Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16115

1 Monday, 3 April 2006

2 [Open session]

3 --- Upon commencing at 9.23 a.m.

4 [The accused entered court]

5 JUDGE AGIUS: Madam Registrar, could you call the case, please.

6 THE REGISTRAR: Good morning, Your Honours. This is case number

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

8 JUDGE AGIUS: I thank you, madam, and good morning to you.

9 Appearances -- Mr. Oric, can you follow the proceedings in your

10 own language?

11 THE ACCUSED: [Interpretation] Good morning, Your Honours, ladies

12 and gentlemen. I can follow the proceedings in my own language.

13 JUDGE AGIUS: I thank you. You may sit down and good morning to

14 you.

15 Appearances for the Prosecution.

16 THE ACCUSED: [Interpretation] Thank you.

17 MS. SELLERS: Good morning, Your Honours.

18 JUDGE AGIUS: Good morning to you.

19 MS. SELLERS: I'm Patricia Sellers for the Prosecution, and with

20 me today is co-counsel Ms. Joanne Richardson, Mr. Gramsci di Fazio, and

21 our case manager, Ms. Donnica Henry-Frijlink.

22 Good morning to the Defence.

23 JUDGE AGIUS: I thank you, Ms. Sellers, and good morning to you

24 and your team.

25 Appearances for Naser Oric.

Page 16116

1 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. Good

2 morning to my learned friends from the OTP. Vasvija Vidovic and John

3 Jones for the Defence of Mr. Oric. This morning we have with us our legal

4 assistants, Ms. Adisa Mehic, Ms. Jasmina Cosic, and our CaseMap manager,

5 Mr. Geoff Roberts.

6 JUDGE AGIUS: I thank you, Ms. Vidovic, and good morning to you

7 and your team.

8 Any preliminaries? I see none.

9 MS. SELLERS: No, Your Honour.

10 JUDGE AGIUS: Just --

11 MS. VIDOVIC: [Interpretation] No, Your Honour.

12 JUDGE AGIUS: Thank you. We have discussed this, Judge

13 Brydensholt, Judge Eser and myself, and we feel it is our responsibility

14 for this case and also for the future to state that -- put on record,

15 rather, our unhappiness at the way the Prosecution conducted or finalised

16 its filing of the final briefs. It's regrettable. It caused us a lot of

17 inconvenience, and we just hope that this will never happen again.

18 But let's not waste more or lose more time on this.

19 Yes, Ms. Sellers?

20 MS. SELLERS: Your Honour, might I just state for the record that

21 the Prosecution also regrets the inconvenience caused to the Trial Chamber

22 and also caused to the Defence.

23 JUDGE AGIUS: I thank you. I'm sure you do, Ms. Sellers. I had

24 never any doubts in my mind.

25 Just also so that the public will be aware why we are starting

Page 16117

1 late this morning, there was a technical fault with the video recording

2 system. I thank the technical staff for having found a remedy to that

3 earlier than expected. So, of course, the time that you have lost,

4 Ms. Sellers, you will be able to recover on Friday, and if that is not

5 possible, then on Monday. We have allowed still -- kept Monday in -- open

6 for any further submissions that may become necessary.

7 Yes. Who is going to address the Chamber? Ms. Sellers?

8 MS. SELLERS: Your Honour, I'll be addressing the Chamber first,

9 and I'll be followed by co-counsel Gramsci di Fazio and during, of course,

10 possibly of later today or tomorrow, Ms. Joanne Richardson will be

11 addressing the Trial Chamber.

12 If I might, I would like to start, Your Honour.

13 JUDGE AGIUS: Yes, go ahead, please. Thank you.

14 MS. SELLERS: Today the Trial Chamber will hear the closing

15 arguments of both parties in the Prosecutor versus Naser Oric. In its

16 judgement, the Trial Chamber will address the crimes committed against

17 Bosnian Serb victims in Srebrenica and Bratunac municipalities in

18 Bosnia-Herzegovina in 1992 and early 1993.

19 The Trial Chamber will take the serious duty of adjudicating the

20 evidence that has been adduced against Naser Oric as a perpetrator of

21 those crimes. Your Honours, we would briefly like to recapitulate the

22 Prosecution's case in this introduction to you.

23 Before doing that, we would like to state that the role of the

24 International Criminal Tribunal for Yugoslavia has the obligation to

25 prosecute irrespective of the perpetrating party, irrespective of whether

Page 16118

1 the aggressor eventually becomes the victor or the victim of the armed

2 conflict. It is that solemn duty that you have been charged with in this

3 case.

4 In the mid-1992 period, in Srebrenica municipality, in

5 Bosnia-Herzegovina, and until 1993, there was the outbreak of armed

6 conflict. The armed conflict was both civil and international. During

7 the armed conflict in that region, Serb villages were attacked, civilian

8 houses were burned and destroyed, civilian property such as barns, such as

9 livestock, was also attacked and destroyed. And Serb civilians and Serbs

10 who might have been participating in this armed conflict were taken as

11 prisoners to the town of Srebrenica. It is during those battles in 1992

12 and 1993, but even prior to the battles that are in the attacks that are

13 in our indictment that Naser Oric was considered a hero, a valiant

14 defender, a brave resister.

15 Now, Your Honours know that there is no doubt that these attacks

16 took place. The Prosecution alleged that within the attacks of Rakovica,

17 Jezestica, Fakovici, Bjelovac, Kravica and the surrounding hamlets that

18 crimes took place. And there is not any reasonable doubt that these

19 villages were destroyed, that they were burned, that the inhabitants could

20 not come back and live in those villages after the attacks.

21 The Prosecution has shown that the attacks were organised, they

22 were planned, they were carried out from one location, with soldiers

23 moving from Srebrenica to attack the village. They went across at times

24 confrontation lines, went into the land of the other fighting party, the

25 territory. Groups, various groups, joined together, attacked in unison.

Page 16119

1 Now, we would like to remind the Trial Chamber in several

2 different manners that these were not attacks led by civilians rising

3 en masse. This is not a levee en masse to defend themselves from invading

4 forces. That's the reason that we are using the word specifically. They

5 were attacking forces. These were not incidents of spontaneous uprisings,

6 they are incidents of planned, organised attacks. No one was approaching

7 their village. These soldiers went to other villages. The very opposite

8 of levee en masse.

9 The fighters, and at times they are misnomered. They are called

10 Muslim fighters, they are called members of the Territorial Defence,

11 members of the army of Srebrenica, members of the army of

12 Bosnia-Herzegovina. These soldiers in the attacks that the Prosecutor has

13 alleged were under the control, the effective control of Naser Oric.

14 During the attacks they inflicted wanton destruction. Destruction

15 that is beyond military necessity, beyond what was legal. Therein, crimes

16 were committed. They also detained prisoners, mistreated them, in some

17 cases murdering them after they were brought back from Srebrenica --

18 brought back into the town of Srebrenica.

19 The Prosecution's case against Naser Oric as a commander is

20 because he is responsible for the crimes committed by his subordinates and

21 at times he aided and abetted the commission of the crimes. Burning and

22 destruction was a pattern and became a policy. Serb prisoners were a

23 necessity in order to exchange, exchange for Muslim soldiers, exchange for

24 Muslim dead soldiers at times.

25 The real question that is before Your Honours, real questions of

Page 16120

1 this case, is whether Naser Oric was the commander of these forces, did he

2 have effective control, and if so, did he fail to prevent or punish these

3 crimes? That's what Your Honours are going to be looking at. That is the

4 evidence that has to be evaluated and put into the proper legal framework.

5 The answer to each of those questions is yes. The Prosecution's

6 evidence proved that Naser Oric was the commander of the subordinates who

7 committed the crime. And the Prosecution's evidence proved that Naser

8 Oric exercised effective control over those subordinates.

9 The Prosecution's evidence has also proved that Naser Oric

10 failed. He failed to prevent crimes of wanton destruction in the Serb

11 villages, and he failed to prevent murders and cruel treatment that took

12 place in the detention cells in Srebrenica. Naser Oric failed to prevent,

13 he failed to punish, those who committed the crimes. The Prosecution's

14 evidence has proved beyond a reasonable doubt that Naser Oric is guilty as

15 charged for those crimes against Bosnian Serb victims, as alleged in the

16 Prosecutor's amended indictment.

17 Now, the Prosecution will not take the opportunity during these

18 closing arguments to recount every fact. The Trial Chamber has seen

19 numerous oral pleadings, heard many witnesses, you have received 92 bis

20 statements, you received 94 bis statements, you have seen expert

21 witnesses, you have called your own expert. You have also had the benefit

22 of final pleadings, written and now oral.

23 You have been paying careful attention to the facts. The

24 Prosecution has noted the questions that you have asked and at times the

25 corrections that you have made in the questions that we have asked. We

Page 16121

1 know that you have been attentive.

2 What we will try and do with this closing argument is to clear the

3 smoke in the burning villages that the Defence would prefer that you

4 surround yourself in. We will attempt to untie the double knots of

5 contradiction that permeates the Defence theories. We hope to give you

6 those valuable turning points as one looks at the evidence, as one ponders

7 the evidence, to understand that it only leads in one direction, and that

8 will be a conviction for Naser Oric.

9 Naser Oric was a commander of the Srebrenica armed forces. The

10 documents do not camouflage that truth. They reveal that truth. Hence

11 the importance of accusing them to be forgeries, to be false, to be kept

12 out at any price. Naser Oric had effective control over his

13 subordinates. The Prosecution claims and has proven that he chose not to

14 exercise it. He chose not to prevent or punish. Naser Oric knew of the

15 crimes against Serbs and he chose to ignore them.

16 He should have known. He should have known of the crimes, if he

17 didn't actually know. The truth is he knew and he chose at times not to

18 avail himself of the information because he didn't want to incur the wrath

19 of his soldiers who were very loyal to him. And he did not want to incur

20 the wrath or possibly further heartache of Muslim civilians who had lost

21 much during the war. He chose not to respect the law at the cost of the

22 Serbian victims.

23 Naser Oric had the reasonable means, the material ability, he had

24 the use of communication, multi-levels of communication, both within the

25 Srebrenica enclave and, when necessary, to reach outside of the enclave.

Page 16122

1 He had the use of institutions that didn't function perfectly but that

2 functioned sufficiently in order for him to prevent or punish or in the

3 very least make inquiry to discipline those who were insubordinate. He

4 chose when to use but most important he chose when not to use, when to

5 ignore this material ability. He used it for other things but not to

6 punish crimes committed against Serbs.

7 Now, before the Prosecution proceeds to the few selected facts

8 that it would like to put forward to you in its closing arguments, I would

9 like to make three stops at legal street lights.

10 The Defence showed these lights, positioned these lights, in the

11 wrong direction. They did not shine where they could clarify what Your

12 Honours need to understand. They played with the shadows. The first of

13 the legal stop lights is the levee en masse.

14 What is a levee en masse? In many ways it's a very nice

15 descriptive term that even we as lawyers and often as lay people describe

16 an event, spontaneous uprising, people are defending themselves, or

17 consistent defending, that's a levee en masse. We can use it loosely

18 outside of the Trial Chamber. We can use it loosely in the street. It's

19 a wonderful sound bite for journalists. Your Honours have to use it

20 within its legal meaning. A levee en masse is a concept under

21 international humanitarian law because it relates to whether certain

22 persons will get protection, the protection of humanitarian law. And

23 while it's quite recognised that members of regular armies become

24 prisoners of war, there is a question in humanitarian law whether persons

25 who spontaneously take arms to defend their villages, should they be

Page 16123

1 afforded those same protections as soldiers? Hence the invention of the

2 concept of levee en masse under humanitarian law. I would ask Your

3 Honours to join with me in carefully analysing what is a levee en masse.

4 The legal meaning.

5 The levee en masse relates to inhabitants of non-occupied

6 territories who, on the approach of the enemy, spontaneously take up arms

7 to resist the invading forces without having had time to form themselves

8 into regular armed units. It's a short-term solution.

9 Now, the Prosecution concedes that there it was a levee en masse

10 in Srebrenica. It happened around April 17th, probably up until May 17th,

11 various groups, that when Serbs were coming into their town, into

12 Srebrenica, took up arms to expulse them.

13 JUDGE AGIUS: 1992 or 1993?

14 MS. SELLERS: Your Honour, I'm speaking of 1992. Thank you for

15 the clarification.

16 That short-term levee en masse is what gives us our self-organised

17 groups and even gives us some of the heroic profiles of some of the

18 persons in those groups. A levee en masse does not have a command

19 structure due to its spontaneous nature. A levee en masse is

20 preorganisation.

21 The then-fighters in Srebrenica decided to become soldiers, more

22 organised combatants, and hence the levee en masse in Srebrenica ends in

23 the Prosecution's point of view certainly, for certain groups, on the 20th

24 of May.

25 Now, the Srebrenica fighters, after the 20th of May, decided to do

Page 16124

1 two things that levee en masse certainly does not countenance. They

2 decided to name a commander, decided to set up a staff, decided to give

3 themselves a name, Territorial Defence. 25 days later they decided to

4 incorporate more people, more groups, within their organisation and start

5 to set up detachment services, military police, military war hospital,

6 communication system. That's not a levee en masse, Your Honours. The

7 Defence would have us believe that the levee en masse continued throughout

8 1992, throughout 1993. It's impossible. It didn't happen.

9 Your Honour, I would also like to point out to you that the

10 levee en masse concept depends that the enemy is approaching. The attacks

11 that we have charged on the armed forces of Srebrenica, the Territorial

12 Defence of Srebrenica, approaching other villages.

13 There is no factual basis for a levee en masse.

14 Even if some witnesses have come with the very best intentions of

15 describing fighters, combatants, rag-tag bearers of arms in March of 1993

16 or April of 1993 as levee en masse, that was a descriptive term absent of

17 its legal significance. Inapplicable to the situation we have.

18 Ambassador Arria with the best intentions responded that yes,

19 there was a levee en masse. And he extended it, not just to Srebrenica

20 but when one looks at the testimony, and that's transcript page 14330. He

21 testified that the BiH army, the army of Bosnia-Herzegovina, was more like

22 a levee en masse than an army. That's incorrect, although well intended.

23 And even the testimony of Mr. Tucker was mistaken in his

24 characterisation of a levee en masse being present in Srebrenica in March

25 of 1993.

