Oric. The office of the Prosecutor wishes to stress that the laws of

6 armed conflict are customary and in their most basic application are

7 binding upon all soldiers during wartime. The laws exist to be enforced

8 now at this very minute while I address Your Honours. All soldiers and

9 all commanders who, while we speak, are engaged in armed conflict, are

10 duty-bound to respect, obey, follow, and enforce these principles.

11 Starting in 1992 and throughout the winter and spring of 1993,

12 Eastern Bosnia, including the municipalities of Srebrenica, Bratunac, and

13 Vlasenica were swallowed up in heightened armed conflict. Thousands of

14 Bosnian Muslim refugees swarmed into the town of Srebrenica. Thousands of

15 Bosnian Serbs fled the town of Srebrenica. War was accompanied by chaotic

16 and unstable circumstances. Severe humanitarian conditions prevailed.

17 Death, hunger, disease, displacement, and fear, anger, and immense sorrow

18 abounded. The Prosecution underscores the gravity of the war-related

19 circumstances in Srebrenica to Your Honours on the Trial Chamber to stress

20 an essential principle. The laws of armed conflict are specifically

21 designed to come into force and be applied during wartime, during those

22 moments when societies devolve into killings and destruction and mayhem.

23 In particular, brigadier and wartime commanders are specifically

24 charged with ensuring that war is regulated by the very laws of armed

25 conflict that concern this Trial Chamber. Naser Oric understood this

Page 209

1 wartime obligation but consistently opted time and time again to ignore

2 and thus breach his responsibility as a commanding officer. Your Honours

3 must question the circular logic of the accused. Is it because he was

4 fighting a war that Naser Oric was too busy to apply the laws of war? The

5 accused knowingly violated, distorted, and ignored the law because it

6 served his purposes. Disregarding the law of war bode well for the mode

7 and manner that he wanted to wage battle and how he ordered his men to

8 fight the war. Absent the weight of law, Oric became lawless.

9 From June 1992 until March 1993, Oric met with lawless success.

10 He routed the Bosnian Serb army and he cleared Srebrenica of its Bosnian

11 Serb inhabitants. By March 1993, Oric exchanged all Bosnian Serb

12 prisoners, those who were still alive, from the Srebrenica detention

13 centre. Disobeying the laws of armed conflict offered Naser Oric an

14 advantage. Engaging in optional obedience to the law increased Oric's

15 military and political power. Naser Oric became the man with uncontested

16 command in Srebrenica and undisputed control of Srebrenica. Did Naser

17 Oric know that his conduct violated international law? The Prosecution's

18 evidence will show that he did. Did he know that his soldiers destroyed

19 and burned the Bosnian Serb villages? The Prosecution's evidence will

20 show that he did.

21 Naser Oric ordered soldiers not to burn the village until they

22 were plundered. On one occasion, Naser Oric ordered the soldiers not to

23 burn the village on the first day because his soldiers needed to spend the

24 night in the houses. Then the houses and barns could be torched. Did he

25 know about the burning? The Prosecution's evidence will show that Oric

Page 210

1 told General Sefer Halilovic in June of 1993 that the Bosnian Serb army

2 would "burn like we did in January of 1993."

3 Did he know about the plunder? The Prosecution's evidence will

4 show that he told Muslim soldiers that they would attack for the food, in

5 particular on Orthodox Christmas. Naser Oric was advised by Muslim

6 officers to stop the burning, the looting, the pillaging. He listened but

7 did do nothing. Did Naser Oric know that the prison guards beat and

8 terrorised the detainees? The Prosecution's evidence will show that Naser

9 Oric saw the brutalised prisoners and chose not to stop the beatings. He

10 knew the violate behaviour of his soldiers, such as the brutal soldier

11 named Kemo. Did he know about the cruel treatment and the deaths in the

12 prisons? Oric spoke with the detainees about the dead prisoners who could

13 no longer be used for exchange. An angered Naser Oric, surrendered by his

14 prison guards, even kicked and struck detainees. Fellow Muslim fighters

15 implored Naser Oric to utilise experienced army officers to maintain

16 discipline and compensate for his inexperience. Fellow Muslim fighters

17 resigned from the Srebrenica armed forces headquarters' staff to protest

18 of the commanders ignoring the lawlessness of Muslim soldiers in

19 Srebrenica. Naser Oric rejected the advice to maintain discipline and

20 compensate for his inexperience.

21 Naser Oric knew of the chaos because he inflamed it and it led to

22 resignations at the headquarters staff. Fellow Muslim fighters advised

23 Naser Oric to set up military courts in Srebrenica to address the

24 widespread lawlessness. Naser Oric refused to do so. When he set up a

25 military tribunal, it was not to judge the crimes against Bosnian Serbs

Page 211

1 but to remove the Muslim military enemies, his enemies. Of course Naser

2 Oric knew about the crimes, but he knew -- he chose not to investigate nor

3 punish his subordinates. He did not stop civilians from participating in

4 crimes alongside of his soldiers. Rather, the Prosecution will show, that

5 he promoted and facilitated and abetted civilian crimes.

6 Naser Oric was not merely a commander. In the field and at

7 headquarters, he held uncontested military authority in Srebrenica.

8 Because of his membership on the War Presidency, he held uncontested

9 political power. Naser Oric was the reigning authority, the reigning

10 lord, a warlord. What is a warlord? The warlord is a supreme military

11 leader exercising civil power and accountable to no one.

12 The Prosecution would like to review the charges against the

13 accused and express its position on a few but important points of

14 international law that will guide Your Honours' evaluation of the

15 evidence.

16 It is self-evident that the Prosecution appreciates the burden

17 upon her and that she is bound to prove in a case against Naser Oric the

18 standard beyond a reasonable doubt. The Prosecution shall discharge this

19 burden. The Prosecution has charged Naser Oric in count 1 with murder.

20 Seven Bosnian Serb males died in Srebrenica detention facilities. Between

21 September 1992 and March 1993, prisoners captured during the attacks were

22 kept in two locations: First in the Srebrenica police building; later

23 men, women, and children were held in cells in the building behind the

24 Srebrenica municipal building.

25 In September of 1992 a prisoner by the name of Dragutin Kukic was

Page 212

1 beaten to death in the Srebrenica police station by Kemo, a notoriously

2 cruel guard. Naser Oric knew about Kemo and knew about Kukic's death.

3 Another prisoner, Kostadin Popovic was imprisoned after the attack on

4 Kravica in January 1993. Kostadin Popovic's body was exhumed.

5 Dr. Stankovic performed an autopsy that concluded that Kostadin Popovic's

6 head was split in two. His death was caused by cerebral damage, wounds

7 that are consistent with beatings.

8 Naser Oric knew about the deaths because there were prisoners who

9 could not use these prisoners in exchange for captured Muslim soldiers.

10 Other Serbian prisoners, namely Jakov Djokic, Dragan Ilic, Milisav

11 Milanovic, Branko Sekulic, and Bogdan Zivanovic died in detention from

12 daily brutally beating. Each man died because of the blows of the

13 subordinates of Naser Oric. The male prisoners who did not die still did

14 not escape unending cruelty.

15 In count 2, the Prosecution charged the accused with cruel

16 treatment for the beatings with iron bars and wooden poles, the forced

17 extraction of teeth, and broken jaws. On numerous occasions the men were

18 rendered unconscious. One prisoner remembers that "every one of us were

19 bloody. Blood was everywhere; on the floor, on the walls. Blood came

20 from everyone and was on our clothes."

21 There were also female prisoners. Yes, it is in the Prosecution's

22 evidence that Naser Oric imprisoned women and children in another cell

23 down the hallway from where the males were held. One 12-year-old girl

24 stated that, "I could hear the noises of the men being beaten in the other

25 cell. I recognised my grandfather moaning in pain. Every night and every

Page 213

1 day the men were beaten. I could hear the noises and it was horrible."

2 The evidence will demonstrate that Naser Oric knew about the

3 murder of male prisoners and the cruel treatment inflicted by the guards

4 upon those males that inexplicably survived the detention. At times the

5 guards allowed civilians to come into the cells to assault the prisoners.

6 Oric was often in the prison. He took pleasure in strolling down the

7 hallway of the prison. He would tell detainees, male and female, who he

8 was and the power that he had. Oric asked about the dead prisoners and

9 knew about the beatings. The male detainees feared him because Naser Oric

10 knew about the wild and violent behaviour of his guards like Kemo. He let

11 Kemo stay. Oric could use his own eyes to see the faces of the male

12 prisoners. He could look at them when he arranged their exchanges. Look

13 at faces of two Serb prisoners a few days after their exchange; just use

14 your eyes.

15 In counts 3 and 5 the Prosecution accused Naser Oric of the wanton

16 destruction of cities, towns, and villages that are not justified by

17 military necessity. The predominantly Bosnian Serb towns of Rakovici,

18 Jezestica, Fakovici, Bjelovac, and Kravica, and their surrounding hamlets

19 were attacked by Muslim soldiers. The military objective of the fighting

20 army of Bosnia and Herzegovina forces, ABiH, in Ratkovic was to gather

21 weapons, gather food, expel the inhabitants, and move the Muslim front

22 lines to the other side of the Bosnian Serb villages. Was there a

23 military necessity to burn the villages? As emphasised earlier, the

24 Muslim soldiers subordinate to Naser Oric burned the homes, barns,

25 buildings, and sheds of these rural dwellers after the fighting ceased and

Page 214

1 the plunder was complete. Destruction was extensive.

2 For example, in October 1992, as part of the attack on Fakovici

3 and the neighbouring hamlets of Radijevici and Divovici, 80 per cent of

4 the houses were destroyed by burning. In December 1992, half of the

5 houses in Bjelovac and all of the houses in Sikirici were destroyed by

6 fire. The evidence will prove that in January 1993 the whole village of

7 Jezestica was burnt. The dwellings are not safe to shelter the Muslim

8 refugee population. The cremated houses were to be home to no one and

9 only served to dissuade their owners from returning home and living in the

10 municipality.

11 The Prosecution asserted earlier that Oric torched and destroyed

12 the towns and hamlets to further his war plans, the three-step plan. The

13 constant absence of distinguishing between military targets and civilian

14 objects will prove that the destruction was unjustified by military

15 necessity. Upon routing the opposing army, the Bosnian Serb troops, there

16 lay no justification for the entire villages be destroyed. The armed

17 presence of the village guards, consisting of a small number of elderly

18 men left at home during the war, did not justify the torching of the

19 hamlets.