Page 16125

1 Well intentioned --

2 JUDGE AGIUS: Can I stop you here, Ms. Sellers, for a moment?

3 MS. SELLERS: Certainly, Your Honour.

4 JUDGE AGIUS: Do you agree also that you did not re-examine either

5 one or the other after their testimony to contest this to them, both Pyers

6 Tucker and Ambassador Arria?

7 MS. SELLERS: Your Honour, yes, we agree to that. And also the

8 reason we agree to that, those were descriptive terms. We were not

9 challenging them on the legal significance of the term at that time.

10 JUDGE AGIUS: Thank you.

11 MS. SELLERS: Your Honour, so the street light that shows

12 levee en masse as being a reason, a justification, or proof of why there

13 was no command structure in Srebrenica will misguide you, will lead you

14 down the wrong street. It is legally inapplicable and even its

15 descriptive terms do not assist us in our endeavour.

16 I would now like to move to the next street light where we need

17 clarification, and that is the difference between necessity and military

18 necessity.

19 Your Honours are well aware of the 98 bis decision, and certainly

20 in that decision, you made a pronouncement. And if you would

21 permit me to read it. "The Trial Chamber found on page 4 that it did not

22 require further evidence from the Defence regarding" -- and this is in

23 quotes: "The urgent necessity for the Bosnian Muslims to attack villages

24 and hamlets named in the indictment in order to try and secure food,

25 medicine and weapons for the purpose of the survival of the Muslim

Page 16126

1 population in Srebrenica. This limitation does not in any way mean that

2 the Trial Chamber does not require any further evidence that the Defence

3 may wish to advance in relation to the aspect of military necessity to

4 engage in wanton destruction as alleged in Counts 3 and 5 of the

5 indictment."

6 There is a distinction that you've made between military necessity

7 and what you are referring to as necessity in the attacks.

8 Now, the question of necessity in the attacks, necessity to

9 attack, jus ad bellem not jus in bello, can one attack, not what does one

10 do during the attack, cannot be conflated as the Defence has tried to do.

11 The Defence confuses the necessity resorting to force, let's say even

12 going into the attacks, even though we are in an armed conflict within

13 Bosnia-Herzegovina and the concept of military necessity. In its closing

14 brief, it cites that there was a vital military necessity to launch the

15 attack, to save the civilian lives from Serb attacks and to avert death

16 from starvation, shelling. A more imperative justification for an action

17 cannot be imagined. Bjelovac was without question a military objective.

18 This is not the same thing as military necessity in terms of

19 wanton destruction. As a matter of fact, they have enlarged the ideal of

20 what Your Honours was referring to as necessity more in a general sense in

21 trying to make it a military necessity to attack in a broader sense.

22 Can I stop for a moment? Was that --

23 JUDGE AGIUS: No. I just was looking around because I heard a

24 noise coming from somewhere and I don't quite know what it is. And I'm

25 saying it because at a certain point in time, also, the transcript that

Page 16127












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 16128

1 appears on the main monitor -- I just saw a part of it being highlighted

2 and that's something that we cannot do ourselves on that monitor, so two

3 curious things happened.

4 So anyway, let's proceed. I don't want to interrupt you in any

5 way, Ms. Sellers.


7 Your Honour, the Defence goes on to state in relationship to the

8 attack of Bjelovac that the Prosecution never mentioned a single word to

9 the Trial Chamber about the horrific suffering of the Muslim population in

10 the area. For those Muslim civilians, in December 1992, Bjelovac meant

11 death by starvation or shelling. There was no alternative for them but to

12 attack. The Prosecution maintains that if it did not mention the horrific

13 suffering, it was for the reason that this justification for the

14 Srebrenica armed forces to resort to armed force in Bjelovac in the first

15 place was not legally relevant. Your Honours did not say, Show me the

16 military necessity of the attack. It's not relevant to the question of

17 whether Naser Oric's forces conducted themselves in a legal manner during

18 the attack in accordance with humanitarian law.

19 This distinction that Your Honours have set out in the 98 bis is a

20 distinction that goes in many ways to the heart of the jurisprudence of

21 the Tribunal and humanitarian law. Whether you be a levee en masse,

22 whether you be a regularly formed army, it is how you conduct yourself in

23 war that we examine in terms of war crimes. The Defence would have the

24 justification for attack, which is not part of our Statute. We do not

25 have the crime of aggression, although the war in this instance has

Page 16129

1 already started. The Defence would have you look at that to be the

2 justification for anything that occurred during the attack. But we know,

3 Your Honours are well aware, I preach to the choir here, that you cannot

4 deliberately attack civilian objects. We have appellate jurisprudence on

5 that, Hadzihasanovic. But it's a very well known doctrine of humanitarian

6 law. To conflate the entire town of Bjelovac as a legitimate military

7 target is to allow for attacks to occur on civilian objects. To say that

8 the entire town of Fakovici, Rakovici must be attacked and whatever

9 happens there is military necessity is to allow in the back door attacking

10 of civilian objects.

11 Your Honours in your 98 bis set forth a standard that's being

12 misinterpreted. For those reasons, the Prosecution has chosen just to

13 remind you and to shine light in a different direction, to allow us to get

14 back to the central issue.

15 What was legitimacy of the conduct of Naser Oric's subordinates

16 during the attacks? They committed crimes, Your Honour. They committed

17 wanton destruction that was beyond the military necessity of the acts

18 during the attack and right after.

19 If I might also now walk you to our third street light. And

20 that's the issue of coordination. And I'm going to speak about

21 coordination on two different opportunities. In this first opportunity,

22 I'd like to draw your attention to the Defence's use of coordination, what

23 they have cited in their closing brief, is coordination in relationship to

24 the overall control when determining the existence or not of an

25 international armed conflict.

Page 16130

1 Your Honours, and particularly I have to say, Judge Agius, because

2 you've written the Brdjanin decision, understand that there is discussion,

3 elements, of the role of coordination when one wants to find the overall,

4 the overall control that another state might have over the army in a third

5 state. That's just part of the test of international armed conflict. In

6 order to determine that overall control, one looks at factors of

7 coordination, coordination of that army in the third state.

8 The Defence in raising this issue to say that coordination as

9 cited under the Tadic decision was leading in our case is extremely

10 misguided, if in the misleading. The Tadic Trial Chamber decision that

11 talked about coordination was overturned by the Tadic Appeals Chamber

12 decision. The Tadic Appeals Chamber decision said that coordination,

13 overall coordination in relationship to international armed conflict can

14 be a factor in establishing whether that second state governs the army and

15 the armed forces of a third state. They were not speaking about

16 coordination in relationship to command as Your Honours must discuss, must

17 evaluate, under Article 7(3).

18 Your Honour, I think I'm quite certain that the coordination of

19 the international armed conflict, the Defence would be more than willing

20 to concede. They have agreed with the evidence that we've led on Gow to

21 say that the armed conflict that occurred in Srebrenica had elements,

22 relationships, ties, to Serbia, Serbia and Montenegro. It is not this

23 coordination that the Trial Chamber has to be concerned with. So we would

24 just like to shine the light there for a second.

25 I would now ask you to consider that the ability, the ability to

Page 16131

1 misread the law, might affect the ability to evaluate and understand the

2 facts on the part of the Defence. If they are mistaken, then one has to

3 readjust. If this is their intentional reading of the law, then Your

4 Honours will just have to find that to be erroneous.

5 The Prosecution will proceed now with its body of arguments. I'd

6 just like to outline those for you.

7 First, the evidence of Naser Oric as a commander will be reviewed

8 together with the evidence of a selection, small selection, of his

9 subordinates, those that I call the wild bunch, because that's how we've

10 been led to believe that they are. We will look at coordination as it

11 relates to command again, under Article 7(3), in its proper sense, its

12 proper context.

13 Next, the Prosecution will continue to address the convincing

14 relevant documents that prove Naser Oric's guilt and that cannot be

15 unlinked, cannot be seen without the totality of all the evidence. And

16 subsequent to the authenticity of documents - and I say authenticity in

17 its broadest sense, Your Honour, I'm not just speaking of forensic

18 handwriting examination - the Prosecution will return to a few pertinent

19 issues related to the crime base. We will not go day by day or verse by

20 verse. We will rush you to some areas that need to be revisited. The

21 attacks in the villages, the murders and the cruel treatment in the

22 prison, you're well aware of how they occurred. We just like to comment

23 on how they must be viewed in the judgement.

24 There will be certain points about effective control that we would

25 also like to revisit with you. We've place arguments in our closing brief

Page 16132

1 and in the replies, as has the Defence. We would like to speak a bit more

2 about communication and the reasonable means available to Naser Oric.

3 Prior to concluding, the Prosecution will finally turn to

4 evaluation of witness testimony.

5 We would like to thank you in advance for your attention and, of

6 course, we are available for your questions. We proceed by stating the

7 Prosecution does not deny Naser Oric or the people of Srebrenica the right

8 to defend themselves. They are denied the right to destroy wantonly.

9 There is a right to detain persons of the enemy during an armed conflict.

10 There is no right to mistreat them, including murder. The Prosecution's

11 case has focused on those elements and has proven those elements beyond a

12 reasonable doubt.

13 Your Honours, right now I'd like to return to the issue of

14 Naser Oric as a superior.

15 The evidence is irrefutable. Naser Oric was a superior. In the

16 very least, if we just go with the Defence's put forward, he's a superior

17 of the Potocari group. He's a commander there. The Potocari group is a

18 bit more extensive than the 15 or 20 lads that hung around him. But, Your

19 Honours, that's not the truth. Naser Oric was a commander, a superior, of

20 a much larger force, an increasingly growing force; ever since the 20th of

21 May, 1992, the Srebrenica Territorial Defence, and then the Srebrenica

22 armed forces. Now we have laid that out in both the closing brief and

23 elements of the reply.

24 The Srebrenica Territorial Defence, one could look at as being

25 de facto. It wasn't anointed from Sarajevo or Tuzla when it was first

Page 16133

1 created. It's not de jure, it's not legitimate. It's only an election.

2 Naser Oric assumed responsibility, commandership after being elected. And

3 others became subordinate to him.

4 I'd like to remind you of the testimony of Becir Bogilovic, one of

5 the few witnesses that we have who was present at the meeting. Judge

6 Agius questioned him and said, you asked: "When the members present at

7 that meeting had an option of two persons to choose from as commander,

8 what did they really have to choose about? A person who would then do

9 what? Be what? And don't try avoid answering my question. The delegates

10 there had two persons to choose from, Naser Oric and the other one,

11 Ustic."

12 Mr. Bogilovic says: "Yes."

13 Judge Agius then says: "And they chose Naser Oric. They chose

14 him as what?

15 Mr. Bogilovic responds: "To be commander."

16 Judge Agius then asks: "Commander of what?"

17 And Mr. Bogilovic says: "Of the staff of the Territorial

18 Defence."

19 Judge Agius's next question is: "Well, which would include whom?"

20 And then Mr. Bogilovic says: "Which would include the villages

21 that were present."

22 The Prosecution agrees. There is a transcript at 6512 through

23 6513.

24 The villages that were present on the 20th of May. Later on,

25 other villages, other what were self-organised groups decided to join the

Page 16134

1 Srebrenica Territorial Defence.

2 Now, the Defence at times would have us believe that the meeting

3 didn't take place, or if it took place, Naser Oric wasn't elected

4 commander; or if he was elected commander, that the groups that were under

5 him stayed those minimal groups from Bajramovici throughout the entire

6 armed conflict. The contrary, the contrary, the absolute contrary, is

7 true. That's the beginning, in the very least, of the de facto

8 organisation. That's the beginning of Naser Oric being commander and in a

9 sense larger than just the Potocari lads.

10 Naser Oric moves on to command not only the Srebrenica TO, the

11 army, the 8th Operational Group, he remains as a commander until the end

12 of the armed conflict. At times he's referred to as colonel, more often

13 as commander.

14 Your Honour, there is no person better to talk about the truth,

15 the Bajramovici meeting, what occurred there, how the staff was developed,

16 tasks that the staff undertook, than Commander Naser Oric himself.

17 I would ask you to draw your attention to this short video.

18 Your Honour, could you wait one more minute? There is no sound.

19 We are having slight technical difficulties also.

20 Your Honour, I believe we are getting assistance from the booth.

21 JUDGE AGIUS: For the record, could you indicate the reference of

22 this exhibit, please?

23 MS. SELLERS: Yes, Your Honour. This is P441, I understand.

24 JUDGE AGIUS: And for the record, it starts, according to what I

25 can see on the monitor, at 12 minutes, 13 seconds, .4.

Page 16135

1 MS. SELLERS: Yes, Your Honour.

2 JUDGE AGIUS: We still don't have any sound, Ms. Sellers.

3 MS. SELLERS: I believe the booth is speaking now to the

4 Registrar. We will find out whether it will come or whether we'll move

5 on.

6 [Trial Chamber and registrar confer]

7 JUDGE AGIUS: For your information, I'm informed that in the

8 booths themselves, they do have sound so they are sending someone to see

9 what's wrong.

10 THE INTERPRETER: The interpreters have no sound. No sound in the

11 interpreters' booths.

12 JUDGE AGIUS: I would imagine that the interpreters haven't got

13 any sound either. What I said is it's in the technician's room that they

14 have sound. So they are trying to find out exactly where the fault lies

15 so that we can then be able to follow.

16 [Videotape played]

17 JUDGE AGIUS: One moment. If we could stop, rewind to where we

18 should be starting, in other words, at 12 minutes 13.4 seconds, so that

19 the interpreters can -- are not taken by surprise and they can start

20 translating at the ordinary pace. All right?

21 [Videotape played]

22 "THE INTERPRETER: [Voiceover] The Municipal Assembly of

23 Srebrenica, the cultural centre and the cultural club Srebrenica, I call

24 the commander of the 8th Operations Group, Mr. Naser Oric, to open.

25 Before, before I begin, I want to greet everyone present and

Page 16136

1 congratulate all fighters and people on Kurban Bajram. Dear guests,

2 officers, and soldiers, we have gathered here today to mark the day when

3 the staff of the Srebrenica Territorial Defence was founded, the staff

4 that developed into a command body of the Srebrenica armed forces, and the

5 formation and the command of the 8th Operations Group of the army of the

6 Republic of Bosnia-Herzegovina within the structure of the 2nd Corps.

7 Such gatherings are always an opportunity to recall the very beginning of

8 the war. Precisely 25 months ago, the people in Eastern Bosnia fell into

9 a trap of unilateral fascist wave poisoned with nationalist ineradicable

10 barbarianism in the centre of Europe, a story that has lasted 25 months so

11 far and I do not know how long still, of the Muslim Bosniak people cannot

12 be told at one such gathering, I hope this time, without demagogic

13 approaches, but I must remind you that two years ago today the staff of

14 the Srebrenica Territorial Defence was founded.