20 In counts 4 and 6 of the indictment the Prosecution accused Naser

21 Oric of the plunder of public or private property. After the battle was

22 over but before the fires were set, Bosnian Serb dwellings and buildings

23 were systematically plundered. Muslim soldiers and civilians stripped the

24 houses. Livestock and food were pillaged by soldiers as a final act of

25 battle. Only pigs were destroyed and left. Goods were not temporarily

Page 215

1 requisitioned, they were outrightly plundered, permanently depriving their

2 owners of ownership.

3 Plunder was a wartime policy. Plunder and looting Serb villages

4 further ensured that the Bosnian Serbs would not return home even to

5 recover lifelong possessions. Plunder was a policy also because it served

6 to feed the Bosnian Muslim refugees in Srebrenica. Plunder was a policy

7 because it served to increase the supply of food for ABiH soldiers.

8 Plunder was a policy even when humanitarian aid was delivered. Kravica

9 was attacked for food on Orthodox Christmas. Plunder was not a war crime,

10 according to Naser Oric, but a war policy.

11 Are these ordinary crimes? Was the plunder only simple theft,

12 simple property damage, and not serious crimes nor violations of the laws

13 or customs of war? The Prosecution's position is that the ransacking,

14 looting and pillaging of dwellings, houses, work places, barns, and sheds,

15 the removal of furniture, stoves, family keepsakes, jewellery, money, and

16 other possessions violated Article 3 of the Tribunal's Statute. The

17 plunder of cattle and other farm animals, farm tools, and crops tractors,

18 cars and wagons, constituted a net loss of material wealth for the victims

19 and destroyed their ability to earn a livelihood in the future. The loss

20 constituted a great value to the owners. The consequences of the loss for

21 the owners were great.

22 The laws of war protects property. Requisition of goods, a

23 legitimate wartime deed, permits the use of public or private property but

24 only when compensated by an occupying army. Requisition is the opposite

25 of theft, plunder, and looting. Recognition of the distinction between

Page 216

1 crimes of plunder and permissible requisition are specifically designed to

2 halt what Naser Oric unleashed rampaging for war booty. Respect for that

3 distinction and obedience for such laws became too inconvenient for Naser

4 Oric.

5 Superior responsibility is found in Article 7(3) of the Statute.

6 It informs that a superior, such as a commander, is liable for the crimes

7 of his subordinates, if he knew or had reason to know that they were about

8 to commit a crime under the Statute and failed to take reasonable and

9 necessary measures to prevent the crimes or to punish the perpetrators

10 thereof.

11 Naser Oric was the superior, a commander of the Muslim troops in

12 the Srebrenica municipality. He assumed command and amassed ever

13 increasing, not decreasing, powers. The troops under his direct command

14 numbered upwards of 10.000.

15 Commencing on the 20th of May, 1992, he became the commander of

16 the Srebrenica TO. Sefer Halilovic confirmed - did not appoint but

17 confirmed - Oric's position as the commander of the Srebrenica TO on 27

18 June, 1992.

19 On 1 July, 1992, Naser Oric became a member of the Srebrenica War

20 Presidency in his capacity as commander. His de jure military command

21 merged with his de facto powers that included growing political influence

22 and control of civilian politics in Srebrenica.

23 In November 1992, Oric was appointed commander of the subregion

24 Srebrenica that covered areas in the surrounding municipalities of

25 Bratunac, Vlasenica, and Zvornik.

Page 217

1 In January 1994, Oric was named commander of the 8th Operational

2 Group of Srebrenica headquarters of the Army of Bosnia and Herzegovina.

3 Oric remained in that position until he was appointed brigadier general on

4 12 July 1995. Until August 1995, Oric remained the commander of the

5 renamed 8th Operational Group in what was then called the 28th Division of

6 the ABiH.

7 As commander, successively Oric had the obligation to ensure that

8 his subordinates did not violate the laws of armed conflict. It was his

9 obligation to prevent the commissions of crimes, and if those crimes

10 occurred, he was to punish his subordinates for such crimes. This is in

11 accordance with case law.

12 A recent appellate decision re-affirmed these precepts of Article

13 7(3)'s superior responsibility. In addition to the superior/subordinate

14 relationship, it holds that the responsibility of command are only

15 enforceable if the commander knew or had reason to know that subordinates

16 were about to commit crimes or that they had already committed these

17 crimes.

18 In the former case, Oric had a duty to prevent; in the latter

19 case, he had a duty to punish. Our evidence will show that Naser Oric

20 knew of the destruction of the towns and villages. Naser Oric arranged

21 for the plundered goods to be taken and brought to Srebrenica. He or his

22 soldiers divided up the plunder. Our evidence will show that he had

23 actual knowledge for another reason. The burning and destroying lay

24 beyond military necessity. While in certain places, the Muslim forces

25 engaged with the Bosnian Serb army or the local town guard, the fighting

Page 218

1 that is mentioned in the indictment will show that the Muslims completely

2 routed any armed opposition from the villages. When these villages were

3 emptied of opposing fighters or local guards and absent of armed danger,

4 the Muslim soldiers torched and destroyed houses. These acts did not win

5 the battles; they were after and beyond the necessity of the battles.

6 The Prosecution will show that the actual knowledge of Naser Oric

7 was apparent for another obvious reason. Fire for food was a policy.

8 Oric, if not a reluctant initiator, he became an avid advocate of this

9 policy. The Prosecution's evidence will show that in addition to having

10 been present at some of the attacks and seeing the actual destruction,

11 Oric had firsthand knowledge of the damage. Also, Bosnian Muslims spoke

12 to Oric about the burning and the escalating destruction of the

13 surrounding Serb villages along with the plunder that inflated and

14 devolved into black-market resources.

15 JUDGE AGIUS: Whenever it's convenient for you, Mr. Wubben. I

16 hate to stop you halfway, but we need to have a short break. Choose your

17 time. If you think you can stop here and we will resume immediately after

18 the break, it's okay. If you need to finish the point you are making, you

19 can go ahead now. Let's say we'll try and stop in the next 2 or 3

20 minutes.

21 MR. WUBBEN: It's perfectly timed.

22 JUDGE AGIUS: I thought so, that's why I interjected, actually. I

23 thank you, Mr. Wubben. We'll continue after the break. We'll have a

24 break of 25 minutes. Thank you.

25 --- Recess taken at 10.31 a.m.

Page 219

1 --- On resuming at 11.01 a.m.

2 JUDGE AGIUS: Yes, Mr. Wubben. You may proceed, Mr. Wubben.

3 MR. WUBBEN: Thank you, Your Honour. As I stated, the

4 Prosecution's evidence will show --

5 [Technical difficulty]

6 JUDGE AGIUS: One moment. We have again the same problem.

7 Is it working now? Thank you.

8 I apologise to you, Mr. Wubben. I know how bad this can be, but

9 -- I wouldn't like to interrupt anyone, but anyway, please proceed.

10 MR. WUBBEN: No problem at all, Your Honour.

11 As I stated, the Prosecution's evidence will show that Oric had

12 firsthand knowledge of all the damages I spoke of. Also, Bosnian Muslims

13 spoke to Oric about the burning and escalating destruction of the

14 surrounding Serb villages along with the plunder and black market as a

15 consequence. In addition, Oric had acquired notice or received

16 information that could put him on guard that crimes such as looting,

17 burning, and the mistreatment of detainees would occur. The accused saw

18 the bloodied bodies and faces of detainees. He knew that prisoners had

19 died under the watch of his guards. Oric knew that the leadership of the

20 2nd Corps command had warned that unlawful conduct violated the army

21 regulations from May 1992 onwards.

22 The Prosecution's evidence will show that he failed to prevent or

23 stop the crimes and that he failed to punish or discipline his

24 subordinates in the TO for those crimes of destruction and plunder. He

25 failed to prevent the crimes, starting with the attack in Rakovici in

Page 220

1 June. He failed to punish since the Rakovici attack in June and he

2 continually failed throughout the summer, fall of 1992, and the winter of

3 1992/early 1993. Naser Oric failed when he commanded the Srebrenica TO

4 and failed when he commanded subordinates in the Srebrenica armed forces,

5 and failed when he commanded the subregional group. He failed to prevent

6 and to punish.

7 The accused failed to punish the subordinates who destroyed and

8 burned and looted. Why? Oric as a commander had been ordered by

9 Lieutenant Colonel Knez not to burn or loot. Oric failed to punish

10 because he did not disobey him by burning and by looting. On the

11 contrary, his subordinates carried out his war plans and policies. Naser

12 Oric maintained effective control over his subordinates. He issued orders

13 and they were followed. He promoted, rewarded, and disciplined

14 subordinates. He was feared by soldiers and civilians because of the

15 effective control that he maintained.

16 A commander is required to take the reasonable measures to prevent

17 and to punish. To have effective control is, in essence, to have the

18 ability to exercise and use reasonable measures available to prevent and

19 punish. Oric could have issued orders and pushed forward decrees to

20 prevent civilians and subordinates from burning and committing plunder.

21 He could have ordered the prison guards to stop the abuse of the Serb

22 prisoners, but he didn't.

23 Naser Oric failed to create reasonable measures such as military

24 courts or disciplinary panels in Srebrenica in 1992. He refused to use

25 his police powers to arrest and to investigate and to charge his

Page 221

1 subordinates with war crimes or charge the civilians who accompanied those

2 subordinates. Oric did not use the military judicial mechanism available

3 to him in Tuzla. Oric did not report the crimes to his superiors, such as

4 Colonel Knez or General Halilovic. Oric did not use the reasonable means

5 available to him in 1992, 1993, 1994, or 1995, the means to punish the

6 crimes charged in the indictment.

7 The murder, destruction, and plunder took place within the context

8 of an armed conflict governed by Article 3 of the Statute. Each of these

9 war crimes - murder, destruction, and plunder - are proscribed

10 irrespective of the nature of the war or the armed conflict. Starting

11 with the first appeals decision of this Tribunal and until the most recent

12 Trial Chamber decision, Judges have questioned the logic of sparing only

13 victims of international crimes while being blinded at the pain of victims

14 of internal armed conflicts. This has puzzled and troubled this

15 judiciary.

16 In this Tribunal, the Hadzihasanovic Trial Chamber examined

17 evidence of wanton destruction and plunder. They had to determine if such

18 crimes could only be recognised in an international armed conflict, much

19 like Your Honours' task. They rejected the proposition of the Defence in

20 that case and answered in the affirmative. Wanton destruction and

21 plunder, two crimes governed by Article 3 of the Statute, happen and can

22 be prosecuted in international armed conflict as well as internal armed

23 conflict. That is also the Prosecution's position.