15 "Leaders, the then-municipal and party politicians, the

16 bare-handed Muslim people entered a defence war unrecorded in history.

17 Self-organised, the first battles began on the 20th of April, 1992, in

18 Potocari followed by the defence of Suceska on the 1st and 2nd May, 1992.

19 The combat in the town of Srebrenica on the 5th, 6th and 7th of May, a

20 sabotage on the 7th of May, 1992, in Potincenje near Ormace, the first

21 combat actions at Vidikovac on the 8th of May, 1992, and on the 15th of

22 May, 1992, in the region of [inaudible]. On the 16th of May, 1992, the

23 combat at [inaudible] and so on. The combat success commanding officers

24 of the self-organised units met two years ago to this day in Bajramovici

25 and established a joint command of the entire [inaudible] of the

Page 16137

1 Srebrenica staff.

2 "I will not bother you today with all the tasks and decisions

3 performed by the staff in the past period. I shall just mention that the

4 staff members had to perform for us the duties that for the enemy were

5 done by the generals of the notorious former Yugoslav People's Army

6 together with all the support services. Combatants under the command of

7 the staff stand in a life-and-death struggle succeeded in winning a large

8 number of victories, such as the battles at Zalazje, Brezani, Podravanje,

9 Krise, Voljavica, Bjelovac, Glogova, Kamenice, Kravica and so on. And

10 each of those, how it was performed, will remain an enigma."

11 JUDGE AGIUS: For the record, the video stops at 15 minutes 28.7

12 seconds.

13 MS. SELLERS: Your Honours, you have seen this video before. The

14 Prosecution says that that image that not only of Naser Oric but Naser

15 Oric remembering a very historical moment in the organisation of the

16 Srebrenica Territorial Defence Staff, praises the staff and started

17 commanding troops under it.

18 He verifies what happened on the 20th of May, 1992, and the result

19 of the organisation going into battles in places such as Bjelovac. What

20 Naser Oric says in this tape is in direct contrast to what many defence

21 witnesses have said occurred on that day. I believe that Your Honours can

22 judge for themselves the veracity of the Prosecution evidence concerning

23 the 20th of May and the evolving nature of the Territorial Defence Staff

24 and Naser Oric as a superior.

25 I would note that after two years, when the historic event is

Page 16138

1 being celebrated, Naser Oric is still in command. He has not resigned as

2 commander. He was not the first commander succeeded by the second or the

3 third. He remains in command. And although the organisation, the

4 military organisation, evolves, he evolves always with the organisation,

5 always as its superior, its commander. But let's just stay in 1992 for a

6 moment, particularly the summer of 1992, and Your Honours, I would just

7 like you to briefly look at a portion of the suspect interview of Naser

8 Oric where they will be referring to a document, a document dated on the

9 3rd of July.

10 I would ask that this exhibit from the Prosecution, P329, be

11 shown.

12 [Videotape played]

13 "Next document 3rd of July. Again, is that your signature on the

14 document?"

15 JUDGE AGIUS: One moment, stop one moment, because I want to make

16 sure of one thing.

17 In our very last sitting we had before this one, if I remember

18 well, you had replaced or asked to replace 328 and 329 with two new

19 exhibits.

20 MS. SELLERS: Yes, Your Honour.

21 JUDGE AGIUS: P6 -- I forgot the numbers, of course, but basically

22 they are the two last two exhibits number wise of the Prosecution.

23 Which one are you using now? Are you using the old 328 and 329 or

24 the new 6 whatever which contained supposedly, if I understood you well, a

25 corrected transcript?

Page 16139

1 MS. SELLERS: Yes, certainly, Your Honour. I'm having the

2 verification of that now.

3 Your Honour, I believe that only one portion of it was actually

4 changed and -- two portions. And the portion that we are looking at now

5 was not one much those portions that was changed.

6 JUDGE AGIUS: Is that clear enough for the Defence? Can you

7 follow, Mr. Jones, Madam Vidovic?

8 MS. VIDOVIC: [Interpretation] Yes, Your Honour. As usual, we have

9 to.

10 JUDGE AGIUS: Okay. Thank you. No one is forcing you. If it's

11 not clear enough for you, we can ask the Prosecution to be clearer.

12 MS. VIDOVIC: [Interpretation] Yes, Your Honour. We will retain

13 our right of discretion to comment on what is going to be said tomorrow.

14 JUDGE AGIUS: Yes. So for the record, we are -- one moment. We

15 start from the beginning, please. At 3 hours, 7 minutes, 27.8 seconds.

16 [Videotape played]

17 "3rd of July. Again, is that your signature on the document?

18 "Yes.

19 "And have you read the document, and is there anything in the

20 document that you can point to that is untrue?

21 "There is nothing unusual here.

22 "It refers to, for example, the number of soldiers or more than a

23 certain amount of soldiers who have died, and a large number of wounded.

24 Now that [indiscernible] does that refer to Muslim wounded or Serbian

25 wounded?

Page 16140












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 16141

1 "He's talking about the heaviest attacks to date on positions

2 which our forces [indiscernible] that means that the Chetniks were

3 attacking our positions. And it says here in the early morning hours,

4 attack was carried out by extremists. And then it mentions the points the

5 Chetniks were attacking. That is, attacking our forces. It says that on

6 these points an attack was carried out which forces of the Srebrenica

7 Territorial Defence repelled. And then it says how many of our fighters

8 were killed and how many wounded members of the Srebrenica Territorial

9 Defence. And then it mentions with what forces the Chetniks attacked.

10 These were all what they assumed because they wouldn't have been able to

11 say exactly. Nobody would have been able to say whether it was an 84 tank

12 or a T55 or -- the 120-millimetre mortar shells they would have been able

13 to [indiscernible]. The number of shells that fell on our positions is

14 100 per cent correct, because there was someone who would count them. His

15 name is Mustafa Sacirovic. His name -- he -- this man sat and counted the

16 incoming explosions. His name is Mustafa, M-u-s-t-a-f-a, Sacirovic,

17 S-a-c-i-r-o-v-i-c. He is still alive. And then it explains what kind of

18 shells these were and where they fell. And it -- and it says here, it

19 says here that the attack started in the early morning hours and continued

20 until 6.00 in the afternoon and that 20 Chetniks were killed and a large

21 number were wounded."

22 MS. SELLERS: Your Honours, I'm going to now ask you to look at

23 the document that is being referred to in this video.

24 JUDGE AGIUS: Before you do so, I was going to precisely to ask

25 you to do that, but the video stopped at 3 hours, 11 minutes, 48.8

Page 16142

1 seconds.

2 Yes. And the 3rd July document is, according to what I see on the

3 monitor --

4 MS. SELLERS: This is P25.

5 JUDGE AGIUS: This is P25, all right. And the number on the top

6 left -- right-hand corner, is that the ERN number, Ms. Sellers, or not?

7 Because I see it starts with a 0-1.

8 MS. SELLERS: Yes, Your Honour. I believe it is.

9 JUDGE AGIUS: So the ERN number is 01801594. Thank you.

10 MS. SELLERS: Your Honour, you have the B/C/S version on Sanction

11 now, and I just have that up for a couple of reasons. Go back to the

12 B/C/S version.

13 Your Honour, if you will note that this is a document that has

14 been received, stamped and received, and that's indicated in the upper

15 right-hand corner, and, Your Honour, you will note that the document is

16 the 3rd of July, 1992, and that Mr. Oric, during his suspect interview,

17 says that the document -- it's normal, it's ordinary, yes, it looks fine

18 to him, and he was asked, Well, did you sign this document? He looked at

19 it and he said, yes, it's a document that he signed, that he had prior

20 notice of. It's normal in the course of the business.

21 Well, what business are we talking about? The Srebrenica

22 Territorial Defence, we are talking about, and Territorial Defence at this

23 point composed of fighters. In this instance, he's describing a battle

24 where he's defending, his fighters are defending a position. We also know

25 his fighters attack, his soldiers attack.

Page 16143

1 The detail in the document is a detail that a military person

2 certainly would find to be relevant and pertinent. If Your Honours

3 remember the day that that testimony was first taken, those of us who are

4 not military specialists were wondering what did trig, mean, what was a

5 trig point?

6 Your Honours will also notice from this document that it's a

7 document that's reporting, giving information to a higher military

8 authority. The organisation of the Srebrenica territorial forces is

9 consolidating, is informing military authorities outside of Srebrenica.

10 The commander, who was elected commander on the 20th of May, 1992,

11 continues in that function and reports to a military hierarchy or in the

12 very least informs them of military actions in Srebrenica.

13 I would now like you to see the English version in Sanction, and

14 in this very ordinary, very ordinary document, Naser Oric assures us that

15 the most violent attacks so far held by the forces, the forces of the

16 Srebrenica TO have been performed in the early morning hours of the 2nd of

17 July. There have been other attacks that they participated in prior to

18 this. He's not mentioning individual TO units. He's talking about the

19 forces of the Srebrenica TO. We remember from the testimony that

20 Mr. Bogilovic was injured while fighting in Likari or going to Likari to

21 fight on the 2nd of July. There is testimony corroborating the day of

22 fighting that the Srebrenica armed forces participated in, and that's what

23 Commander Naser Oric is informing those military hierarchy outside of the

24 enclave about.

25 We remember also testimony about the different shells, people

Page 16144

1 counting shells.

2 Naser Oric is a superior by his own account, in P25. How does he

3 sign that, Your Honour? "Srebrenica TO commander." Signed and stamped.

4 I would now like to continue, but, Your Honours, I have a question

5 to ask. Will we be finalising at 10.30 for the break or will we be

6 going --

7 JUDGE AGIUS: I would say we will stop at 11.00 rather than -- we

8 started at 9.30 anyway. Is that all right with the interpreters and

9 the -- all right. I see the French booth. The other booths, all right?

10 With the technicians? Because the technicians, of course, have been

11 working before the -- we started.

12 I see no objection so we will have a break at 11.00. You tell me

13 whether you prefer 25 or 30 minutes. And then we will resume soon after.

14 MS. SELLERS: Okay, Your Honours, then I'll proceed.

15 JUDGE AGIUS: Yes, until 11.00 and we'll have a break then.

16 One moment.

17 [Trial Chamber confers]

18 JUDGE AGIUS: Yes, the break will be at 11.00, Ms. Sellers,

19 please. Thank you.

20 MS. SELLERS: Now, Your Honours, up to this point in time, the

21 Srebrenica Territorial Defence has been undertaking, they say, a joint

22 command. Let there be no confusion. There is a joint command, there is

23 one top commander. Joint command does not mean that all the local

24 commanders are at the same level. Even if we go to the first among equal

25 theories that we've heard by Rex Dudley, Rex Dudley who never met Naser

Page 16145

1 Oric, although he asked repeatedly, there is only one commander of the

2 Srebrenica TO. There are local commanders.

3 But let's proceed along in that time period and, Your Honour, I

4 would like to see if you would look at P76 with me for a moment. It's in

5 Sanction. This is its version in English, and it's a document that has

6 come from Sarajevo. We not only have Naser Oric writing to the military

7 authorities outside of Srebrenica; we have them responding. There is a

8 military relationship going on between Naser Oric and other commanders.

9 Document P76 is very brief. It only has, in essence, two facts

10 that it wants to convey. One is the appointment of Naser Oric, commander

11 of the Srebrenica municipality TO, Territorial Defence Staff, and the

12 appointment is to be carried out immediately.

13 Now, of course, the document that we just saw before, P25, might

14 have been sent prior to the receipt of P76. Maybe that's why Naser Oric

15 even though he thinks P25 is normal, he signs as commander of the

16 Srebrenica TO and not commander of the Srebrenica municipality TO. But,

17 Your Honour, what we are witnessing here is a de jure recognition of Naser

18 Oric's command. No matter how much the Defence might say, raising your

19 hand, just being voted in a small house in Bajramovici, having a couple

20 local groups around you, there are so many other independent players,.

21 Well, from Sarajevo's point of view, on the 27th of June, 1992, Naser Oric

22 is the commander of the Srebrenica municipality TO, to be carried out

23 immediately. He's a superior, de jure, de facto, recognised.

24 Your Honour, I would now ask that we go to P33.

25 If possible, on the first page -- I'm sorry, it's actually the

Page 16146

1 second page, if Your Honours could just direct your attention, in

2 particular, to the first paragraph. We have a date of August 8th, 1992,

3 and this is a decree, an order, on assignment, and it's pursuant to

4 Article 18, at the proposal of the Minister of Defence of the Republic of

5 Bosnia-Herzegovina. It's confidential.

6 JUDGE AGIUS: Yes, one moment. Okay.

7 MS. SELLERS: Okay.

8 JUDGE AGIUS: Go ahead.

9 MS. SELLERS: It's the Presidency, the Presidency of the Republic

10 of Bosnia-Herzegovina that hereby adopts this, order of assignment.

11 Now, Your Honours, if you go through this document, P33, you don't

12 see the name Naser Oric until you get to page number 5. There is other

13 business to take care of before arriving at the name of Naser Oric, and

14 what is that business? The establishment, appointments of commanders.

15 Zenica, the Vitez municipality, Doboj.

16 When we get to page 5 and we see Naser Oric, it should strike you,

17 it should strike you, that unlike the other municipalities, there is only

18 one name, only one person, who is being named to the position of the

19 municipal Staff Commander. Unlike in the other municipalities where you

20 at times have one, two, three, four, five, the recognition is that Naser

21 Oric, to the establishment position as municipal Staff Commander, another

22 de jure recognition of his superior position as commander.

23 Your Honour, who signs this? It comes from the Presidency, signed

24 by the president. So is Naser Oric a commander or superior? Prosecution

25 has proved that beyond a reasonable doubt. Is Naser Oric acting as a

Page 16147

1 commander, reporting to authorities, partaking in military battles?

2 Certainly, Your Honour.

3 Your Honour, Naser Oric later on, in the beginning of November,

4 agrees with his further appointment as commander of the subregion. Now,

5 the Defence has admitted to this fact. This is not a contested fact. In

6 the Prosecution submission of the 65 ter pre-trial brief the Defence

7 agreed, yes, there was appointment of Naser Oric as commander in November

8 1992. The issue might be how well did the subregion function; but the

9 issue is not whether he was a superior, at whatever level the subregion

10 was functioning. And the Defence, in agreeing to this fact, certainly,

11 along with Your Honours and the Prosecution, recognise that Naser Oric

12 didn't then shift from being the commander of the Srebrenica armed forces.