24 The Prosecution will present expert and eyewitness testimony of

25 the armed conflict. Evidence will prove that Bosnia Herzegovina as an

Page 222

1 independent country engaged in protracted armed conflict with the

2 Republika Srpska and that Serbia encroached on the territory of

3 Bosnia-Herzegovina in April and May 1992 intermittently thereafter while

4 the fighting with the Bosnian Serb army continued. Bosnia officially

5 declared war on 20th June, 1992.

6 The TO, the Srebrenica armed forces, and the 2nd Corps of the Army

7 of Bosnia-Herzegovina were engaged in armed conflict in the municipality

8 of Srebrenica as well as neighbouring municipalities of Vlasenica,

9 Bratunac, Skelani, Zvornik during 1992, 1993, and until the end of

10 hostilities and the drawing up of the Dayton Accords. Prosecution

11 witnesses who participated in the armed conflict as members of the ABiH

12 will also confirm the existence of an armed conflict on the territory of

13 Bosnia in the municipality of Srebrenica and surrounding areas. The

14 attacking, plunder, and burning of the villages and towns not only had a

15 nexus to the armed conflict, the Prosecution's evidence will conclusively

16 show that these crimes were generated by Naser Oric's war plans and

17 policies.

18 Prisoners that met their death in the Srebrenica detention cell

19 were first captured after the armed attacks on their villages. The

20 prisoners who were killed, as well as the men, women, and children who

21 survived detention, suffered imprisonment because of their capture during

22 the war. Each was captured, guarded, and eventually released by enemy

23 soldiers. The Prosecution's evidence securely establishes the nexus of

24 the crimes to the armed conflict.

25 The Prosecution would like to briefly address the subject of

Page 223

1 exhibits and documentary proof.

2 During our case in-chief, the Trial Chamber will be asked to

3 examine exhibits that are the paperwork of war, such as military orders,

4 military reports, rules and regulations of military courts and

5 disciplinary boards, as well as letters, telegrams, interrogation notes,

6 soldier diaries, and medical certificates. The Trial Chamber will have to

7 consider the ultimate weight of such documents. The Prosecution asks that

8 Your Honours accept and consider the documentary evidence but that Your

9 Honours, as the trier of facts, not be distracted by the camouflage net

10 that Naser Oric will try to cast over the documents.

11 The Prosecution will dutifully produce reliable, relevant, and

12 probative documents that come before Your Honours through a chain of

13 custody.

14 One document is an order that originates from Lieutenant Colonel

15 Knez, commander of the 2nd Corps of the ABiH. The order is dated 28th of

16 May, 1992, and was specifically used to inform unit commanders of the TO

17 of proper military conduct.

18 It ordered commanders to, and I quote: "First, prevent burning and

19 looting of movable property of the population during and after combat

20 actions; second, prohibit all forms of physical abuse and massacre of the

21 population; third, treat enemy soldiers and commanders who are taken

22 prisoner or wounded humanely and correctly, in the spirit of the Geneva

23 Conventions and the rules of the international laws of war."

24 The Prosecution will prove that Naser Oric was the commander of

25 the Srebrenica TO on the 28th of May, 1992, and thus directly subjected to

Page 224

1 the command and the orders issued by Lieutenant Colonel Knez. An order

2 dated 20th of May, 1992, signed by Naser Oric as the commander of the

3 Srebrenica TO shows that Oric appointed soldiers to the Srebrenica

4 Territorial Defence. The Prosecution handwriting expert examined this

5 order and confirmed that it is highly probable that Naser Oric signed this

6 order.

7 The Prosecution con --

8 MR. JONES: Your Honour, I'm very sorry to have to get to my feet

9 but we're entering into an extraordinary level of detail in an opening

10 speech, and my concern is if we will have time --

11 JUDGE AGIUS: You will certainly have the 90 minutes that you

12 required, Mr. Jones.

13 MR. JONES: Thank you --

14 JUDGE AGIUS: And even more if that is required in the wake of

15 some of the issues that are being brought up during the opening.

16 MR. JONES: I'm obliged, Your Honour.

17 JUDGE AGIUS: This is important, so I will give you all the time.

18 Thank you.

19 MR. WUBBEN: I'm a little bit confused. Let me start again --

20 JUDGE AGIUS: Yes --

21 MR. WUBBEN: I know where I am, but to make my point.

22 JUDGE AGIUS: You were just saying that you had this document

23 examined by a calligraphic expert and that he confirmed to you that it is

24 highly probable - that's the words you used - that it was signed by the

25 accused.

Page 225

1 MR. WUBBEN: I consider this as an introduction, Your Honour.

2 Thank you very much.

3 So the Prosecution contends that Naser Oric was a commander by the

4 28th of May, 1992, and as such was subject to the direct orders of

5 Lieutenant Colonel Knez not to loot, burn, or kill and to treat prisoners

6 humanely according to the Geneva Convention and the international laws of

7 war.

8 Other documents and exhibits, such as telephone intercepts of

9 Naser Oric's conversations with Sefer Halilovic, or video footage of the

10 accused, will assist the Trial Chamber. The Prosecution will offer

11 documents and exhibits to highlight the criminal conduct of Naser Oric.

12 I will address the issue of the witnesses. The Prosecution will

13 call both Bosnian Serbs and Bosnian Muslims to testify. The Bosnian Serb

14 witnesses are the survivors of the military attacks in Ratkovici,

15 Jezestica, Fakovici, Bjelovac, Sikirici, Kravica, and Siljkovici. Many of

16 these Bosnian Serbs witnesses are rural country dwellers from small

17 villages. They were inhabitants of Srebrenica municipality or nearby

18 Bratunac municipality. The evidence will show that they lost their homes,

19 were deprived of their livelihoods, and many lost their loved ones forever

20 after the Muslim attacks on their villages. Killings of family members,

21 neighbours, and friends will form part of the circumstances of the attacks

22 prior to the crimes as charged as plunder and destruction of property.

23 This is not a trial about those killings during the attacks. The

24 Prosecution has not charged the accused with these killings. The Trial

25 Chamber will deliberate upon the testimony of Bosnian Serb witnesses who

Page 226

1 recount their detention in the municipal building. Men and women will

2 testify about the horrific mistreatment inflicted on the men and the

3 control that Naser Oric had over each detainee until exchanged. The

4 Prosecution will also call Bosnian Muslim witnesses to testify. Many of

5 these witnesses were soldiers in 1992 who fought in combat operations for

6 the survival of the Bosnian Muslims of Srebrenica, Bratunac, and

7 Vlasenica. Others worked in federal or local government of Bosnia and

8 Herzegovina as civil servants, politicians, judges, police officers, or

9 medical personnel.

10 The Prosecution witnesses will carefully give their evidence

11 before this Trial Chamber. After having risked their lives in the war for

12 their Muslim loyalties, they now come forward with the attendant risk of

13 being characterised as disloyal or even worse. These witnesses will

14 testify about the acts and also the character and conduct of Naser Oric.

15 Many of these witnesses, as colleagues or compatriots, urged Naser Oric to

16 use more professional officers. Oric should have compensated for

17 questionable experience. Instead, he acted with increased traits of

18 arrogance, recklessness, imprudence, ignorance. The witnesses will

19 narrate that Muslim soldiers asked Naser Oric to set up military courts

20 and prisons in Srebrenica and to confront the lawless acts of Muslim

21 soldiers. Oric refused and thereby permitted the disorder to mount.

22 Witnesses will talk about how some of Oric's military missions

23 were ill-conceived and irresponsible. Their evidence will show that

24 Muslim military staff loyal and proud to have been led by Naser Oric felt

25 forced to resign from the military staff post because of the increasing

Page 227

1 lawlessness in Srebrenica and because Naser Oric did not diligently

2 exercise responsible command in time of war.

3 In a revealing letter of resignation, the headquarters staff said,

4 and I quote: "We will not accept the guilt or burden our consciences that

5 the liberation of new areas from occupation only increases crime and

6 destruction of private and socially owned property. Many institutions are

7 not doing their part of the work. This is dangerous at any time, but

8 particularly so now."

9 Other Muslim witnesses will testify that they and others favoured

10 the relocation of the Muslim refugee population to safer territory where

11 food and shelter were available.

12 It will also become obvious to Your Honours that there was

13 military support for the removal of civilians from Srebrenica. Nurif

14 Rizvanovic and his unit of 450 soldiers offered to evacuate the Muslim

15 civilian population because it was difficult to protect them in

16 Srebrenica. This support was rejected by Naser Oric. Oric's refusal of

17 aid by his fellow Muslims was not due to his age and military or political

18 inexperience but because Oric sensed that the reasoned and realistic

19 proposals would present a challenge to his power.

20 Unchallengeable, unsharing, unrivalled, in Srebrenica only one

21 person had supreme power. No one should challenge him on anything. He

22 kept no counsel. Quite simply, Naser Oric was apparently drunk with power

23 at his age. Naser Oric did not countenance challenges to his military

24 power nor political power. Naser Oric was in control, indeed effective

25 control of his troops. He presided over local politicians. He was in

Page 228

1 constant communication with his troops and with local politicians and

2 civilians. He was in selective, often sporadic communication with his

3 superiors, often because of his own choosing.

4 Little, virtually nothing, occurred in the town of Srebrenica or

5 the municipality of Srebrenica without Naser Oric's knowledge or his

6 approval. When a soldier or civil servant or politician's conduct ran

7 counter to Naser Oric's wishes, he acted, he punished, he reprimanded, he

8 ousted them. Consolidation of power propelled Naser Oric.

9 The Prosecution's evidence will prove beyond a reasonable doubt

10 that Naser Oric is liable for the crimes of his subordinates who committed

11 acts of wanton destruction of villages. Naser Oric is liable for the

12 crimes committed by the civilians and soldiers. He instigated and

13 facilitated the plunder of private and public property of Serb villagers.

14 The Prosecution's evidence will prove that Naser Oric is guilty of the

15 murder of the prisoners and the cruel treatment of the prisoners.

16 The 1992 and 1993 the fight for Srebrenica was fought between the

17 Bosnian Serb army and the Army of Bosnia and Herzegovina. Examination of

18 the war crimes that had happened in 1992 and 1993 in Srebrenica is the

19 first focus of this case. Other Trial Chambers have deliberated upon and

20 condemned the international crimes, including the deportation and genocide

21 of Bosnian Muslims that happened in the 1995 year. Your Honours'

22 responsibility while contemplating the evidence in this trial is

23 different. It is the conduct of the actors at the beginning of the

24 Srebrenica war story that demands our undivided attention.

25 When we train our eyes beyond March 1993, it's only to ascertain

Page 229

1 whether Naser Oric continued the impunity of failure to prevent or punish

2 his subordinates for the burning, looting, and deaths of prisoners

3 committed against Bosnian Serbs in 1992 and 1993. The Prosecution's

4 evidence demonstrates that Naser Oric's position as a military commander

5 went from a position of ever-increasing strength and control from 1992 TO

6 commander to 1995 brigadier general, and that he commanded more than

7 10.000 troops, a formidable responsibility that cannot hide between an

8 excuse of youth. In each succeeding year, he failed to punish those

9 liable. Instead, he rewarded those soldiers and he accepted awards for

10 himself.