13 That position wasn't given to anyone else. He remained commander of the

14 Srebrenica armed forces, commander of the subregion. He is acquiring more

15 and more superior authority.

16 Your Honour, the fact that the Defence admitted to Naser Oric's

17 position might lead one to think that it was very logical, it's not

18 contested. One has to see that commanders were named to further command.

19 Naser Oric was a commander who had loyalty, respect, control. He was

20 successful in battle. The Srebrenica armed forces was gaining territory,

21 not losing territory. Srebrenica was becoming a magnet, a centre. The

22 military centre of the Srebrenica enclave. And so yes, he would be named

23 the commander of the subregion, very logical. He had enough power that

24 some of the men who surrounded him could assume political positions in the

25 subregion. Now I'm not entering into the functioning of the subregion,

Page 16148

1 I'm entering into the existence of Naser Oric's superior authority within

2 that entity.

3 As a superior, Naser Oric, in particular, with some

4 internationals, is known as the commander. With others, he chooses not to

5 be known, he chooses not to be present, chooses to have others go before

6 him. And it's a choice. If you remember the film that you've seen

7 concerning the delivery of food in November 1992, Naser Oric is present.

8 He's present along with the War Presidency, with other members of the

9 political elite in Srebrenica, but he's present. If you remember, when

10 the different members from CanBat came, some of the witnesses really

11 hadn't met Naser Oric, imagined that their superiors might have been

12 dealing with him. Lieutenant-Colonel Rex Dudley appeared to be slightly

13 frustrated that he was unable to meet Naser Oric. Ambassador Arria

14 apparently never met Naser Oric. The commander chose not to present

15 himself. He was there. He could have made himself available at times.

16 Obviously Lieutenant-Colonel Rex Dudley requested Sead, on three or four

17 occasions, could we please -- could I please meet him? So he had to make

18 his evaluation in the absence of Naser Oric. Was Naser Oric too busy?

19 Yes, he was at the front lines, doing what? Leading, commanding forces,

20 organising. Or he was at the staff headquarters, or in Potocari. No

21 matter where he was physically, he was not out of his position as a

22 commander. Well, how do we know that? Because at times he did choose to

23 meet the internationals who came during that time period. And if one

24 would remember the testimony of Mr. Tucker.

25 Your Honour, I'm at page 5802 of the transcript. This is the

Page 16149

1 examination of Pyers Tucker.

2 The question is: So President Izetbegovic made it clear that the

3 details of getting into Srebrenica enclave was something that they could

4 facilitate?

5 Tucker responds, correct.

6 Question: So you go and speak to them and they tell you that they

7 will notify their forces? Do they mention any names?

8 The answer is: They mentioned Colonel Oric who was their

9 commander, military commander in the pocket.

10 Did they mention colonel or -- well, what did Colonel Oric --

11 I'm now at page 5826 of the transcript.

12 Question to Mr. Tucker again: What did Colonel Oric, sorry let me

13 withdraw that question, did he introduce himself, Colonel Oric?

14 Mr. Tucker says: I cannot recall.

15 Question: Did he say who he was?

16 Tucker says: Yes, he did.

17 Question: What did he say he was?

18 Answer: He said he was a commander of the Bosniak forces in

19 eastern Bosnia-Herzegovina.

20 Your Honours, now I'm at the transcript at page 5832. We are

21 still with the examination of Colonel Tucker.

22 Question: What was your impression of Colonel Oric when you first

23 met him? Can you comment on his bearing, his demeanour, his look, his

24 age?

25 The answer: He was young. He was very intense. He looked very

Page 16150

1 professional. He spoke clearly. He spoke in a measured manner. He was

2 not emotional or histrionic. He gave every impression of being a

3 professional soldier in a very difficult situation. He was in strong

4 command of his men.

5 I'm now on page 5833 of the transcript.

6 Question: Did you -- of the men accompanying Colonel Oric, did

7 any of them introduce themselves to you?

8 Answer: No. None of them introduced themselves. It was very

9 clear from their behaviour and body language and the way they talked

10 amongst themselves that they were subordinates and that Colonel Oric was

11 the man in charge.

12 Your Honour, Colonel Oric, Commander Oric, Naser Oric, was the man

13 in charge in March and April in Srebrenica 1993. How do we know that he

14 was in charge? Well, first of all, it's right before he receives further

15 promotions, once the Srebrenica armed forces are demilitarised

16 and become the 8th Operational Group. We know from that from his own

17 history in the military documents he signs. But we know that he is a

18 commander in charge in another means also.

19 I would like to show the Trial Chamber a very brief film taken at

20 this time period, in March, when United Nations is dealing with Naser Oric

21 as a commander.

22 Your Honour, this is P427.2.

23 [Videotape played]

24 JUDGE AGIUS: One moment. I can't read that. Is it 47 or 17?

25 47. So the video starts at 47 minutes, 0.54.9 or 3 seconds -- 9, 9.

Page 16151

1 [Videotape played]

2 JUDGE AGIUS: So the video stopped at 51 minutes, 19.8 seconds.

3 MS. SELLERS: Your Honour, I would ask that we just go back to the

4 beginning of that video for a very quick moment, please.

5 JUDGE AGIUS: Can we do that? Yes.

6 [Videotape played]

7 MS. SELLERS: Your Honour, you will notice that the Prosecution

8 has shown several videos of Naser Oric throughout the course of this

9 trial. We do not intend to replay each one, but if Your Honour remembers

10 the majority of those videos show Naser Oric, irrespective of the time

11 period, particularly between May 1992 until March 1993, dressed in uniform

12 and armed.

13 In this particular video, Naser Oric might be in Srebrenica, might

14 not be in Srebrenica. The Defence did try to make an issue of that.

15 Naser Oric is a commander who is mobile. He can get around. At this

16 point in time, he's a commander of the subregion. In this video he talks

17 about areas not just in Srebrenica.

18 He's met the internationals at a crucial moment. He meets with

19 Morillon. Morillon was power. Morillon is someone he wants to deal with.

20 As a matter of fact, he can stop the movement of Morillon. With all due

21 respect, Lieutenant-Colonel Rex Dudley did not have the stature of

22 Mr. Morillon, and it's possible that Naser Oric chose not to meet with him

23 or with other members of CanBat, the Canadian forces, because he chose to

24 meet with their superiors. That does not diminish the superior position

25 that Naser Oric had throughout 1992 and certainly into March 11th, 1993.

Page 16152

1 Not everyone, not everyone, appeared to be convinced that Naser

2 Oric was a commander, was a leader. We do have certain persons claiming

3 that he's otherwise. The Defence has presented witnesses who appear to be

4 of an opposite opinion of Mr. Oric himself. If the Trial Chamber

5 remembers, questions were asked of Sidik Ademovic. He claims that Naser

6 Oric had a group of 15 to 20 men. That's on the transcript, page 13148.

7 Sidik Ademovic said: "I state with great degree of certainty that

8 he could not have been a commander and he was not a commander over the

9 whole territory of the Srebrenica region. He could have been a commander

10 of the Potocari group, however."

11 That's at the transcript 10830.

12 Sidik Ademovic also states: "He could not have been a commander

13 and he was not a commander of all the units or all the groups as you say

14 in Srebrenica municipality." 10830.

15 Your Honour, in the most generous fashion, I would say

16 Mr. Ademovic is mistaken, is uninformed, does not know that Sarajevo has

17 conferred the de jure commandship of Naser Oric over the entire

18 municipality.

19 Judge Eser might remember his encounter, discussion with Sead

20 Bekric. Judge Eser asked: "Can I conclude from our answer that Naser

21 Oric was at least a leader of a group fighting against certain Serbian

22 people?"

23 The answer was: "Whether he was a commander at Potocari, whether

24 he was an average man, as everybody else, I have no clue, I can't testify

25 to that."

Page 16153












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13 English transcripts.













Page 16154

1 Yes, there is a possibility that some of the witnesses just didn't

2 know who Naser Oric was. The Prosecution finds that highly incredulous,

3 finds that to be misleading. But if that possibility exists.

4 Judge Eser then went on to ask him: "Well, if he was a normal

5 fighter as anybody else was, why was it so important, for instance, for

6 Hazim to be confused with him, that people be impressed if they say, I'm

7 Naser Oric? I mean, if he was only a normal soldier, what is impressive

8 of that, when you have thousands of people of this sort."

9 And then Sead Bekric answered: "Well, Your Honour, Hazim imitated

10 Naser Oric but there was many other men who imitated other leaders and

11 other men who were admired. To me and to other people that I know, Naser

12 is admired as much as any other, any other leaders in Srebrenica who

13 were -- who stood up to Serbian aggression. So it's not specially Naser

14 Oric. There was many people like Naser Oric. There was many people who

15 like Zulfo Tursunovic as much as Naser Oric. There were people who

16 admired Hakija Meholjic more than they admired Naser Oric. So it's not

17 like just Naser Oric."

18 Now that might be true. That might be slightly evasive. The

19 point is, I think that he knew full and well that Naser Oric was the

20 commander.

21 JUDGE AGIUS: Yes. Ms. Sellers, transcript reference, please?

22 MS. SELLERS: Yes, I'm sorry, transcript reference is 9615

23 until 16.

24 JUDGE AGIUS: Thank you.

25 MS. SELLERS: Your Honour, a question was also posed to Ejub

Page 16155

1 Dedic.

2 Question: So is it your testimony no military activities by the

3 Muslim forces and Naser Oric was commander on paper only?

4 Answer: Yes.

5 Transcript 12332.

6 Mr. Djilovic, one of our last witnesses to testify, was asked

7 certain questions concerning Naser Oric. And now I'm at 15363 in the

8 transcript. She had answered: "As far as I know, Naser Oric was never a

9 commander of the TO, especially not in 1992. I know that he was always at

10 the front line. Whenever he came to the War Presidency municipal

11 building, he was wearing boots and very soon he would be out again. And

12 as for the Territorial Defence, I don't believe it could have existed.

13 Especially not in 1992. But this could also be true for 1993, in view of

14 the general situation in Srebrenica. There were great numbers of

15 refugees, people were confused."

16 Question: "Okay. So he would at least have been among the

17 leaders in Srebrenica, that's your testimony? Right, Ms. Djilovic or not?

18 Just say yes or no, fine.

19 Answer: "No. He was not among the leaders. One of the leaders

20 at the time.

21 Either Ms. Djilovic who sits next to the door of the president of

22 the War Presidency is completely uninformed, misinformed, or less than

23 truthful.

24 The Prosecution's evidence shows beyond a reasonable doubt that

25 Naser Oric was a superior. And, Your Honours, we will discuss after the

Page 16156

1 break some of his subordinates, the manner in which he commanded, and

2 later the effective control that he had over those subordinates.

3 Thank you.

4 JUDGE AGIUS: I thank you so much, Ms. Sellers. We'll have a

5 break. Do you prefer 25 minute or 30 minutes, considering that you have

6 been speaking for an hour and a half already.

7 MS. SELLERS: Your Honour, could we ask for 30 minutes, please?

8 JUDGE AGIUS: With pleasure. We will have a 30-minute break

9 starting from now.

10 --- Recess taken at 10.59 a.m.

11 --- On resuming at 11.33 a.m.

12 JUDGE AGIUS: Yes, Ms. Sellers.

13 MS. SELLERS: Thank you, Your Honours.

14 Your Honour, at this Tribunal, Article 7(3) let's us know that it

15 doesn't suffice just to be a superior. If you're a superior and you have

16 no subordinates, this Tribunal's jurisdiction has Article 7(1), under

17 which your liability can be established. Under Article 7(3) the question

18 is whether you have subordinates, the effective control you have over your

19 subordinates, so that if they commit crimes, or if they are about to

20 commit crimes, and that you knew or should have known, and only when you

21 failed to prevent or after the commission of crimes you failed to punish,

22 the liability can attach.

23 Now, it's true that Naser Oric is being held for both 7(3)

24 and 7(1) responsibility. The 7(3) responsibility incurs for the attacks

25 that occurred, Rakovici, Jezestica and the crimes that occurred in the

Page 16157

1 prison. This 7(1) liability is alleged when he is present at the attacks.

2 Right now I'm going to direct your attention to subordinates, a

3 crucial condition for 7(3) liability. And although the discussion of

4 subordinates in particular goes toward having sustained the element that

5 the Prosecution was required to prove, I'd like Your Honours to look at it

6 a bit broader, that Naser Oric had subordinates that he was able to

7 influence and effectively control.

8 Now, many of the documents of the Prosecution has submitted before

9 Your Honours shows lists of subordinates, everything from the Stari Grad

10 unit, the Osmace unit, the Potocari unit. There we see hundreds of

11 persons who the Prosecution alleges and has proven were subordinates to

12 Naser Oric. Why? Because they came under the Territorial Defence. They

13 came and were subsumed and subordinated to him under the Srebrenica armed

14 forces. When Naser Oric's command staff becomes part of the larger ABiH

15 army, he doesn't lose his subordinates. They now fall into the hierarchy,

16 the military chain of command, of the ABiH. Enver Hogic is certain about

17 this. There are no loose subordinates running around if they are under

18 the control or under the authority of a commander of the ABiH, and Naser

19 Oric was such a commander as of August.

20 But I would like to draw your attention to a small subsection of

21 the subordinates, and I have called them, not for lack of better name but

22 for the reason in the manner in which they seem to be portrayed here, as

23 the wild bunch, and those are the local commanders that were so

24 independent, so unable to be controlled, that witness after witness was

25 asked, could they take orders? Do they act on their own? Could Naser

Page 16158

1 Oric conceivably be superior?

2 Who am I speaking about? I'm speaking about Akif Ustic, Zulfo

3 Tursunovic, Ahmo Tihic, Ejub Golic, Mirzet Halilovic and Kemo from Pale,

4 Kemo Mehmedovic.

5 My comments will be brief because I'm sure Your Honours will

6 remember the numerous witnesses who came to attest to their independence.

7 The Prosecution sets forth the following proposition that the

8 evidence has proved. Yes, they all had strong personalities. These were

9 men who had a sense of independence. It's for that reason that they

10 became local commanders, that they were considered local commanders.

11 Nevertheless, each one of these fiercely independent personalities

12 subordinated themselves to whom? To Naser Oric. Some were more willing

13 than others. Some were rather reticent but they did it.

14 Zulfo Tursunovic, ever since the Bajramovici meeting, subordinated

15 himself to Naser Oric. As a matter of fact, it was Zulfo who then spoke

16 to Hakija Meholjic who was not at the meeting and convinced him, Come on,

17 Hakija, join us, Oric is the commander, Akif Ustic is going to be his

18 deputy, come on, be a part of us. They probably thought that there would

19 be some of their command that they would have to relegate to Naser Oric

20 and a bit of their independence, and you felt that natural tension between

21 them. But they subordinated themselves, not only to Naser Oric but to

22 Akif Ustic, Naser Oric's deputy.

23 Ahmo Tihic, one of the early members of the Srebrenica Territorial

24 Defence Staff subordinates himself.

25 (redacted)

Page 16159

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 [Private session]

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 [Open session]

19 MS. SELLERS: The situation of Ejub Golic is different.

20 JUDGE AGIUS: Wait, because we haven't gone back to open session.

21 Please let's go back to open session. Okay. We are in open

22 session.

23 MS. SELLERS: The situation of Ejub Golic and the men from Glogova

24 is different. They were not at the Bajramovici meeting, but they soon

25 joined Naser Oric as subordinates. Why? Because the organising force of

Page 16160

1 Naser Oric and his subordinates was among their highest hopes on how to

2 recapture Glogova, and that was a good bet. Being in Cizmici, having

3 contact, going to Jezestica, eventually the priority came to take Glogova

4 back.

5 Now, much has been made about, did Naser Oric appoint Ejub Golic a

6 commander? No, couldn't have been. Well, both could happen. They are

7 not incompatible. He was a de facto commander, in quotes, elected by his

8 men. His men might not have countenanced any other local commander. That

9 doesn't mean that Naser Oric as an ABiH commander couldn't send out an

10 order and make that a de jure position.

11 Now, Your Honours, I think that you must have the impression that

12 there was very little paper in Srebrenica. There might have been less

13 paper but there wasn't a complete dearth of paper. But it didn't mean

14 that an order was replicated 50 times, passed to each soldier. Oral

15 conveyance, oral communication, of orders or decisions occurred much more

16 frequently and could be considered just as valid. The Prosecution

17 maintains that Ejub Golic subordinated himself to Naser Oric and became

18 the de jure commander over the Glogova unit, and he had been that de

19 facto.

20 Now, the subordination of these very independent men led to

21 insubordination at times. Army forces expect perfect subordination and

22 are ready for insubordination, and that's what discipline is about. If it

23 didn't occur, there wouldn't be instances of disciplining insubordination

24 in rules and regulations in armies throughout the world. In particular,

25 in Srebrenica, there might not have been the complete absence of

Page 16161

1 insubordination, even among the local leaders, but that did not mean that

2 they were not subordinated to Naser Oric.

3 Akif Ustic is killed in October. There is testimonies that say,

4 Why did he go off? Why did he do this independent act that led to the

5 death not only of Akif Ustic but some of his men? That insubordination

6 was not praised, it was lamented, that insubordination was viewed as

7 something that could be life threatening and dangerous. It was not

8 heralded.

9 When Naser Oric decided to exercise control, he exercised control

10 over these men also. Hakija Meholjic testified of being surrounded the

11 hotel Domavija was surrounded by Naser Oric's men, armed. They later on

12 resolved their differences.

13 Ejub Golic was eventually arrested. This was way after

14 demilitarisation. Naser Oric assisted in letting him be free because he

15 needed him as a fighter.

16 Your Honour, there was a relationship between very strong-willed

17 local commanders, who could, who could, demand the subordination of their

18 men when they went into battle. Did people shift in between units

19 sometimes? Yes. Did an order have to come out about that? Yes. But

20 Naser Oric tactically used a very good tool. The vice-presidents were

21 people everyone admired and would follow into battle. Naser dealt with

22 the vice-presidents. The best way to subordinate the troops was to give

23 them a leader that they admired, the in between.

24 Now these men who were too independent, too wild, what did they

25 do? They showed up to meetings, they took their men to the attacks. When

Page 16162

1 they decided not to go into an attack, such as Hakija did at times, they

2 would give men. Their men would be subordinated to the commander at the

3 attack. Subordinated to Naser Oric. Hakija Meholjic is quoted in our

4 brief. I believe it's on page 2.000 -- sorry, 6853 in March. Naser Oric

5 subordinates him and then subordinates other local commanders under him to

6 hold the front line.

7 These strong characters helped keep the Srebrenica army cohesive.

8 And that's why we have the folklorism, Ah, Hakija's men, Akif's men. That

9 assisted, that didn't destroy the command and control. But my primary

10 purpose is so that you understand that these men were subordinates, chose

11 to be subordinates, did not take their men and go off. Their men became

12 part of the Srebrenica armed forces. And that's because Naser Oric, as a

13 commander, had strength, was able to attract them, was able to maintain

14 them. When questions arose, and you see it in P8 4, Naser wanted to

15 resign, No, no, no, Naser, you're my commander, you will always be my

16 commander. But what they wanted Naser to do a bit more was choose to use

17 his effective control. Coup d'etats against Naser Oric, he speaks about

18 them. In all, the very independent man kept the independent men

19 subordinate to him.

20 I would now like to turn to Mirzet Halilovic as a subordinate of

21 Naser Oric. Another independent man, can't control him. It's amazing the

22 uncontrollables that flocked to Naser Oric. Mirzet Halilovic, he and

23 Naser obviously were good acquaintances before. I don't know if they were

24 karate buddies, but they were good enough acquaintances that Naser brings

25 back from Belgrade a uniform for Mirzet Halilovic before the war starts.

Page 16163

1 Now, Mirzet Halilovic is named a commander of the military

2 police. And let there be no doubt, this occurred before the setting up of

3 the Srebrenica War Presidency. We see the document on June 15th, and then

4 later on the decision is recounted in other documents dating from the

5 beginning of July.

6 Mirzet Halilovic was part, not of the 15 or 20 lads from Potocari

7 but probably the dozens and dozens of lads, fighters, soldiers, Potocari,

8 Budak, Pale, that come under the Potocari TO. And Naser Oric states in

9 his suspect interview that Mirzet was beginning to be a bit of a problem

10 because they had people coming in from Glogova. They had other refugees

11 coming in, joining these Territorial Defences, and Mirzet wasn't

12 necessarily acting in a correct military manner.

13 In the suspect interview, P329, Naser Oric says: "Once I was

14 called by the War Presidency that there was chaos broken out in the town

15 and that the main problem in the town was the military police, that they

16 didn't do anything, and that what which they are supposed to do and they

17 are doing some dishonourable things, among others, that Mirzet Halilovic

18 had begun to act like his own commander, that he wasn't obeying any orders

19 either from Ramiz or from Hamed Salihovic, simply that he was behaving

20 like a sheriff, just on his own, and there was suspicion."

21 He goes on to talk about suspicion that the prisoner who had died

22 had not simply died, that he had on one evening, he had been in a drunken

23 state, he got drunk, and that he had gone into the prison cell and beaten

24 this prisoner, and after this, he had had, and after beating, he had

25 succumbed to his injuries.

Page 16164

1 Your Honour, I bring this up not to discuss the prison scenario.

2 I bring this up to the very important phrase that Naser Oric says that he

3 wasn't obeying any orders either from Ramiz or from Hamed Salihovic.

4 Those are men who are on the armed forces staff.

5 JUDGE AGIUS: Yes, can you be specific, Ms. Sellers, as to the

6 reference part of -- from 329?

7 MS. SELLERS: Yes, Your Honour. On my Word transcript, 3 page 2.

8 I will have to get you the transcript reference.

9 JUDGE AGIUS: That's what we need. If not for us, at least for

10 the Defence.

11 MS. SELLERS: Yes. Your Honour, so within that phrase, within

12 that group of sentences, Ramiz Becirovic and Hamed Salihovic are members

13 of the armed forces staff, direct subordinates of Naser Oric and Mirzet

14 Halilovic. They can issue orders to him, and now the complaint is that

15 he's not obeying orders. And the War Presidency is conveying this

16 information to Naser Oric. Just as the War Presidency conveyed

17 information in August when they were discussing Mirzet Halilovic and how

18 he was acting in the town of Potocari.

19 Now, it's very crucial that we understand that according to the

20 Defence theory Mirzet Halilovic is subordinated to the War Presidency. Do

21 we ever see a witness that says: Hajrudin Avdic has issued various orders

22 Mirzet Halilovic in August? Ms. Djilovic certainly didn't type any up.

23 There is an order from the War Presidency within what we refer to as the

24 military police log, P458 or P561, but what's astounding is the dearth of

25 orders, communication between the War Presidency and Mirzet Halilovic.

Page 16165

1 And when he is finally placed under Mr. Bogilovic, it is Mirzet Halilovic

2 the person and not the military police staff. If there is some confusion

3 that it's a military police staff, that confusion is rectified in that

4 interfollowing period between October 15 and November 22nd. The military

5 police belonged to the military. But Mirzet Halilovic is one of the wild

6 bunch. But Naser Oric had chosen him to be the chief of military police,

7 knowing that he had problems in Pale.

8 Naser Oric is not afraid nor too challenged to be around very

9 independent military men. It's part of how the structure is constructed.

10 The frustration belongs to his subordinates who are on the armed forces

11 staff. Their frustration at the local commanders and with Naser Oric

12 comes up, led almost to resignations. That the commanders aren't using

13 their effective command, not that they are aren't commanders and not that

14 the commanders aren't subordinate to Naser Oric. The OS staff doesn't

15 deal with any of these commanders individually as supreme leaders. For

16 good reason. They are not.

17 Your Honour, on several occasions, the question has been raised:

18 Who was the military police subordinate to? There is one person who knows

19 better than the others, and that's Mr. Bogilovic. Even Hakija Meholjic,

20 by the time he takes over the police during demilitarisation, is talking

21 about the civilian police, because he becomes head of a demilitarised

22 police, saying that there were no files, there was nothing. The military

23 police had files. You have those files before you. The military police

24 had persons stationed in units. You have some of those documents before

25 you.

Page 16166












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 16167

1 Judge Agius asked Mr. Bogilovic: "Who did you say that you found

2 out in November that was subordinated to the army and not the presidency?"

3 And Mr. Bogilovic answered: "The police staff. It was

4 subordinated."

5 Judge Agius then says: "The civilian police or the military

6 police?"

7 The answer is: "The military police. The civilian police

8 remained under the War Presidency or, rather, the president personally

9 throughout."

10 Then I ask: "Could the military police then make the decision,

11 make decisions independent of any civilian authorities, to your

12 knowledge?" I'm directing my question to Mr. Bogilovic.

13 And he says: "The military police could make some decisions but

14 only within the framework of their military authority."

15 I'm at transcript 63 -- 6332 to 6333.

16 Your Honour, even if we go to the other scenario, and let's just

17 say, for argument's sake, that the military police served both functions,

18 the Srebrenica armed forces and the War Presidency, maybe there were

19 sometimes when they were mixed, we know that when Atif Krdzic is appointed

20 that that mixture is over. We know that if the mixture occurred, it

21 occurred after October 14th when the crimes in the first period of

22 detention, September to October, are basically over and before the crimes

23 in the second detention centre began.

24 We also know that even if they are mixed, that does not preclude

25 that Mirzet Halilovic remained subordinated to Naser Oric and that he has

Page 16168

1 responsibilities to prevent, to punish, to exercise effective control.

2 The Prosecution's position is that the military police was under Naser

3 Oric, he appointed the commander, he chose at times not to utilise

4 effective control, and that the relationship of the military police to the

5 War Presidency might be one of information sharing because it was another

6 police force in the town that had to interact at times with the civilian

7 police force. Because Becir Bogilovic, who becomes head of security for a

8 second, would you take that trouble-maker away? Becir didn't order any of

9 the other military policemen to do whatsoever in their functions.

10 Is there confusion in P84? Yes, Your Honours, there is. The

11 confusion is resolved quite quickly. Mirzet Halilovic is probably one of

12 the more colourful characters, in one sense, personality-wise, in

13 Srebrenica and the one who commits crimes. He's the one who wears a

14 cowboy hat; remember? He's replaced by Atif Krdzic, a man who was a

15 subordinate prior to being named chief of the military police and who

16 remains a subordinate of Naser Oric's throughout his period as a superior.

17 Your Honour, there was a question of mistranslation that the

18 Defence rose in terms of the interview of Naser Oric, and that was whether

19 the translation was correct about the military police or Hamed Salihovic

20 being charged with interrogations, and I'm talking about transcript

21 page 14664. The Prosecution's position is that even if that translation

22 is corrected according to what the Defence says, that just means that the

23 military police and Naser Oric are under the same military command. That

24 does not change subordination.

25 Your Honours, in terms of Kemo from Pale, Kemo Mehmedovic is sent

Page 16169

1 by Nedeljko Radic, and Kemo Mehmedovic, as his correct name, we have fully

2 briefed why we believe that he is a subordinate of Naser Oric, a

3 subordinate because he comes from the Territorial Defence of Potocari

4 under Pale, under Budak, and also because he becomes a member of the

5 Specialised Intervention Platoon in November/December. Kemo is probably

6 someone who has a violent nature. People always comment about how he and

7 his brother were extremely dangerous, violent men, nationalists, before

8 the war. The evidence shows that during the war, he kept to character.

9 This was well known. Kemo from Pale, is, was, at that time period, a

10 subordinate of Naser Oric, another one of the wild men.

11 Your Honours, I would briefly like to address you later on about

12 effective control over the men. This segment just concentrated on the

13 identification of those subordinates. But prior to leaving this section

14 and turning it over to co-counsel, Gramsci di Fazio, I want to return back

15 to coordination. Coordination now as a part of command under

16 Article 7(3).

17 Your Honour, do we have to check and see if the alarm is

18 meaningful to us?

19 JUDGE AGIUS: No, no. I can assure you that this is the Monday,

20 noon alarm in the area.

21 MS. SELLERS: Fine.

22 JUDGE AGIUS: Unless I am informed otherwise but --

23 MS. SELLERS: Okay. Your Honours, as now I have stated several

24 times, Naser Oric was a commander, and one of the tools he use was

25 coordination, and coordination was a normal -- as a matter of fact, a

Page 16170

1 recognised doctrine in order to execute military operations. And the

2 Prosecution's position is that command necessitates coordination. From

3 the moment you have more than one unit, I think I would go as far as to

4 say from the moment you have more than one subordinate, you might be doing

5 coordination on some level. Coordination does not denigrate, doesn't

6 diminish, and it certainly is not a substitute for command.