11 Soon after the Office of the Prosecutor conducted an interview

12 with Naser Oric, he gathered his former fighters together in a meeting.

13 He told them that the Office of the Prosecutor might also interview them

14 about the crimes committed in Srebrenica between June 1992 and March 1993.

15 At that meeting, Naser Oric issued a last instruction in regard to the

16 Office of the Prosecutor's investigation. He told them, if asked, "blame

17 it on the dead person." Naser Oric planned to blame his crimes on the

18 dead Muslim fighters.

19 I come to the finalisation of my statement, Your Honour.

20 The Prosecution takes the time now at the start of trial to extend

21 its appreciation to the Trial Chamber for earnestly listening to these

22 opening remarks. The Prosecution is certain that the Trial Chamber will

23 undertake its solemn responsibility to carefully contemplate and weigh the

24 evidence presented at trial. Let me end my statement with a closing

25 reflection.

Page 230

1 The warrior follows a code, one that places his actions and duties

2 within the laws of armed conflict at all times, even more so and

3 especially when chaos abounds.

4 The warrior as commander understands and respects the purpose and

5 limits of military attacks, the limits of military necessity, and the

6 customary prohibition against destruction and plunder of homes and the

7 ruining of lives. The warrior as commander understands and respects his

8 established duty to provide humane treatment for all who are captured and

9 detained by his fighting force.

10 Only the warlord as commander could inflict inhumane treatment to

11 prisoners. Cruelty and death as a result of such cruelty breaks the laws

12 and customs of war and blemishes the noble code of the warrior. Only the

13 warlord as commander would manipulate the law to his own will and deform

14 such law from a noble code into personal manifesto.

15 The warlord shields his crimes behind a false pretense of military

16 necessity or claims of helplessness in the face of emergency and chaos.

17 The truth is that Naser Oric, to preserve his military and political power

18 and to promote himself, chose to obey the laws of war only when he deemed

19 them convenient.

20 [Videotape played]

21 MR. WUBBEN: Irrespective of the character of an armed conflict,

22 only legal standards governs a commander's conduct at war. The warrior

23 who descends into lawlessness and who promotes lawlessness is simply to be

24 condemned. The evidence will show that the truth is that Naser Oric

25 camouflaged his mantle of warlord under his uniform of a military

Page 231

1 commander. Thank you, Your Honours.

2 JUDGE AGIUS: Thank you, Mr. Wubben.

3 [Trial Chamber confers]

4 JUDGE AGIUS: Mr. Jones, if this is agreeable to you, I was going

5 to suggest that instead of you starting now and then we have a break and

6 then you continue, we'll have the break now so that then you can start and

7 finish your opening statement without any interruptions.

8 MR. JONES: My only concern, Your Honour, is that I will certainly

9 be 90 minutes long.

10 JUDGE AGIUS: That's okay. If we stop now and reconvene at 12

11 noon, then you have 90 plus another 15 minutes.

12 MR. JONES: That's fine, Your Honour.

13 JUDGE AGIUS: So we will have a break and reconvene at

14 approximately 12.00 noon.

15 --- Recess taken at 11.40 a.m.

16 --- On resuming at 12.05 p.m.

17 JUDGE AGIUS: Yes, Mr. Nicols, we are all ears.

18 MR. JONES: Mr. Jones.

19 JUDGE AGIUS: Mr. Jones. We are all ears.

20 MR. JONES: Obliged, Your Honour. May it please Your Honour, the

21 Defence opening speech will be around 70 minutes interspersed with

22 approximately 20 minutes of video footage divided into five clips, so an

23 hour and a half in total, approximately.

24 Your Honours, you are hearing from us now at the very outset of

25 the trial, because in our view justice cannot be done in this case unless

Page 232

1 you have a true picture of what was happening in Srebrenica at the time of

2 the events covered in this indictment, and you won't get it from what

3 you've heard this morning from the Prosecution. So we are going to start

4 the case by painting a picture of Srebrenica for you and we are going to

5 do so with the use of four words.

6 The first is genocide, a word which will always be associated with

7 Srebrenica. The whole worlds knows of Srebrenica and the extermination of

8 its Bosnian Muslim population by the Serbs in July 1995. The genocide

9 started long before then. It began with Serb ethnic cleansing in early

10 1992 throughout Eastern Bosnia and continued right through the period

11 covered by this indictment.

12 International observers were warning of an impending genocide in

13 Srebrenica, using that very term, as early as January 1993. Long before

14 the final end game, the hangman had put the noose around Srebrenica's

15 neck. It only remained for the condemned man to fall through the trap

16 door.

17 Srebrenica fell in July 1995 and what followed was Europe's worst

18 massacre since the Second World War. 7.000 or more defenseless civilians

19 were moved to the killing fields were they were murdered in the most

20 cowardly and despicable way, blindfolded, shot in the backs, and buried

21 anonymously in mass graves. Genocide.

22 The second word we would ask Your Honours to have in mind

23 throughout this trial is siege. Srebrenica, from 1992 onwards, was

24 besieged, isolated, encircled, terrorised. Surrounded by minefields, Serb

25 heavy artillery on the surrounding hills, Serb infantry in the towns and

Page 233

1 villages, Serb tanks and transporters on the roads, and Serb-run

2 concentration camps like Susica or Karakaj on the periphery. Srebrenica

3 was constantly surrounded by a cordon of death.

4 Why was Srebrenica under siege at this time? Why was it and the

5 other eastern enclaves, Gorazde and Zepa, an enclave at all? It was an

6 enclave for the simple but chilling reason that the Serbs from April 1992

7 onwards had ethnically cleansed all the Bosnian Muslims from the

8 surrounding areas. As Larry Hollingworth, the UNHCR chief, put it in

9 March 1993, the Serb army: "Chased innocent women and children from

10 village to village until finally they are cornered in Srebrenica, a place

11 from which there is no escape and where their fate is to be transported

12 like cattle or slaughtered like lambs."

13 The Serbs carried out ethnic cleansing in order to annex the

14 territory of Eastern Bosnia so that it could become part of a Greater

15 Serbia, according to a well-executed plan. The enclaves stood in the way

16 of a Greater Serbia, therefore they had to be eliminated. That is a

17 matter of public record. Not into ethnic strife, the tribes of Yugoslavia

18 running amuck, as the Prosecution has portrayed it, but planned,

19 deliberate ethnic cleansing.

20 Ethnic cleansing to create a Greater Serbia is the very basis of a

21 large number of the indictments before this Tribunal; the Vlasenica

22 indictment, Dragan Nikolic, the Foca indictment, the Deronjic indictment

23 involving crimes against humanity committed by Serbs in Glogova, near

24 Bratunac, an adjacent municipality and one covered in this indictment.

25 The Karadzic, Mladic, Plavsic, Krajisnik, Milosevic indictments all deal

Page 234

1 with Serb ethnic cleansing.

2 Srebrenica was a direct product of this violent ethnic cleansing

3 campaign in Eastern Bosnia in early 1992 which brought refugees from

4 surrounding towns such as Bratunac and Zvornik into Srebrenica. In that

5 connection we would like to show you a short clip, 2 and a half minutes

6 long, of a BBC programme relating to the ethnic cleansing in Zvornik in

7 April 1992.

8 If the video booth would please play video 1.

9 [Videotape played]

10 THE NARRATOR: In a village 2 miles south of Zvornik we came upon

11 the human calamity which is the practical result of all this. 2.000

12 Muslims are stranded and struggling to get out. They spoke of the

13 fighting they had left behind them, the murder and hostage-taking which

14 went with it.

15 Different things are happening now. They have been happening

16 since 2, 3 days. It's a terrible trail of terror which has been made and

17 which is being made right now. You can hear even now some shells.

18 We could and so could the refugees waiting for rescue. The

19 artillery barrage was creeping towards us in the villages on the Muslim

20 side of Zvornik.

21 What is happening, she says, is that we are unarmed and they are

22 firing at us.

23 He begs the worlds to help them against the aggression of the

24 Serbs and the federal army.

25 The cry as we leave is again for help as quickly as possible, and

Page 235

1 the applause is only because we are the first sign they have had in days

2 that anyone out there cares about their plight. Numbers are difficult to

3 estimate, but in single file on mountain paths and in great columns on the

4 wider tracks, it is possible that as many as 20.000 people are on the

5 move, most of them by foot. These have been walking for two days, they

6 have gone 18 miles and at least another 20 to go along this trail of

7 tears.

8 They were heading for the safety of a Muslim area without any

9 help; no food, no medicine, and no transport, but all that they were

10 talking about was the actions of the Serbs in their town of Zvornik.

11 They killed all people. Something -- some peoples from the --

12 from the -- from the Serbian forces had something like a wire put on the

13 neck and pulled.

14 It is a great and tragic displacement of people, thousands of them

15 being driven from their homes for no other reason than the Muslims are

16 weaker and the Serbs are stronger and the ethnic map of Bosnia is being

17 redrawn. The refugees are looking for help to the European Community, to

18 the United Nations, and the Commissioner for Refugees. There's not a sign

19 here of any of them.

20 Martin Bell, BBC News, on the road from Zvornik.

21 MR. JONES: And thus, Your Honours, in this very same area, the

22 very time period covered by this indictment hundreds of Muslims were being

23 killed in towns and villages in Eastern Bosnia such as Hranca, Glogova,

24 Suha, Bljeceva, Borkovac, Mihajlovici, Krasan-polje, Bratunac, Podcaus,

25 Voljevica, Zaluzje, Abdulici, Bjelovac, Zapolje, Tegare, Nova Kasaba,

Page 236

1 Joseva, Jagodnja, Vlasenica, and Zaklopaca. You'll see all these towns

2 and villages during the course of the trial. They're dotted around

3 Srebrenica.

4 In every one of them Serbs liquidated and expelled Muslims in

5 great numbers and herded them towards Srebrenica, an important fact which

6 you may think the Prosecution might have mentioned in order to provide you

7 with the full picture. Indeed, you might start to wonder as the

8 Prosecution evidence unfolds whether you are being asked to believe in an

9 Alice-in-Wonderland world where black is white and white is black, where

10 the attackers claim to be the attacked and the besiegers claim to be the

11 besieged. In this case will the Prosecution lead you into a hall of

12 mirrors where you will be asked to believe the very opposite of what all

13 the other cases of this Tribunal teach us about the Bosnian conflict? It

14 will be a matter for you to judge. The facts, however, are inescapable.