7 I would propose to Your Honours to look at P84.1 as a book that in

8 many ways deals with coordination. Coordinating not only the different

9 units, in terms of tasks for ambushes, to reconnoitre, to be present at

10 this attack, coordination for who will be going to Tuzla. Coordinations

11 for which kitchens get food and which percentage.

12 Your Honour, coordination is part of command, as used in the

13 Srebrenica armed forces.

14 Now, to the extent that Naser Oric had independent-minded local

15 commanders, coordination became the most effective tool. Better to say

16 let's coordinate, let's see if we can work out a way where we can all do

17 this together. That goes down much better with independent-minded people,

18 particularly those who are armed. It was an effective exercise of

19 control. It didn't make the superior-subordinate relationship or a

20 hierarchy vanish. It probably aided in the building of loyalty among the

21 units and for Naser Oric.

22 Now, the Defence might prefer that the Trial Chamber misread or

23 misinterpret indications of command and coordination. Since I've already

24 discussed coordination in the sense of overall control, when one is

25 looking for the definition of international armed conflict, I trust that

Page 16171

1 Your Honours understand that that's inapplicable in this situation.

2 Coordination for command as discussed under 7(3) by the Defence is also

3 inappropriate and inapplicable to our jurisprudence.

4 The Defence brings up the case of Celebici where the commander

5 Delalic was found to be a coordinator and therefore not in a position of

6 command. A very cursory reading of Celebici on that point confirms that

7 Delalic was, if I might so phrase, nothing but a coordinator. He wasn't

8 in the army. He wasn't in a position of military command. He was

9 coordinating between the army and civilian authorities. So while it is

10 true that in this instance coordination did not equal command, those facts

11 are not relevant to our facts, are not analogous to our facts. Naser Oric

12 was a military commander who used coordination among his military

13 subordinates. Did he coordinate with the War Presidency? He probably did

14 that also. There is probably always a political, military discussion that

15 had to go on in Srebrenica. That also didn't diminish his command.

16 The Defence also cites Halilovic, and that's when Halilovic was a

17 coordinator as chief of the inspection team. Factually inapplicable to

18 our situation. Both cases differ.

19 Your Honour, what is more important is looking at the JNA

20 manuals. They promote the doctrine of coordination within command, and

21 the JNA manuals are a military guide that all of Naser Oric's local

22 commanders had some fleeting, fleeting acquaintance with. Will I say they

23 were professional soldiers? No. I will say that they did their military

24 service that year in the JNA. Were they ever coordinated among other

25 subordinates that year? I would say the chances are 99 per cent, yes.

Page 16172

1 Those who had not completed their military service, very few, were reserve

2 police officers. They probably coordinated among their ranks also, yet

3 stayed in a line of subordination to their superiors.

4 Your Honour, in terms of coordination, actually removing command

5 from Naser Oric, the opposite is true. It built command. It made him a

6 more effective commander. It was in line with what any TO force would

7 know, having come from the former Yugoslavia. If I just might read one

8 part of the former JNA manual on regulations of coordination it states,

9 and I'm reading from the General Staff of the armed forces of the SFRY,

10 corps of group forces, Rule 1990. We've cited that in our brief, where it

11 says: "The commander of the corps bears the responsibility for the

12 accomplishment of a mission. He takes decisions, gives assignments to his

13 subordinates, organises coordination and cooperation and controls the

14 implementation of decisions."

15 That's on paragraph 65.

16 Another quote says that the activities of all participants in the

17 execution of a combat assignment are harmonised through concerted action,

18 coordination and cooperation; thus providing for planned execution of set

19 tasks.

20 That's P84, Your Honour. That's what we have. Coordinated

21 actions under command.

22 At this time period, I would like to turn over our closing

23 argument to my colleague, Gramsci di Fazio. Prior to doing that, I would

24 like to remind the Trial Chamber that while we have tried to avoid a

25 repetition of every fact, we've tried to enlighten what we believe are the

Page 16173

1 important points, we are still available if you have any questions for us

2 on this.

3 Thank you.

4 JUDGE AGIUS: I thank you so much, Ms. Sellers.

5 Mr. Di Fazio?

6 MR. DI FAZIO: Thank you, Your Honours. Could I just get the

7 lectern, please.

8 JUDGE AGIUS: There will be a break at 1.00.

9 MR. DI FAZIO: Thank you, Your Honours. Your Honours, just on the

10 question of the remainder of the day, I've had a chance to speak to my

11 colleagues, I will go with this topic, I expect, for the remainder of

12 today. If I luckily should finish prior to today's session, my colleagues

13 and I are all agreed that we could stop there and finish tomorrow. We are

14 comfortable that we will be able to do that. That's how I see today

15 panning out.

16 JUDGE AGIUS: And if I may suggest something, but I will not try

17 to involve the Trial Chamber in it unless you decide to take the

18 initiative together and in full collaboration with the Defence, the next

19 break, as I said, will be at 1.00. I would take it that that would be a

20 30-minute break, which basically means that we would then reconvene at

21 half past 1.00 only to finish at quarter to 2.00.

22 Now, we lost half an hour this morning. If you can, in the

23 meantime, someone will try to organise this, obtain the agreement of

24 interpreters, technicians and all the rest of the staff, instead of having

25 a break at 1.00, which would be a 30-minute break, we'll have a break

Page 16174

1 earlier, which will be a shorter one, say, 20 minutes, but that again, I

2 mean everyone must agree to that. If there is just one person who doesn't

3 agree, then we will revert to -- and then we'll finish at quarter to 2.00

4 just the same but we would have recovered at least 15 minutes from the 30

5 minutes. We will still finish at quarter to 2.00, yes.

6 MR. DI FAZIO: Oh, yes, I understand that.

7 JUDGE AGIUS: Others need the courtroom. But perhaps the member

8 of your staff can start coordinating with interpreters, technicians, and

9 Defence, and if there is agreement, please let me know, and then I'll tell

10 you when we will be stopping for a shorter break. Thank you.

11 MR. DI FAZIO: Thank you, Your Honour. Speaking for myself,

12 it's -- I'm happy with whatever arrangement is agreeable to all.

13 If Your Honours please, the points that my colleague, Ms. Sellers,

14 has made to you this morning concerning the emergence of command in the

15 Srebrenica enclave and the position of Mr. Oric within that command

16 structure finds its best expression in the documentation that's been

17 produced to you in this case. In the Prosecution exhibits, you can trace

18 the emergence of that command structure, and you can see the role that

19 Mr. Oric played in that emerging command structure in 1992 and early 1993.

20 Furthermore, not only can you paint the picture of the emerging

21 command structure and his position with it, but you can actually see from

22 time to time how he exercised his power through that existing command

23 structure, and you can do so through all sorts of documents from the most

24 significant documents in this case, for example, P84, to the most

25 uneventful documents, documents signed by Naser Oric and requiring all

Page 16175

1 sorts of banal day-to-day matters, the transfer of weapons, the transfer

2 of a man, passes and so on and so forth.

3 So the documentation in this case paints a pretty devastating

4 picture for the Defence. It was incumbent on the Defence to try and

5 address that, of course, and they have done so. I want to try to draw

6 your attention to some of the arguments that they have put forward to you

7 to show that they are really without foundation, and that the body of

8 documentary evidence in this case remains as strong as ever and is --

9 remains as unanswered as ever by the Defence.

10 The -- there have been lots of submissions and arguments

11 concerning the documentation on all sorts of topics, but broadly speaking,

12 the Defence seem to have launched two main attacks on the Prosecution

13 documentary evidence in this case. Firstly, is the idea of the absence of

14 a -- evidence of a chain of custody; and secondly, is the allegation that

15 no witnesses have been called to comment on the Prosecution exhibits in

16 this case. They are the two main prongs of their attack. I'm not

17 suggesting for a moment that there are not other arguments and matters

18 that the Defence have put forward, but in a nutshell they are the two

19 strong planks upon which they base their argument. And furthermore, if I

20 can put it this way, there is another, a third subcategory, and that is

21 this: Where there is comment on some of the documents, say the Defence,

22 that comment simply undermines the Prosecution exhibit, and I'll deal with

23 that a little later in submissions concerning how you should approach

24 witness testimony in this case, because it's tied up with that particular

25 topic. So today I really want to speak about two matters: Chain of

Page 16176

1 custody, and the lack or absence of commentary on exhibits.

2 The first observation is this: The Defence have not really

3 spelled out to you precisely how you should deal with documentation where

4 there is no chain of custody evidence. It's not been done either in the

5 Defence reply or in their filing on authenticity. There is certainly a

6 lot of complaint about this topic, but there is no, as far as I can

7 ascertain, no specific conclusion that they invite you to draw, no

8 specific approach that they invite you to adopt. The closest they come,

9 really, is in paragraph 15 in their filing on authenticity, where the

10 Defence says: "There is, in fact, an almost complete lack of a proper

11 chain of custody evidence in this case. This is one of the bases for the

12 Defence's objections to a large number of Prosecution exhibits."

13 Now, we are all clear that there are objections. Of course, there

14 is no doubt about that, and strong objections on the part of the Defence,

15 but it's not clear to the Prosecution if the Defence are saying to you,

16 you the Trial Chamber, you must not or cannot evaluate documentary

17 evidence where there is no chain of custody and also no witnesses

18 commented upon the document, or whether they are saying to you that you

19 can evaluate such evidence but that where a document doesn't have any

20 chain of custody or what they say is a satisfactory chain of custody or no

21 witnesses commented upon it, then you should attach no weight to it. If

22 it's the latter, I suppose the Defence and the Prosecution are slightly

23 closer, but if it's the former the Prosecution submits to you that they

24 are wrong.

25 In fact, I should clarify that the Prosecution submits to you that

Page 16177

1 if they are wrong on both counts, firstly that when they suggest that you

2 cannot -- if they suggest that you cannot evaluate such documentary

3 evidence, and secondly that you should attach no weight at all, if that's

4 the other argument that they adopt.

5 And I say that for two reasons. As a matter of law, the Defence

6 are wrong in submitting to you, if that be it, that you cannot evaluate;

7 and secondly, as a -- when you look at the evidence in the case, and you

8 look at the connection between the documents in this case, they are

9 factually wrong and that there is weight that you can attach to the

10 documents and that you should attach to the documents.

11 If Your Honours please, this institution, and other institutions

12 like it, will almost always have to deal with documentation that has been

13 obtained in ways and manners and by means that are not the norm in

14 domestic jurisdictions. In these sorts of Prosecutions, you don't have

15 teams of forensic photographers descending upon Rakovici to take

16 photographs on the 21st or 27th of June. They don't have police officers

17 who are going along and speaking to witnesses and taking statements from

18 them concerning the documentation that might have been produced on the day

19 before. They don't have police officers who can go along and look at P84

20 and ask the author to come along and comment on the entries that were made

21 at that particular time. Often documents are collected in war zones that

22 simply make it an impossibility for that exercise to ever have been

23 carried out. The -- in this particular case, you can see how perfectly

24 illustrated that point is. The soldiers who went into Srebrenica in 1995

25 and probably collected most of the documents that are the basis of the

Page 16178

1 Prosecution case, were not interested in recording where they found the

2 document, what they were doing at the time they seized the document, the

3 time and day that the document was seized. They weren't interested in

4 seizing the document with a view to later using it in evidence in some

5 proceedings somewhere. The seizures were almost always for all sorts of

6 other purposes, military intelligence, propaganda and so on. So from the

7 time the document comes into the hands of the power that eventually places

8 it into a collection or an archive, all of that's lost automatically, and

9 that feature is going to apply in many cases at similar tribunals and this

10 Tribunal will find itself dealing with.

11 So the reality is, for tribunals such as this, most of the

12 archival and documentary evidence -- sorry, most of the documentary

13 evidence that you have and is produced to you, is going to come from

14 collections or archives, and what preceded -- the events that preceded the

15 document going into that collection or archive or possession of an

16 individual is often, in fact almost always, going to be lost to history.

17 So because of that, the approach that these tribunals must take to

18 documentary evidence is not the same as that which is adopted in domestic

19 jurisdictions. Archival collections and private collections and

20 individuals are often the first point of contact that investigators are

21 going to have with material, and that's going to be years later.

22 So right from the very start, the factual scenarios behind the

23 obtaining of documents are such that there will almost never be a chain of

24 custody for this sort of document. Now, of course, there are many where

25 investigators can get some sort of evidence. I'm not suggesting it's an

Page 16179












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13 English transcripts.













Page 16180

1 impossibility, and I'm not suggesting that these tribunals should not

2 strive to obtain chain of custody evidence or not strive to obtain

3 commentary on documents whenever they can. It's important that that be

4 done. But the problem is that in the case of many classes of documents,

5 it's going to be simply impossible right from the start. And you can see

6 that, as I've said, in this particular case.

7 The investigator Racine Manas testified in this case, as did the

8 Defence witness, Madam Becirevic, I think her name was, and both provided

9 spreadsheets, doing the best that they could, namely to show where a --

10 which archival collection a document emanated from.

11 If Your Honours please, the law, I think, supports the Prosecution

12 on this particular topic. I have given to you a copy of May and Wierda

13 International Criminal Evidence, International and Comparative Criminal

14 Law Series, a segment from that book. I believe that Your Honours have

15 that. The -- I've had photocopied the section that deals with documentary

16 evidence. And, Your Honours, it's, with respect, a very useful short

17 overview of how to approach documentation in these sorts of cases.

18 At 779 the authors say: "Similarly the admissibility of

19 documentary evidence in the modern tribunals is generally governed by the

20 same rules that govern all other types of evidence as set out in

21 Rule 89(C)."

22 THE INTERPRETER: Could you please slow down?

23 MR. DI FAZIO: "That is, evidence of relevance and probative

24 value."

25 That, in the Prosecution's submission, is the real threshold test

Page 16181

1 that you need to adopt for the purposes of admissibility in this

2 particular case.

3 And at 785, Your Honours can see the manner in which the sort of

4 spreadsheet, the sort of documentation, that was offered in this case,

5 both by the Prosecution and by the Defence, has been used in other cases.

6 At 785, dealing with the World War II military trials in --

7 following the Second World War, there was a reference to the international

8 military tribunal, and the allied documentation division, where a famous

9 affidavit, the Kugan affidavit was prepared and used, and this affidavit

10 was entered into evidence at the beginning of the Nuremberg trial. In

11 addition, certificates concerning discovery and location of documents were

12 filed along with documents to provide additional proof of authentication.