15 You will learn during this trial how Srebrenica, from the start of

16 the war, was an open-air concentration camp, how tens of thousands of

17 refugees were squeezed into the enclave, how they had to sleep out in the

18 open in mid-winter because there was no room in the public buildings for

19 all of them, how they were shelled and shot at by the Serbs like fish in a

20 barrel, with people dying every day.

21 The Serb army was vastly better equipped than the Bosnians,

22 possessing heavy artillery, mortars, cannons, multiple rocket launchers,

23 howitzers, tanks, and aircraft that they inherited from the JNA or

24 received in support from Serbia. They decided rather than to take the

25 town in a frontal assault, which they lacked the manpower to do, instead

Page 237

1 to lay siege to Srebrenica, to encircle it and then blast away at the

2 civilians penned in there with heavy artillery, grenades, and shells

3 falling every day and decimating innocent people. That is what happened,

4 as you will see during this trial.

5 The Serbs were never going to leave Srebrenica alone. It and the

6 other eastern enclaves stood in the way of a Greater Serbia. The river

7 Drina was to be abolished as a border separating Serbs, so the non-Serbs

8 in that area had to go. The Serbs were not in a hurry; they had time on

9 their hands to inflict a slow death on Srebrenica through shelling,

10 sniping, starvation, and disease. And that was their clear genocidal

11 intent from the start.

12 The next piece of footage, 2 minutes long, from November 1992,

13 shows General Milenko Zivanovic, the commander of the Drina Corps, which

14 was the Serb army based just a few kilometres from Srebrenica, talking of

15 how the coming winter will help them to defeat the encircled Turks, i.e.,

16 the Muslims living in Bosnia. He says how the Turks in Srebrenica are cut

17 off from those in Cerska, Zepa, and Gorazde. Then his men sing of how

18 they will slit their enemies' throats.

19 Could the booth please play video 2.

20 [Videotape played]

21 MR. JONES: There you see the soldiers who laid siege to

22 Srebrenica as they truly were - not victims as they would now portray

23 themselves - but willing executioners, particularly in 1995. And the

24 agonies of the bitter winter in 1992/1993, took its toll as the

25 sub-commander intended and as the clips you will see in a moment from

Page 238

1 March 1993 show.

2 The word "siege" has an almost medieval, primitive ring to it, and

3 justly so. For what are a besieged population to do? What they are

4 forced to do? They are forced to fight for their very survival,

5 especially to fight for food. Men, women, and children in a siege are

6 stripped to their bare essentials, reduced to the lowest form, in which it

7 is, in the words of Thomas Hobbes, a "war of every man against every man

8 ... continual fear, and danger of violent death; and the life of man,

9 solitary, poor, nasty, brutish, and short."

10 That's how it was in Srebrenica in the very time covered by this

11 indictment; a daily struggle to live in defiance of the enemy that would

12 starve its inhabitants into submission.

13 Which brings us to the third word: Starvation. Srebrenica in the

14 period covered by this indictment was starving. For months the Serbs

15 refused to allow UNHCR to bring in food and medicines. Why would they?

16 They were using starvation as a tool of war against Srebrenica's Muslims

17 as it was used, for example, in the Nigerian civil war. And some of the

18 pictures you will see will put you in mind of Biafra. This is itself a

19 crime under international humanitarian law.

20 The Serbs, army and locals, had expelled the Muslims from their

21 homes, farms, and fields, confiscated their lands and livestock, and

22 chased them into the woods and hills around Srebrenica. There they found

23 no food apart from berries, acorns, or bark on which they were forced to

24 live like creatures of the forest.

25 You will hear during this trial how civilians would try to get

Page 239

1 back to their homes at night to get food from their cellars, only to be

2 killed in Serb ambushes or by Serb-laid mines. A great many people whose

3 only crime was to have a terrible hunger in their bellies perished in this

4 way. People famished, dying of malnutrition, slowly wasting away, would

5 fight each other, maybe even kill each other, over loaves of bread or the

6 aid that eventually came from the sky, like manna from heaven, in the form

7 of U.S. air drops in March 1993.

8 The footage you will now see of the people in Srebrenica with

9 famine in their faces, wasted stomachs, and empty stares tells the story

10 vividly, as do the UNHCR and other reports of the time. What follows will

11 be the first of three extracts of news programmes broadcast by ABC News,

12 with footage shot by Tony Birtley, a British reporter, showing Srebrenica

13 in March 1993, the time of a massive Serb offensive in the time period

14 covered by the detention charges against Oric. This first clip is seven

15 and a half minutes long.

16 If the booth could play video 3.

17 [Videotape played]

18 THE NARRATOR: It just seems to keep getting worse out of Bosnia,

19 numbing us with its relentlessness. We get shocked anew each time we see

20 the pictures, and today for the first time we get a glimpse of life in

21 Eastern Bosnia, an isolated, mountainous area where thousands of Muslim

22 refugees are slowly starving as the United States searches for ways to get

23 food to the people without getting involved in their war.

24 When the Serbs refused to let United Nations relief trucks travel

25 into the Muslim areas of Eastern Bosnia, the U.S. started dropping

Page 240

1 supplies from the sky. For weeks now the U.S. Air Force flying out of

2 Rhein-Main Air Force base has carried tons of food and medicine to the

3 people of Bosnia, while the American people wonder whether the supplies

4 are getting through, whether they're doing any good and whether any of the

5 factions have devised a way to use food as a weapon. We have seen the

6 eerie pictures of American planes dropping their bulky beacons of

7 survival. Tonight we see where the parcels land, and surprisingly, the

8 first sign of an American military man on the ground in Eastern Bosnia.

9 He's witnessed the impact of the air drops. These scenes come to us from

10 the town of Srebrenica, a place almost impossible to get to. ABC's Tony

11 Birtley finally managed it last week in what can only be described as an

12 heroic effort to let us see what's happening in Srebrenica, Tony travelled

13 by foot and by horseback to get into the isolated area. Since he arrived,

14 he's run out of food and been injured by Serbian fire, but still he

15 smuggled out the story.

16 Nightfall in Srebrenica and people light fires on the streets and

17 the hillsides to wait for what they call "the planes from God." After 11

18 months under Serbian siege, the U.S. air drops of humanitarian aid are

19 their only lifeline. In the dead of night they make their way to the

20 place where the prepared meals have landed, most often on steep-sided

21 hills where people have to crawl up on their hands and knees. For some,

22 like this lady, it's too much. She collapsed from exhaustion. But the

23 shape of a U.S. parachute hanging in the trees, showing the drop spot.

24 Gun fire echoes around as the army try to control the people and

25 the supplies.

Page 241

1 I found this about 600 yards uphill. I don't know what it is, it

2 could be medicine or something.

3 The lucky ones clutch their treasure package of 12 meals and head

4 home. But in the morning, the empty packets lying on the mountain track

5 showing that some were so desperate for food they couldn't wait.

6 American planes have successfully air dropped aid into this area

7 for the last five nights running. The villagers say they received only

8 one prepared lunch packet, the rest has been taken by the army.

9 Most people have been eating only bread made from hay and corn for

10 the last two months. That has finished. They now make it from the flour

11 from a hazelnut tree. The father of this family demonstrates how much

12 weight he has lost in the last 11 months. It is not a famine situation

13 here but it can be best described as slow starvation.

14 This is what I eat. This is what we eat.

15 We've got nothing to eat. We're starving to death.

16 We're practically naked and barefoot. Look at us. We're all in

17 rags. We haven't had anything to eat.

18 The air drops have worked but the people need land convoys which

19 are continually being blocked by the Serbs.

20 So far, we have been right on the money. I see MRE packets

21 everywhere, I see people carrying MRE supplies, however we need to change

22 our distribution now to flour, sugar, oil, and other basic necessities.

23 These are very hungry people and they need basic supplies, not high

24 calorie items like MRE. Right now we have done the bare minimum to keep

25 them from starving and from dying, however we need to do a lot more.

Page 242

1 General Philippe Morillon, the commander of UN forces in Bosnia,

2 visited the town. He told the authorities that he would open up road

3 corridors to get food in and order the placement of military observers in

4 the town that he hopes will deter shelling that locals say comes from

5 across the nearby Drina river in Serbia. But the Serbs have so far failed

6 to give their agreement to the general's plans.

7 Just as General Morillon tried to leave, hundreds of refugees,

8 many of them recent arrivals from Konjevic Polje, blocked his way. They

9 chanted for peace and food and believed that if the UN commander left, the

10 Serbs would start shelling.

11 The tanks are about and waiting to attack. If you will leave,

12 they will come and attack us.

13 I heard the news that General Mladic will attack Srebrenica. We

14 just want bread. We want the blue helmets to protect us.

15 They kept their vigil all night around fires and in the end

16 General Morillon decided to stay until a cease-fire takes effect and the

17 Serbs allow UN helicopters to fly into Srebrenica.

18 I've discovered, arriving here, that the situation was worse than

19 I feared myself. And I understood the real fear, anguish, panic of this

20 population. And I wonder too that their desire for me to stay here was

21 probably the best solution in order to help them to survive here.

22 The refugee problem is so acute that people have been forced to

23 live in forests in homes made of logs. They're even worse off here, miles

24 from the nearest road, with no hope of aid or medical treatment. These

25 people say two elderly and three children have died here of starvation in

Page 243

1 the last few weeks.

2 Refugees continue to flood into the town, most from Konjevic Polje

3 where the fighting has intensified. Ten women and children were killed on

4 Friday in Serb shelling, and 30 were wounded, including two UN soldiers.

5 There were a lot of people there, a lot of people we saw last

6 night on the streets, a lot of people who are sleeping in very, very cold

7 schoolrooms. There are a lot of people who genuinely have had absolutely

8 no food for three days. Children, women, old people, no food for three

9 days, and there's no prospect of food at the moment.

10 150 alone are sleeping in this cramped room. They lie on the

11 floor, on tables, and even under them.

12 Srebrenica simply can't cope with this huge influx of refugees.

13 Several hundred are arriving each day. They arrive tired and hungry,

14 desperate not only for food but for shelter as well.

15 This 75-year-old lady lays exhausted after a trek of 17 hours

16 across mountain tracks. There is no food to feed her and she'll probably

17 die within a few days. The sense of hopelessness here is increasing. For

18 some, General Morillon's words were a kind of comfort but few believe they

19 will change the fortunes of this battered people.

20 Tony Birtley, ABC News; Srebrenica, Eastern Bosnia.

21 MR. JONES: Your Honours, seeing those clips, one is reminded of

22 the words of Primo Levi, who wrote in The Truce of his release from

23 concentration camp: "Only after many months did I lose the habit of

24 walking with my glance fixed to the ground, as if searching for something

25 to eat or to pocket hastily or to sell for bread."

Page 244

1 How long, one wonders, did it take the inhabitants of Srebrenica,

2 those who survived, to lose that very same habit?

3 Srebrenica at this time was also without a water supply,

4 electricity, telephones, and essential medicines; all cut off by the

5 Serbs.

6 Doctors in the war hospital had to amputate gangrenous limbs

7 without anesthetics in conditions reminiscent of the Crimean war.

8 Bandages had to be used and re-used without detergent or disinfectant.

9 Skin diseases, lice, gastroenteritis ravaged much of the population.

10 And thus people died of minor wounds and diseases which would have

11 been preventable if only the Serbs had let medicines in. And thus disease

12 too reigned, and that's the fourth and final word we want Your Honours to

13 bear in mind throughout this trial: Disease.

14 Srebrenica in this period was a living hell. The people were

15 stalked by their very own four horsemen of the apocalypse; disease,

16 starvation, siege, and genocide.

17 Why do we mention all this? Well, we don't say that because the

18 Serbs did this to innocent men, women, and children that the Bosnians

19 could do likewise. We never have and never will seek to raise tu quoque

20 as a defence. No. We raise these matters for their obvious relevance to

21 a number of issues in this trial, as will become apparent during the

22 proceedings, and also for this reason: International humanitarian law,

23 the law applied by this Tribunal, was created to make war more humane, to

24 tame the savagery of man and make gentle the life of this world. And so

25 law which failed to take into account a humanitarian catastrophe of the

Page 245

1 proportions that befell Srebrenica, a rule of conduct that failed to give

2 any consideration to the plight of a besieged, terrorised, and starving

3 population would not only be a poor law, it would be inhumane and thus

4 contrary to the purposes for which that body of law was established and

5 contrary to the purposes for which this Tribunal was created, and contrary

6 to common sense.

7 For is it a crime for civilians to steal food from the enemy that

8 is starving them into submission? Are they to be condemned for going back

9 to the villages and fields from which they were expelled to try to grab

10 some meager provisions that they had left behind? Should they have

11 instead stayed at home, or more accurately, on the streets of Srebrenica

12 where most of the refugees had to camp out and slowly wasted away and let

13 their children starve, although every parental instinct would tell them to

14 go out and search for food? Is that what people, parents, do? Is that

15 what people are expected to do? Is that what the law requires them to do?

16 Surely not.

17 Is it plunder to steal weapons and ammunition from a vastly

18 superior foe bent on your destruction, to capture those weapons in order

19 to stop the Serbs from killing you and so that you can fight back?

20 Especially, I might add, when your side is crippled by a UN arms embargo?

21 Is it wrong to resist ethnic cleansing, to fight the ultranationalists who

22 would expel you from your home simply because you are not a Serb and

23 because they have a gun and you do not? Is it criminal to be unable to

24 control thousands of desperate civilians from fighting for their very

25 survival? It will be for Your Honours to decide.

Page 246

1 The Economist wrote recently, with regard to the conduct of the

2 U.S. Army in Iraq, the largest and best-equipped army in the world: "Not

3 everything goes right during war or military occupation, to put it mildly.

4 Intelligence is always uncertain and often looks comically or outrageously

5 wrong in retrospect. Decisions have to be made in a fog, on a balance of

6 risks, in an atmosphere of doubt."

7 You will have to imagine how much more true that is in a besieged

8 town suffering a humanitarian disaster without proper communications and

9 with thousands of refugees facing the daily prospect of massacre. You

10 will have to imagine decision-making and trying to control people in that

11 situation. Because the central issue in this case is whether the people

12 in Srebrenica were controllable.

13 To illustrate that setting, we would like to show the next clip,

14 which is three minutes long, of footage shot by Tony Birtley in Srebrenica

15 in 1993.

16 If the booth would please play video 4.

17 [Videotape played]

18 THE NARRATOR: To set the stage for us, what is it we're going to

19 see and hear next?

20 I think we're going to see one of the scenes that will stay with

21 me, and I think for the people who saw the video, for many, many, many

22 years, and that is the sight of complete and utter desperation of people

23 who simply want to get out of a situation and are prepared to do anything

24 to do that.

25 I couldn't believe what I was seeing. I think sometimes in

Page 247

1 journalism we can be wont to steer towards hyperbole but there's nothing

2 you could say to really describe what was going on; the sheer panic and

3 the desperation of the people. And to see women to throw their babies

4 into the back of trucks and hope that someone will grab them and take them

5 to safety because separation, for them, was far better than having the

6 youngster endure starvation and shells and bullets was terrible to

7 witness. People getting angry before the convoy left. The UN heard about

8 it but they could do nothing. I think people become so desperate they are

9 prepared to do absolutely anything. I think it's the -- on the lowest

10 level of humanity. I think these people are prepared to steal, even kill,

11 to survive because nobody else is looking after them. I think in Eastern

12 Bosnia in order to be a Bosnian soldier you've got to be resigned to be --

13 you've got to be resigned to injury, and also you've go to be resigned to

14 death. It's a total mismatch. If it was a big fight, it would be the

15 equivalent of Mike Tyson fighting some 15-year-old with both arms tied

16 behind his back. They simply do not have weapons to compete on a level

17 footing with what the Serbs have got. They have 1948, 1950 rifles; they

18 have Kalashnikovs, if they're lucky. They've got a couple of tanks that

19 they captured from the Serbs, but they can't fire them because they ran

20 out of ammunition a long, long time ago. In my latter days in Srebrenica

21 I went to the funeral of a soldier -- they're very common in Srebrenica

22 because soldiers are being killed all the time. It was significant

23 because he had been killed when there was a so-called cease-fire,

24 everybody said there was a cease-fire, and suddenly we had the funeral of

25 this 22-year-old young man whose head had been blown off, basically.

Page 248

1 There's a pitiful scene of his brother sobbing uncontrollably, distraught

2 with grief, the father trying to hang to his emotions, to have some kind

3 of semblance of dignity, and he sat there for a few seconds and held the

4 hand of his son, his eyes welling up with tears.

5 MR. JONES: Your Honours, time and again during this trial you

6 will have to put yourselves in the shoes of Naser Oric and to ask

7 yourselves what realistically he could have done in this nightmarish

8 world, this veil of tears that was Srebrenica from the outbreak of ethnic

9 cleansing in April 1992 to the final genocide in 1995, because the law

10 cannot require people to do the impossible. Yes, as the Prosecution has

11 said, the laws of war were designed for war, but not all wars are the

12 same. Not all involve genocide, siege, disease, and starvation.

13 We make these remarks with regard to the crimes against property

14 charged against the accused. You will remember that Oric is only charged

15 on this indictment with crimes against property, plunder, and wanton

16 destruction in the actions on Serb-occupied territory. Stealing - and I'm

17 reading from paragraph 35 of the amended indictment - "cattle, furniture,

18 and television sets." "Cattle, furniture, and television sets."

19 You may wonder, and the public may wonder, why in this Tribunal

20 set up to deal with terrible crimes such as genocide and crimes against

21 humanity the Prosecution has decided to charge Naser Oric with the theft

22 of television sets as a war crime. But they have and it will be for Your

23 Honours to decide upon Oric's guilt or innocence of that charge at a time

24 when people in Srebrenica were starving and being killed daily by shells.

25 Naser Oric is not, however, charged with any violent crimes

Page 249

1 against people in these actions. The Prosecution seems to think so.

2 They've referred this morning to how many villagers were killed during the

3 raids. Well, they should read their own indictment. If there were a

4 tittle of evidence against Naser Oric for crimes against people in these

5 raids, you can be absolutely sure they would have charged him with it. He

6 is not charged with touching a hair on the head of any Serb civilians in

7 raids, nor of ordering, instigating, or aiding and abetting such crimes,

8 nor even of failing to prevent or punish them.

9 As regards crimes allegedly committed in the prison, in the town

10 of Srebrenica, away from the front lines where Oric fought, again Oric is

11 not charged with committing these crimes, nor of ordering, aiding and

12 abetting, or of instigating them. Oric is charged only with having failed

13 to prevent or punish those crimes. And he's certainly not charged with

14 detaining women and children. Again, the Prosecution should read their

15 own indictment. They don't charge it and if they had evidence, they would

16 bring it. One wonders: Is the Prosecution's strategy to try to throw as

17 much mud at Oric as possible in the hope that some of it will stick?

18 This morning they've mentioned the black market, that Oric is a

19 warlord, a former bodyguard, as if that has some relevance. Women and

20 children, bloodied faces. Well, that's not in their indictment. As far

21 as murders and beatings and the prisoner concerned, we say this: Nothing

22 excuses such crimes, of course, if indeed they were committed in the way

23 that the Prosecution say that they were. But the evidence will simply not

24 bear out the charges that Oric is responsible for any such crimes.

25 You heard what the Prosecution said this morning about the

Page 250

1 detention charges: Oric swaggering, prison guards, bloody faces, what was

2 said by Oric to others. A lot of what has been said about these crimes we

3 haven't seen in the statements disclosed to us and we don't know if we'll

4 ever see it and we don't know if you'll ever see it. It's not true, it's

5 not evidence, because the Prosecution comes before you today and says it.

6 Just because the Prosecution leadenly repeats allegations, it doesn't make

7 them true, obviously. So when these witnesses testify on the detention

8 charges, I will ask Your Honours to take the transcript of Mr. Wubben's

9 remarks today, have it in your hand, see every word what he said the

10 evidence will show, and see whether the Prosecution evidence comes

11 anywhere close to establishing those facts. It won't.

12 So we would ask Your Honours to write down those four words that I

13 mentioned at the outset - genocide, siege, starvation, disease - and to

14 bear them in mind throughout this trial and to see as the Prosecution

15 evidence unfolds over the coming days, weeks, and months whether it

16 tallies with that reality.

17 Your Honours, the Prosecution's approach to this case puts me in

18 mind of a billboard poster that I saw many years ago in the United Kingdom

19 which was an advertisement for the police force, and it was designed to

20 test preconceptions. The first picture showed one man running down the

21 street with a policeman sprinting behind him. The poster asks you what

22 you think is happening. The misconception is that the man is being chased

23 by the police officer, but in fact, no, a second picture is shown and you

24 see that in fact they are both chasing a third person, a criminal, who is

25 further down the street who is not shown in the first picture. Two men

Page 251

1 chasing a third man; that's the true picture.