13 The same as happened in this case.

14 In that particular case, it would be almost impossible for the

15 prosecutors to have adduced evidence from every person who signed every

16 document that was used, to trace the life of the document as it passed

17 from hand to hand, institution to institution, and eventually into their

18 possession. But they were able to provide some documentation from that

19 point onwards, from when it came into the possession of the prosecutors,

20 and the same has been done here in this particular case.

21 And it is, with respect, the best that can be done in

22 circumstances that trials that you are now dealing with and that

23 institutions often have to deal with can do in all of the circumstances.

24 So that's the issue that I wanted to raise concerning the point at

25 which there is evidence about chain of custody.

Page 16182

1 [Trial Chamber and registrar confer]

2 JUDGE AGIUS: Mr. Di Fazio, I suggest that you stop whenever it's

3 convenient, but round about quarter to 1.00 for 15 or 20 minutes, then we

4 continue, and we finish at quarter to 2.00. And I thank everyone for

5 having cooperated in this and make us recover about 15 minutes. Thank

6 you.

7 MR. DI FAZIO: Thank you, Your Honours. That's helpful to me,

8 thank you.

9 The Defence, in their reply, suggest or seem to suggest that the

10 Prosecution is switching positions, and I'm talking about paragraph 109 of

11 the Defence reply. And they are talking about the evidence of Radojicic,

12 you recall the Serb military man who came here to testify, and seemed to

13 be suggesting that, as I understand what they say, at paragraph -- as I

14 understand what they say at paragraph 109 of their reply, that, well,

15 there was a chain of custody and yet when Radojicic came here it fell flat

16 on its face and they've now switched, the Prosecution has now switched

17 position, failed to establish a chain of custody, now switched position

18 and saying you don't need it. Well, that's not true.

19 When Radojicic came here to testify, if Your Honours please, he

20 was never in a position to give you any information about what happened to

21 the document before it fell into Serb hands. He was never in a position

22 to do that. He couldn't have done that. And so there is in reality no

23 switch on the part of the Prosecution case. Its position has been

24 consistent.

25 The Defence also provided to you, in -- referred you to

Page 16183

1 Exhibit D286. I don't need you to look at it. It's a document from the

2 Drina Corps, and it -- I think written in 1992, and it issues instructions

3 for the proper keeping of archival materials, and I gather that what the

4 Defence was trying to say is, Ah-hah, you see, there were mechanisms set

5 up for a chain of custody, but there has been no evidence about it.

6 The problem is that that doesn't solve the problem. The problem

7 always remains the collection of -- the problem always remains that period

8 of time between the seizure and its final resting place in the archive or

9 the collection or the hands of the private individual who is spoken to you

10 by OTP investigators, and so D286 does not detract at all from the

11 Prosecution's submissions. It only shows to you what should happen after

12 a document has been captured.

13 So they're the submissions that I want to make to you on the issue

14 of chain of custody evidence. The Prosecution is not submitting to you

15 that an absence of a chain of custody is a matter that you should ignore

16 or that you cannot take into account. It is obviously something that you

17 can take into account and should take into account, but that's a matter

18 that goes to the weight of the document. The weight of the document. And

19 if I interpret the Defence submission to be in such circumstances the

20 weight that you give to it is zero, it's nothing, then the Prosecution

21 submits they are wrong. If the submission is that it's very little

22 weight, well, then we are agreed. It's a question of how much weight.

23 Then and we can argue about the facts later that -- obviously the

24 Prosecution is going to submit to you for other reasons I'll develop later

25 that there is much weight that you can attach to them, but in a nutshell,

Page 16184

1 that's the Prosecution approach to this issue of chain of custody

2 evidence.

3 So can I turn now to the absence of commentary by Prosecution

4 witnesses on its documentation.

5 The Defence position here is clear. At paragraph 16 of the

6 Defence filing on authenticity, they say this: "No probative value can

7 attach to a document which has been shown to no witness." So there we

8 are. It's a very clear expression. The Prosecution's submission is that

9 they are clearly wrong on this. And furthermore, the Prosecution observes

10 that there is no authority provided for this proposition put forward by

11 the Defence.

12 The basic starting point that you should adopt -- start from, I'm

13 sorry, is Rule 89(C), which says that a Chamber may admit any relevant

14 evidence which it deems to have probative value. You would not have

15 admitted any documents into evidence unless it had some relevant and

16 probative value. If a document is stripped of any probative value

17 whatsoever because it hasn't been commented upon, you wouldn't have

18 admitted the document into evidence.

19 The Prosecution's submission --

20 JUDGE AGIUS: One moment, because I think we need to clarify this.

21 You know as much as we do, Mr. Di Fazio, that the system that has

22 been applied here since the beginning of this Tribunal, as regards the

23 admission of documents, is the civil law approach, and not the common law

24 approach. You know that in your country and my country and other common

25 law jurisdictions how much this issue is debated at various stages of the

Page 16185

1 trial, and bitter arguments and battles are fought on the admissibility of

2 a document before it is actually admitted into evidence.

3 Here we admit all documents with the caveat that we will decide on

4 their final admissibility, probative value, and so on and so forth at the

5 end of the trial, during the deliberation process.

6 So saying that throughout this trial we admitted a large number,

7 because we are talking indeed of a large number, of documents means that

8 we necessarily decided that they had probative value at that point when

9 they were admitted is not putting it correctly.

10 Short of any challenge there and then as to the probative value of

11 some documents, we did not of course engage ourselves in the exercise of

12 establishing the probative value. That would be done, and it is being

13 done, and we have gone a long way already on that, during the deliberative

14 process. We have done that in regard to two documents at least, P65

15 and P68, and given strict instructions that they were not to be made use

16 of unless further evidence is forthcoming from your side, which would make

17 us revise what we decided as regards their probative value in relation to

18 authenticity. That was never done, but still, P68 is referred to at least

19 on two occasions in your final brief, which shouldn't have been done.

20 But I want to make this clear. The fact that 600 - and I don't

21 know how many others - documents tendered by the Prosecution have been

22 admitted on -- with the caveat that I mentioned, does not mean that we

23 have already at any time established to grant those documents or those

24 exhibits a probative value. We were not asked to exclude any one in

25 particular with -- except for 65 and 68, and a few others where we

Page 16186

1 reserved our position. Ergo the bottom line would be that they are still

2 there. Probative value and reliability and all the rest will be decided

3 in the light of the totality of the evidence. And not just necessarily

4 and only and exclusively on the face of the document itself. So that's

5 the position. I hope I've made it clear.

6 MR. DI FAZIO: Yes.

7 JUDGE AGIUS: Both for you and for the Defence.

8 Yes, sorry for interrupting you.

9 MR. DI FAZIO: Thank you, Your Honours.

10 JUDGE AGIUS: Mr. Di Fazio, please proceed.

11 MR. DI FAZIO: On the contrary, I'm grateful to Your Honour for

12 that.

13 In any event, if Your Honours please, certainly the Defence

14 submission is that no probative value should be attached by you now, now,

15 now, at the end of the case, no probative value should be attached to a

16 document that hasn't been shown to a witness. That's how I understand the

17 submission. It's --

18 JUDGE AGIUS: The submission, as I understand it, and as we have

19 understood it, basically is the following: That if you have tendered a

20 document in evidence and it has been admitted with the usual caveat and

21 given an exhibit number, but you produced no witness to confirm either the

22 authenticity or the contents of that document, then in the eyes of the

23 Defence, that document has no probative value. There is no evidence --

24 you have not, in other words, fulfilled the obligation that you have as

25 Prosecution, the burden of proof that you have, to prove the authenticity

Page 16187

1 of each and every document that you bring forward. This is the

2 submission, as I understand it, from the Defence.

3 MR. DI FAZIO: Yes.

4 JUDGE AGIUS: The thing is that I need to make this clear: Out of

5 the 600 and so documents that you tendered, there is about 130, I didn't

6 bring with me the statistics, about 130 of them that you never referred to

7 any witness, right? You do, of course, refer to several of them in the

8 final brief, but about 132 of them were not referred to or put to any

9 witness.

10 And similarly, the same situation more or less obtains in the case

11 of Defence exhibits. Out of the 1.000 and I don't know how much,

12 there are over 300 documents that you yourselves never put to any live

13 witness.

14 So that's the position. And, of course, we reserve our position

15 on that. But we would love to hear all the submissions that you have in

16 that regard, Mr. Di Fazio.

17 MR. DI FAZIO: Well, I'll perhaps just finish on this point and

18 perhaps we can then have the adjournment.

19 Your Honour just took away my last point. I -- one of the last

20 points that I wanted to make on this issue, and perhaps I might as well

21 make it now. It's been fairly squarely raised by Your Honour.

22 That's this: The Defence itself put forward documentary evidence

23 that the Defence itself asks you to consider as part of its Prosecution

24 case -- as part of its Defence case, I'm sorry, I switched around. They

25 are put forward their own documents. They say to you, Consider this

Page 16188

1 evidence, evaluate it, consider it in assessing the Defence case. But

2 they have the same quality, those documents. No witness has commented

3 upon them, and/or there is no chain of custody. They emanate from

4 Ms. Becirevic in the way that many of the Prosecution documents emanated

5 from Ms. Manas. Do the Defence ask you now to ignore their case, to say

6 that their documents have -- you can attach no probative weight to their

7 documents? It would be -- it would not be right in the Prosecution's

8 submission for you to do that. The Defence are entitled to have their

9 documents considered and assessed in the light of all the evidence in the

10 case and for you to make a decision eventually about how much weight

11 you're going to attribute to those documents, as is the Prosecution.

12 So the Defence -- the Prosecution finds itself in the curious

13 position here of saving the Defence from its own submission.

14 If Your Honours please, this would be a natural point in time for

15 me to break. I'm proceeding faster than I thought. There is a slight

16 possibility I'll finish today.

17 JUDGE AGIUS: I thank you so much, Mr. Di Fazio.

18 We will have a 20-minute break now. We'll start at 1.00. Thank

19 you.

20 --- Recess taken at 12.43 p.m.

21 --- On resuming at 1.03 p.m.

22 JUDGE AGIUS: Yes, Mr. Di Fazio.

23 MS. SELLERS: Your Honour, if I might.

24 I would just like to correct the record, Your Honours. Earlier

25 today the Prosecution team also had co-counsel Mr. Jose Doria with us. He

Page 16189

1 is not with us now, but I wanted the record to reflect that. Thank you.

2 JUDGE AGIUS: All right. Thank you so much.

3 MR. DI FAZIO: Yes, thank you.

4 If Your Honours please, I'll end up now on this issue of

5 commentary by witnesses, whether it's a requirement or not, whether you

6 need it or not in order to evaluate documents, whether you need it or not

7 in order to give any weight to documents, whether you can rely on those

8 documents.

9 Firstly, I've -- you don't have to open your binders which I think

10 have been provided to you. But from the book that I provided to Your

11 Honours, International Criminal Evidence, at paragraph 79 -- 7.92,

12 page 244, the authors say this: "Independent evidence, whether oral or

13 documentary, may serve to corroborate, support, prove or disprove the

14 authenticity and probative value of documentary evidence but it is not

15 required."

16 That's what the authors say there with their considerable

17 authority.

18 Furthermore, if Your Honours please, in the Blaskic appeal, the

19 Appeals Chamber accepted many new documents in the -- by the Defence in

20 the course of the appeal, many of which were unsigned, undated and came

21 straight from Croatian intelligence archives, and the Appeals Chamber

22 accepted those documents on the appeal and furthermore relied upon them in

23 arriving at its decision.

24 Do Your Honours wish me to take you through the aspects of the

25 judgement that illustrate this, or is that submission -- I can do that

Page 16190

1 now. It won't take me a moment, or -- thank you.

2 If Your Honours please, there were four motions to admit

3 additional evidence in that appeal under Rule 115. The Defence had filed

4 apparently hundreds of documents as additional evidence in those motions

5 but never put forward any witness to speak to the truthfulness or the

6 authenticity of the documents that were filed and relied upon. And I can

7 give you some examples. In its first Rule 115 motion they filed 288 new

8 exhibits. You will see that in Annex A, paragraph 13 of the judgement.

9 The Defence claimed that the documents came from various archival sources,

10 Croatian Ministry of Defence, Office of the President of Croatia, HVO and

11 ABiH archives. No witnesses were called from the Croatian authorities or

12 the state archives in this regard, and you can see that at Annex A,

13 paragraph 11 of the judgement. So as I said, they are attached to this

14 Rule 115 motion and no witnesses were called. You can also see that at

15 Annex A, paragraph 13 to the judgement.

16 The Prosecution response was essentially the Defence response that

17 has been put forward here. In its Prosecution written response, the

18 Prosecution wrote: "The reports are anonymously written and that their

19 veracity cannot be determined absent the testimony of the authors or

20 recipients of these documents or other evidence supporting their

21 credibility. Even if one considers some parts of the documents truthful,

22 it is evidence that neither could be tested through cross-examination, nor

23 the authenticity of these documents otherwise be established."

24 That's the position of the Prosecution, and you can see that in

25 their response, that -- the formal document is Prosecution response to

Page 16191

1 Appellant's motion to admit additional evidence on appeal pursuant to

2 Rule 115 dated 13 September 2001, public version, paragraph 123.

3 The Prosecution therefore, as you can see, raised similar concerns

4 that the Defence are raising here with you.

5 On the 31st of October, 2003, the Appeals Chamber issued its

6 decision admitting a number of the documents as additional evidence.

7 So they were admitted. There was no order to have any witnesses

8 come forward to testify about their veracity or their authenticity or the

9 chain of custody for these particular documents. And the Appeals Chamber

10 relied in its judgement upon some of these documents, which had been

11 challenged on this basis by the Prosecution. And examples are Exhibit 1

12 to the first Rule 115 motion. Exhibit 1 -- yes, Exhibit 1 was in fact an

13 unsigned -- this is illustrative, an unsigned, unsourced document, and no

14 witness had testified about the document and it was admitted. And you can

15 find the Appeals Chamber's reference in reliance to that document in its

16 judgement, 29th of July, 2004, paragraph 342, footnote 76. And there are

17 other examples. So the matter has been determined by the Appeals Chamber,

18 such documents can be admitted into evidence and can be relied upon.

19 So, in summary, therefore, the Prosecution's submission is that

20 the Defence is plainly wrong in submitting to you that you can't or that

21 you shouldn't look at or evaluate documentary evidence in the absence of

22 commentary by a witness.

23 If Your Honours please, they are my submissions to you on the

24 chain of custody, how you should approach evidence where there is an

25 absence of a chain of custody and where there is an absence of commentary

Page 16192












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13 English transcripts.













Page 16193

1 by a witness.