2 The Prosecution, it seems to us, wants to say to you: Just look

3 over here in this narrow frame, this cropped picture, and just look at

4 this act of plunder, this civilian leaving a Serb home with a television

5 set, and judge Oric for that and ignore everything else that was happening

6 all around; ignore the hell that was crashing around the ears of

7 Srebrenica's inhabitants at the time. Just look where we want you to

8 look, not over there at the things the Defence would have you see. Don't

9 see the full picture is what they're saying to you.

10 If you do that, you won't have the true picture and you would get

11 the wrong answer -- I don't mean the wrong answer in terms of guilt or

12 innocence. That will be a matter for detailed analysis of the evidence at

13 trial. We say that will lead you to an acquittal at the end of this trial

14 in any event. But if you follow the Prosecution's approach, you will not

15 have the information necessary for you to weigh the facts properly and to

16 apply the law to the situation on the ground in a judicious, comprehensive

17 way.

18 Many Prosecution witnesses may also try to avoid giving you the

19 larger picture. Will they, out of a misguided sense of nationalism, or

20 blinded by the propaganda that they have seen for so many years in

21 Belgrade's media, try to bury the agony of Srebrenica's agonies? Will

22 they deny that Serbs committed any crimes and that Srebrenica's Muslims

23 suffered so terribly at their hands? In all probability many of them

24 will, and you will have to consider what that says about their credibility

25 generally. Remember that many Bosnian Serbs still deny the 1995 genocide

Page 252

1 and would have the victims be forgotten.

2 The victims of Srebrenica should not be forgotten. We will now

3 show the final piece of footage from Srebrenica in early 1993, the very

4 period covered by the detention charges at a time when the Serb army was

5 launching one of the largest offensives of the war in Bosnia, because a

6 picture is worth a thousand words and images of a murdered people tell

7 more than a statistic. This last clip, lasting six and a half minutes, is

8 from a special ABC programme after Tony Birtley was evacuated from

9 Srebrenica in March 1993. It provides a synopsis of the situation there

10 at the time.

11 [Videotape played]

12 THE NARRATOR: The village near Srebrenica just to be totally

13 engulfed by hundreds and hundreds of people. I thought I was standing in

14 movie and I kept expecting somebody to say, "Okay, cut," and then all

15 these people with these gaunt, haunted faces -- and they all got

16 expressionless faces. It's like life was drained out of them. Life was

17 ebbing away. There was very little caring by the so-called authorities

18 for the new arrivals. Nobody cared for the refugees. They were left for

19 days on the street. No one cared anything about them. They arrived, and

20 we followed a family through and they had been walking for something like

21 17 hours, and the mother carrying the little boy who had been wounded by

22 shrapnel in the hand. He had been wounded at the same time as his father.

23 They came, they didn't know where they were going. They had no

24 relatives or friends.

25 Where does this man recommend they can sleep? Where does this man

Page 253

1 recommend they can go?

2 I don't know where. This camp has 60.000 refugees and there's

3 only room for 10.000. Have you seen how many people are sleeping on the

4 streets?

5 We helped them carry the sacks. It was a very, very small

6 gesture, but this woman was toiling under two great sacks and I must admit

7 I found one sack very difficult and she had two of them. And it struck me

8 that I can't believe that these people, they're people, and they didn't

9 want to know. The father was treated in hospital and it was very tragic

10 to see the little boy on the couch and the father on the couch and they

11 had both been wounded. But that one -- so that finished them out because

12 they can't have space in the sought-after wards because you can only have

13 room for so many. It was never intended to be a hospital, more a clinic.

14 It's not a place where you can get the best possible treatment, and even a

15 surgeon, who I got to know quite well, was very honest about that. You

16 would come in there, you would have an operation very quickly, you then

17 would come out. You would have your stomach sewn back, shrapnel taken out

18 as quickly as possible. If you were quite ill, you would stay in one of

19 the wards. What the video cannot convey is the stench of unwashed sheets,

20 unwashed bodies, of wounds becoming infected.

21 I mean, they would always come and get me. They wanted to show me

22 everything that was going on. Me, I was a way of telling the world for

23 the first time that everything they have said is true. So whatever

24 happened in the town, they would say: Get them, get them. They called me

25 in to casualties.

Page 254

1 All these little girls in the town, you know. Five or six little

2 girls had been hit, and the little boy as well. I mean, there was two

3 screaming although they had very small injuries. But then there would be

4 the 10-year-old girl who was lying and she had what I've heard so many

5 times in Srebrenica and Sarajevo as well, what they call the death look.

6 Her eyes are going blank. They had been hit. They were out playing in

7 the south end of town, and later on I went to the home and one of them

8 heard that her 4-year-old sister had been killed. She was killed

9 instantly. And the mother went distraught and weeping and wailing. And

10 like, you know, normal scenes, I think, in Bosnia. This is a normality.

11 That's the terrifying thing about it. The medevac by helicopter was

12 something that there was great uncertainty, especially by the Bosnian

13 authorities. They didn't believe for a moment the Serbs would allow

14 helicopters in and out of here, despite the fact that General Morillon was

15 very, very confident. Well, after the helicopters took off with their

16 first batch of wounded, within I don't know, two minutes, it was shelled.

17 And it was artillery shells because you could hear that one coming in,

18 huge bang.

19 Roger. I have more incoming, more incoming. Over.

20 The majority of the shrapnel sprayed to the south and that's why

21 the two Canadian soldiers were wounded, because they were further south.

22 When this huge, confused scene was going on in the hospital of patching up

23 the Canadian soldiers, lying quietly on a bench was this 5-year-old little

24 boy who had been badly injured in the southern part of town in a separate

25 incident by a Serbian mortar. It was hoped that he would be evacuated

Page 255

1 with the Canadian soldiers. We went back down to the soccer field and the

2 soccer field was shelled again. So the French colonel who had come in

3 with the helicopters decided that there would be a medevac but no landing

4 on the soccer field, so they had to be winched up. But before the

5 Canadian soldiers had been winched up, the baby had died in the arms of

6 one of the Canadian soldiers. It seemed to me that it is a great

7 injustice in some respects to these people, that although we will put on a

8 helicopter flight when it's dangerous to evacuate UN soldiers, we are not

9 prepared to do that for a 5-year-old boy. And it's a most tragic scene:

10 A father taking the little boy wrapped up in his golden plastic covering

11 to keep him warm sobbing uncontrollably and his sobs and weeping were

12 drowned out by the blades of the helicopters when it winched up the

13 Canadian soldiers and went off. It seemed to sum a lot about Srebrenica

14 and Bosnia, that basically these people, you know, they come second.

15 MR. JONES: Your Honours, these people who always came second in

16 the eyes of the international community were the very people Naser Oric

17 was trying to defend against even greater agonies than those you've just

18 witnessed, if that is possible to imagine. Their faces tell not only of

19 suffering but of fear, fear of what was to come. They knew the fate that

20 awaited them, because the same thing had happened up and down Bosnia in

21 1992. From Prijedor to Bijeljina, from Zvornik to Foca, the same pattern

22 of SDS-organised, arming of Serbs, disarming of Muslims, and violent

23 takeovers of the municipalities with non-Serbs being systematically

24 killed, raped, dispossessed, and the survivors expelled. As you will hear

25 during this trial, this was done with the support of the JNA, volunteers

Page 256

1 from Serbia, police units, and paramilitaries, such as Arkan's Tigers, Red

2 Berets, and so-called Panthers; David versus Goliath. The Muslims didn't

3 have a chance.

4 The carnage was such that by the end of the summer 1992 -- the

5 transcript seems to be following the videoclip --

6 [Technical difficulty]

7 JUDGE AGIUS: Mr. Jones, I'm sorry to interrupt you for a while.

8 Registrar, could you check the problem, please.

9 Mr. Jones, we have to wait for a couple of minutes until this is

10 resolved.

11 You needn't worry about the time because I'm also informed that

12 there is no sitting in the afternoon in this courtroom. So if we need to

13 go beyond our scheduled time, we can do that.

14 MR. JONES: I'm obliged, Your Honour.

15 JUDGE AGIUS: It's fine now.

16 So I've been told we can proceed. So, Mr. Jones, it's all yours

17 again.

18 MR. JONES: I'm just wondering if I need to repeat anything. I'll

19 start from here.

20 From Prijedor to Bijeljina, from Zvornik to Foca, the same pattern

21 of SDS-organised, arming of Serbs, disarming of Muslims, and violent

22 takeovers of municipalities, with non-Serbs being systematically killed,

23 raped, dispossessed, and the survivors expelled. As you will hear, this

24 was done with the support of the JNA, volunteers from Serbia, police units

25 and paramilitaries such as Arkan's Tigers, Red Berets, and Panthers.

Page 257

1 The carnage was such that by the end of summer 1992, at least

2 300.000 Muslims had been cleansed from Eastern Bosnia and up to 40.000

3 killed in this period alone. 40.000 killed in Eastern Bosnia alone. The

4 inhabitants of Srebrenica knew all this. They knew it from their own

5 experience of Serb ethnic cleansing when the Serbs took Srebrenica in

6 April 1992, killing and burning old people in their homes. They knew it

7 from the bodies that they fished out of the Drina which had floated down

8 from Visegrad where the victims' throats were slit by Serb

9 ultranationalists on Mehmed Pasha's ancient bridge before the bodies were

10 thrown into the dark waters below. They knew it from the refugees, like

11 those you saw in the Zvornik video, arriving daily in Srebrenica from

12 surrounding villages with tales of shellings, rapes, and killings carried

13 out by Serb forces.

14 The Muslims in Eastern Bosnia knew the reality; they were well

15 aware from the start of the war that if they fell into the Serbs' hands,

16 then that was it. That day would be their last. What could they do?

17 Larry Hollingworth, at the UNHCR, summarised the dilemma well, writing of

18 his visit to Srebrenica in March 1993: "We were in Srebrenica. I was

19 metres away from families like my own in size, maybe also in background.

20 I wondered how I would cope, snuggling my children next to me, attempting

21 to ward off the bitter cold. I know that I would have felt humiliated,

22 impotent, so I came to the conclusion that I would have stayed and

23 fought. I then realised that these people had been driven out not by an

24 advancing army - that was not the Mladic way - but by shell fire. You

25 cannot stay and fight shells. They land and kill and maim

Page 258

1 indiscriminately. You can run like a headless chicken, you can stay in

2 the cellar like a mouse, or you can quietly and resignedly join the throng

3 and leave. Perhaps that is what I would have done. I felt close to the

4 refugees but not close enough really to understand. Even if I had sat on

5 the pavement with them, it could not be the same. I could escape; they

6 could not. For me, it was now, but for them it was now, tomorrow, and

7 maybe forever."

8 Naser Oric and other local commanders, self-organised groups, did

9 stay and fight. Oric was a young man, barely 25 years old, and a

10 policeman when the war broke out. Having only completed his obligatory

11 military service, he knew nothing of being a commander. But faced with

12 the terrible decision, the likes of which we here are fortunate enough

13 never to have to take, to flee his home or to fight, he and others took

14 the lead and stood up for their right to remain on their lands and to

15 resist the book-burning, mosque-destroying Serbian ethnic cleansing that

16 the civilised world condemns. Oric defied the Serbs, and the fact is the

17 Serbs never forgave Oric for fighting back.

18 His crime, in their eyes and perhaps in the eyes of some in the

19 West too, was not to lay down his arms and to allow himself to be

20 slaughtered like a lamb, instead he and his men fought back like lions.

21 Outgunned and ill-equipped, they fought in the only way possible to them,

22 in guerilla warfare and in hard hand-to-hand combat. Oric was an

23 outstanding warrior, leading by courage and personal example, never asking

24 his men to do anything which he himself would not do first. He willingly

25 placed his life in mortal danger again and again. Every time he and his

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1 men went to the front lines, they didn't know if they would come back

2 missing a limb from stepping on a land-mine or with their bodies riddled

3 with shrapnel or bullets; or even worse, whether they would fall into the

4 clutches of the Serbs from which there would be no return, in all

5 likelihood, only an agonising death. They chose this life over the trail

6 of tears of refugees fleeing the Serb onslaught that you saw in the

7 Zvornik video.

8 Very few of Srebrenica's fighters are alive today. Many were

9 summarily executed by the Serbs after capture in 1995 and before. Indeed,

10 it is nothing short of a miracle that Oric survived and is before you

11 today. That was the war he fought because he had no choice. This

12 Tribunal wasn't established to outlaw war, much less the sort of defensive

13 war Oric fought to save his people from starvation and massacre, nor was

14 this Tribunal created to punish Oric for being a good fighter, for being

15 exceptionally brave.

16 The Prosecution has put Naser Oric's character into question this

17 very morning, saying he ignored laws of war, regarded law as an irritant,

18 that he was arrogant, reckless, impotent, ignorant, drunk with power,

19 which I have to say is rather insulting to a Muslim even to use that term.

20 The Prosecution claims to see into Naser Oric's mind, but we don't

21 pretend to fathom anyone's soul. But surely it's not the business of the

22 Prosecution to slur Naser Oric's character but to prove their case. Many,

23 many Bosnian Muslims would beg to differ from the description they have

24 given of Oric's character. What does that say about them if the

25 Prosecution is right? The worst calumny uttered this morning was when the

Page 260

1 Prosecution said that Naser Oric told his men to blame the crimes on the

2 dead. The Prosecution has taken statements from witnesses where that was

3 put to them and they expressly denied it. One witness, as a matter of

4 hearsay, said that he heard something to that effect. The Prosecution has

5 statements from persons who fought with Oric and said, no, he never said

6 that. We raised that in our provisional release application and submitted

7 evidence from a misinformation campaign.

8 Now, what are the Prosecution doing putting before you that sort

9 of information which they know is false, which they know they have

10 evidence to contradict? What we know is: From the moment Oric resisted

11 the Serbs, they pursued him as their quarry. They pursued him in war and

12 they have pursued him since in peace through propaganda, especially after

13 the slaughters of 1995. In their misguided view, crudely put, if Oric can

14 be made out to be the villain of the piece, if he can be found guilty of

15 any crime, then they are excused for the 1995 genocide. And in an equally

16 misguided view, the UN is then left off the hook for not protecting its

17 own safe area. Therein we find the motive for Serb and UN apologists

18 alike to rewrite the history of Srebrenica, to absolve them both of their

19 sins towards the enclave.

20 Your Honours, we mention these political undercurrents as a

21 cautionary note only. There are those who would use the trial of Naser

22 Oric as a vehicle for a revisionist account of the war in Bosnia.

23 According to this view, the Muslims in Srebrenica, which they would have

24 personified by Oric, brought the 1995 genocide upon themselves by

25 conducting raids into Serb territory, that they were the architects of

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1 their own annihilation.

2 The UN Secretary-General spoke to this repugnant and discredited

3 thesis in the official UN report on Srebrenica. In that report he said:

4 "The Serbs repeatedly exaggerated the extent of the raids out of

5 Srebrenica as a pretext for the prosecution of a central war aim, to

6 create a geographically contiguous and ethnically pure territory along the

7 Drina, while freeing up their troops to fight in other parts of the

8 country. The extent to which this pretext was accepted at face value by

9 international actors and observers reflected the prism of moral

10 equivalency through which the conflict in Bosnia was viewed by too many

11 for too long."

12 "... the prism of moral equivalency through which the conflict in

13 Bosnia was viewed by too many for too long."

14 Moral equivalency is the creed according to which a sniper on a

15 hillside and the mother whom he guns down as she returns home are equally

16 guilty. The soldier, drunk on slivovitz who lobs shells into a crowded

17 town centre is no more good or bad than those he maims below, as they are

18 all merely warring factions. It appears that the Prosecution has

19 swallowed that creed hook, line, and sinker with their references to

20 inter-ethnic fighting, describing an inevitable spiral in which the tribes

21 of the former Yugoslavia were all at each other's throats. Nothing about

22 planning for war, arming and equipping militias, as if what happened in

23 the former Yugoslavia was only a natural disaster like an earthquake or a

24 tidal wave. We will hear soon enough about that from Dr. Gow, the

25 Prosecution's own witness.

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1 As a UN article of faith, moral equivalency is now dead and

2 buried, as the United Nations report on Srebrenica from which I just read

3 confirms, although it appears still to stalk the corridors of this

4 Tribunal from which the Prosecution said this morning. The amoral credo,

5 the moral equivalence, must not cast its shadow over these proceedings.

6 For the purpose of this trial is not to resurrect and vindicate the dead

7 peacekeeping dogma that all sides are equally guilty. It is the trial of

8 a person, Naser Oric, who is presumed innocent before this Tribunal and

9 who is entitled to an acquittal unless and until the Prosecution are able

10 to prove his guilt to you beyond a reasonable doubt.

11 It is worth taking a solemn moment to consider that principle, as

12 it is the central pillar of any civilised system of justice. Naser Oric,

13 as he appears before you now, is cloaked in complete and utter innocence

14 in the eyes of the law. He does not wear the mantle of a war criminal or

15 warlord simply because the Prosecution has chosen to bring this case

16 against him. In fact, precisely because the Prosecution brings such grave

17 charges, the presumption of innocence applies with all the more rigour.

18 Would it not be the ultimate injustice for a young man who fought

19 to defend his people from an enemy who had no qualms about slaughtering of

20 men, women, and children, to be himself convicted and sentenced by this

21 Tribunal if there is the slightest doubt as to his guilt? If there is any

22 such doubt, Naser Oric absolutely and categorically must be acquitted at

23 the end of this trial, not only for his sake, for the sake of his name,

24 his future, his family, his people, but also for the historical record and

25 for the record on which this Tribunal, too, will be judged for all time.

Page 263

1 If I may illustrate the presumption of innocence in another way,

2 and I say this also for the benefit of those following this trial, there

3 may be members of the public watching today who may know little of

4 criminal justice or indeed of this case who will be looking at Naser Oric

5 in the dock and thinking: What's he done? Well, that's precisely what

6 the presumption of innocence isn't. A better question would be: I wonder

7 why the Prosecution is bringing this case? Indeed that question may well

8 remain in Your Honours' minds after the close of the Prosecution's case,

9 in which event it will of course stop the case there and then. It's the

10 Prosecution that brings the case against Oric and it's for them to prove

11 the charges beyond a reasonable doubt. That's not a matter of proving

12 possible guilt or even probable guilt. No, it's a matter of proving guilt

13 so that no other verdict is open to you on the evidence.

14 Naser Oric has a fundamental human right to a fair trial. That

15 means, among other things, the right to be judged in accordance with the

16 evidence - solid, reliable evidence - brought by the Prosecution in

17 adversarial proceedings so that the Defence can challenge every item of

18 evidence on which the Prosecution rely.

19 The Prosecution this morning warned Your Honours to be aware of a

20 camouflage net which the Defence would throw on dubious documents. I

21 won't rise to that challenge now. That's obviously a matter for trial.

22 But even in the pre-trial stage Your Honours have seen death certificates

23 of the wrong people, Prosecution witnesses saying the documents looked

24 fishy and may have been forged. Transcripts where no tape exists. Is it

25 a camouflage net for us to raise these matters? The Prosecution would

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1 have you accept any scrap of evidence.

2 So, Your Honours, you will have to sift out the many false,

3 forged, and generally questionable documents which you've already heard

4 about and which you will continue to see exposed as such during this

5 trial. Oric is not to be judged on such doubtful material, nor is he to

6 be judged on the basis of rumours, speculation, innuendo, dubious

7 inference or leaps of faith that the Prosecution invite you to make.

8 Naser Oric asks for no more than for Your Honours to look at the cold hard

9 facts and to separate fact from fiction, the myth from the man, and when

10 this trial is over, to deliver a just verdict. And we know Your Honours

11 will do that. Thank you.

12 JUDGE AGIUS: I thank you, Mr. Jones.

13 That brings to an end what we had put on our agenda for today. I

14 wish thank you, Mr. Wubben, and you, Mr. Jones, for your cooperation,

15 particularly for sticking to the time limits that we had indicated in the

16 beginning. There are no further matters to discuss today.

17 Tomorrow morning we will reconvene at 9.00. We will proceed with

18 the guidelines that I referred to earlier and then we will try to sort out

19 all the pending matters that remained unresolved after or at the end of

20 the pre-trial conference. I should like you to make sure that we are put

21 in the position to determine most, if not all, of them tomorrow. The

22 whole sitting tomorrow will be dedicated to what's needed to be done

23 before we proceed any further. Then, please God, on Friday we will start

24 with the first witness.

25 I thank you and we will reconvene tomorrow.

Page 265

1 --- Whereupon the hearing adjourned at 1.24 p.m.,

2 to be reconvened on Thursday, the 7th day of

3 October, 2004, at 9.00 a.m.