2 So if you accept that you can look at them, you can evaluate them,

3 you can consider them, reflect upon them, how do you -- what should you do

4 in order to carry out that exercise? In paragraph 7.88 of the book, it's

5 clear -- I don't need to quote from it, but it's clear that the Musema

6 Trial Chamber was -- yes, considered the form, the content, the purported

7 use of the document, whether it's an original, whether it's a copy,

8 whether it's signed, sealed, whether it's stamped or certified in any way,

9 whether it's duly executed and so on.

10 So one of the matters that you can use to decide what weight you

11 will give to a document is the document itself, what jumps out at you from

12 the page itself, and that's something that you are perfectly entitled to

13 consider in attributing weight or not attributing weight to a document.

14 And, of course, not all but many of the Prosecution documents in this case

15 are originals and many are signed and stamped and have all of the features

16 that you have come to see over the almost two years of this trial.

17 So you can go to the document itself in order to get information

18 and in order to carry out that exercise of assessment of weight.

19 The other method, and a very good method in the Prosecution's

20 submission, is to look at the connection between documents. The

21 Prosecution submitted to you in its final brief, and I quote directly:

22 "Many exhibits are mutually corroborating or fit into a matrix or pattern

23 or other evidence."

24 The Prosecution resubmits that phraseology. It puts it -- I can't

25 put it any better than that. That makes the point nice and clearly.

Page 16194

1 And we need to return now to the Prosecution final brief, and the

2 Defence reply and revisit the submission, and there are a number of

3 reasons for that. Firstly, unfortunately, in the Prosecution final brief,

4 there are a number of errors concerning the connection between various

5 documents that need to be rectified. The Defence also replied to that

6 submission, and I want to look at one aspect of the Prosecution -- of the

7 Defence reply. And thirdly, because, if you look at that, the point that

8 I'm trying to make is illustrated quite simply.

9 Yes. Your Honours don't have to look at the actual brief itself.

10 I can tell you. It's paragraphs 35 through to the bottom of -- through to

11 paragraph 40, pages 16 and 17 of the Prosecution final brief, and there

12 the Prosecution was trying to illustrate to you the interconnectedness,

13 the connection between documents, and we used a number of documents, P3,

14 P84, P9, P57, which is unfortunately a mistake in paragraph 40; in fact,

15 we are referring to P587. And a number of documents, P80, as well. P80,

16 as well. That's an important document. And the way it's expressed in the

17 Prosecution final brief is that there is a connection between all of those

18 documents. That's not sustainable and I want to clarify that to you.

19 There are connections between the documents but not as -- not

20 as -- we have to be less ambitious than we were in those paragraphs, so

21 I'd ask Your Honours to, if you come to -- if you go to revisit that

22 Prosecution final brief, bear this in mind.

23 Let's look at P84. On the 14th of October, this is at page 7 of

24 the English translation. The 14th of October, there was a meeting of the

25 operations staff and the civilian protection, and various -- you can

Page 16195

1 follow through in the following pages, you can see the discussion

2 concerning who is going to be in charge of what, and various units that

3 are being -- the genesis of various units.

4 At page 10, you can see that they create an agenda for the

5 creation of various units in P84.

6 You then look at P9 -- incidentally this is a meeting held on

7 14 October 1992. P9 is an order apparently signed by Mr. Oric and it

8 basically reproduces all of the structures that you can see in P84. So

9 the discussions occurring and then it's reflected in P9.

10 I think it important, though, to point out just this: There is an

11 exception. P9 refers to the creation of the Kragljivoda Brigade, whereas

12 in P84, there is a reference to the Karacici Brigade. But other than

13 that, I think I'm correct in saying that it mostly follows the two -- the

14 documents and you can match them.

15 So you can see that there are connections that are important in --

16 for you to look at in deciding what weight to give to various documents.

17 In the interests of time, I think my point is made. I don't think

18 I need to labour you with more examples of where you can find these

19 connections. You can see them, Your Honours. I'll cut down my

20 submissions. You can see, for example, connections between P80, which

21 lists the -- some of the units and the formation history of various

22 command structures in Srebrenica. P80, for example, in simple little

23 ways, confirms other documents. There is a reference to the TO Osmace,

24 A3 Company with 121 conscripts whose commander is Atif Sakib Krdzic in

25 P80, and that's reflected in P570, same unit, A3, same numbers 121, same

Page 16196

1 commander. You can see that.

2 And the same applies with P80 and P571. Again, a quick cursory

3 glance at those documents will show you how they marry with each other.

4 The same number of conscripts, references to, in P80 to -- this is the

5 Biljeg companies. The same commander, Ahmo Tihic, same numbers, 136. And

6 in P571, you've got the same commander, two other documents consisting of

7 A4 Company and A41 Company, 127 men, plus nine men, total 136. So you've

8 got lots of connections and ways in which the documents connect with each

9 other. It would be impossible, if Your Honours please, in the time that

10 we have, for me to take you through, and it would just repetitive of me to

11 start giving you example after example after example to prove the point,

12 and I don't intend to.

13 But I think the point is well made.

14 However, when the Defence dealt with these submissions at

15 paragraphs 36 through to 40, they took the view that there was no

16 connection or demonstrated connection. Yes. And you can see where they

17 deal with this submission at -- they deal with it basically, if Your

18 Honours please, at paragraphs 111 through to -- they deal with it at

19 length in their reply.

20 I want to look at this aspect, P3. They say P3 is absolutely not

21 confirmed by those exhibits underlined, with emphasis, and they are

22 talking about -- one of the documents they are talking about is P9

23 because, of course, Prosecution raised that document to illustrate the

24 connection between P3 and P9. You can see that really, really simply. P3

25 and P9 are the simplest examples that you can find dealing with this.

Page 16197

1 P3 -- sorry, P9 is -- could we get it up on the screen? Yes, P9,

2 thanks, if P9 could be made just a bit bigger. I've only got P3 in front

3 of me and I can't read it. Thank you. Yes.

4 Okay. P9 is -- it's order number, handwritten, 28/92 dated

5 Srebrenica, 15th of October 1992. "I hereby order," et cetera, et cetera,

6 et cetera. Then you go to P3 and you can see in paragraph 2: "I hereby

7 order constant communication as per order number 28/92." And it's dated

8 three days later, 18th of October, 1992; 15th of October, 1992.

9 There you are. I just said I wasn't going to provide you with any

10 more examples and I did.

11 But the reason I did that was to show that the Defence reply, if

12 Your Honours please, was inadequate. I mean, these are the connections

13 that you can see, in so far as these two documents are concerned, at

14 least. These are the connections that you can see between a lot of the

15 documentation in this case, and it's something that you should really give

16 a lot of weight to in the Prosecution's submission.

17 Now, P -- just a few comments, if I may, about P84.

18 I'm sorry, what time do Your Honours want to --

19 JUDGE AGIUS: Quarter to 2.00.

20 MR. DI FAZIO: Quarter to 2.00, thank you. Thanks.

21 Some comments about P84. P84, if Your Honours please, was

22 objected to early in the case by the Defence. The nature of their

23 objection was not clear at that point, at least not to the Prosecution.

24 However, as time progressed, it seems that the Defence seemed to have

25 accepted that P84 is a genuine document, genuine in the sense that it

Page 16198

1 truly reflects what was written in the past by someone and that it's

2 talking about events that happened. I don't think I'm overstating the

3 case. The Defence will correct me if I'm wrong, if I've gone too far.

4 I'm sure they will. But that's how I understand the evidential scenario

5 concerning P84 and the Defence attitude towards it. During the

6 Rule 98 bis submissions, the Defence counsel went so far as to posit,

7 suggest the author of P84.

8 What does concern the Defence about P84 seems to be the content of

9 it, and the submission is made in their reply that it's just -- you can't

10 rely on this document because it's just subjective. It's someone's notes,

11 you don't know what was really said, you can't rely on it, you shouldn't

12 look to it, or you can't give it much weight in considering all the

13 evidence in this case. Not so, in the Prosecution submission, not

14 so. The very nature of the document is such that it needs -- it needs to

15 be as precise as it can be at the time of its creation. It's obviously a

16 log or diary dealing with matters of the utmost importance to the people

17 living in Srebrenica. And furthermore, if you go through the document,

18 you can see that every effort has been maintained -- every effort has been

19 made to maintain it as an accurate and detailed account. In the

20 Prosecution's submission, what jumps out at you from the pages of P84 is

21 the fact that whoever had his pen out and was jotting away was trying to

22 do a good job, trying to provide you-- trying to provide a good account, a

23 good record, of these events.

24 So the observation it's subjective, well, yes, that's true,

25 subjective in the sense that someone wrote it, but it's the sort of

Page 16199

1 document that calls out, requires its author, to be as objective as

2 possible when writing down entries into it. And, of course, much of it

3 deals with technical material, technical stuff that is not really going to

4 be the subject of subjective -- is not going to be tainted -- it's not

5 going to taint the document with subjective interpretation.

6 So it's, in the Prosecution submission, a pretty reliable

7 document, and it has connections with other documents. I've referred to

8 one of them, as you can see, between P84 and P9. And there are other

9 connections.

10 So they are the points that the Prosecution wants to make

11 about P84.

12 Let's stand back now and look at the general approach to

13 documentation on the part of the Defence in this case.

14 They have -- in their reply, the Defence have expressed their

15 displeasure at the Prosecution characterisation of a conspiracy theory

16 about the documents. I don't know what -- quite how to approach that

17 because I thought it was established and one of the clearest things in

18 this case. But there is no question that right from the beginning of this

19 case, the Defence were suggesting to you, and right through the case, the

20 Defence have suggested to you, that the Prosecution documentation, its

21 exhibits, are riddled with forged and false documents. They said in their

22 opening: "So, Your Honours, you will have sift out the may false, forged

23 and generally questionable documents which you have already heard about

24 and which you will continue to see exposed as such during this trial."

25 I don't intend to walk you through each and every allegation of

Page 16200

1 falsity or each and every Defence witness upon being shown a document

2 immediately pronounced it to be false. But it is fair, I think, to say,

3 for the Prosecution to say to you, that there has been a suggestion made

4 to you, at the beginning of this case and throughout this case, that there

5 is -- there are bad people behind the creation of these documents, people

6 who want to frame, for want of a better word, Naser Oric. I don't see how

7 the Defence can escape from that. In the Prosecution's submission, it's a

8 central plank of their defence. Yet there has not been one jot of

9 evidence in this case about that, as far as the Prosecution can ascertain.

10 It has been suggestion, it has remained suggestion, it is now suggestion.

11 And there is also an opportunistic nature to the Defence approach

12 to its handling of these supposedly suspect or forged documents. I've

13 already made the point -- sorry, I withdraw that, the Prosecution has made

14 the point in its brief concerning the use of documents from -- by the

15 Defence, from challenged collections, the Sokolac collection and so on.

16 This is puzzling in the light of what the Defence have said to you

17 concerning the suspicious nature of these collections and puzzling in the

18 light of what the Defence has said to you concerning the -- either the

19 positive assertion that there has been forgery or that there may have been

20 forgery of documents in this case. And the most dramatic example of that

21 is when the Court appointed expert provided his testimony here in court.

22 The Defence, of course, by then, had painted themselves into a

23 corner. The -- some of the crucial documents in this case, the ones

24 signed by Naser Oric, had been adjudged -- that's not the right

25 expression. The opinion of the expert was that they were probably signed

Page 16201

1 by -- I can't remember his precise language, but Your Honours will know

2 what I mean, probably been signed by the accused. And then, of course,

3 there is the evidence of the Prosecution expert, Dr. Fagel. There they

4 had to make the suggestion to him that he had lost his subjectivity but

5 there wasn't any reason put to the Court-appointed expert. That's the

6 puzzling thing. There wasn't any reason why he should have lost his

7 subjectivity when he is analysing these particular reports -- documents.

8 The -- that's not exactly conspiracy theory. That's something

9 else. That's a -- it's now moving from conspiracy theory to a suggestion

10 that people are biased against the accused for always inexplicable

11 reasons. And the same applied to the evidence concerning that video, the

12 interview, the uncrowned king of Srebrenica. There, the Dutch Evangelical

13 Church apparently and for reasons that I am still not entirely sure had

14 somehow played a part in either the production of this material to the OTP

15 or had somehow twisted it in some way so as to make it usable against

16 Naser Oric for the Prosecution purposes.

17 The final blow, though, to the conspiracy theory, and I say it's a

18 conspiracy theory, though, comes from the forensic handwriting expert --

19 experts.

20 If Your Honours please, I may want to come back to this topic

21 briefly tomorrow but I think I can just about complete my submissions on

22 this now.

23 Three experts came here to testify: The Prosecution expert,

24 Dr. Fagel, the Defence expert, Professor Bilic, and the Court-appointed

25 expert, Dr. Kerzan. The Prosecution specifically invites you to compare

Page 16202

1 the evidence of all three witnesses, all three expert witnesses, and to

2 compare their demeanour, the way they presented their evidence and the

3 content of their evidence.

4 In the Prosecution's submission, the Prosecution expert was -- and

5 Dr. Kerzan, were clearly superior to the Defence expert, Dr. -- Professor

6 Bilic. They were clearly more moderate. They were clearly more cautious

7 in providing their opinions to you. Professor Bilic, and I'd like to

8 check this overnight, if I may, in case I need to add anything to it, but

9 Professor Bilic was the only one of the Defence exhibits -- of the

10 handwriting experts who was prepared to express himself in absolutes. He,

11 Professor Bilic, was very, very clear. Some of these documents were

12 definitely not written by Naser Oric. Compare that with the approach of

13 Dr. Fagel or Professor Bilic who -- Professor -- Dr. Fagel or Dr. Kerzan,

14 sorry, I'm having a bit of trouble with my names today. They took pains

15 to make sure that you understood that you have to be cautious when

16 approaching this topic, and they took pains not to express themselves in

17 absolutes.

18 Now, if Your Honours please, there is just one or two other points

19 that I want to make about the handwriting experts. We've -- I'm happy to

20 say that I've gone a lot faster than I thought I was going to today, and

21 I'm just about at the end.

22 Would it be okay with you if we broke, adjourned now? I can

23 complete what I've got to say in a matter of five minutes tomorrow

24 morning, and we are right on time.

25 JUDGE AGIUS: All right. That's perfect with us.

Page 16203

1 Tomorrow belongs to you.

2 So we can adjourn now and we'll hear your final submissions

3 tomorrow morning. Tomorrow morning, we are sitting at 9.00, I think in

4 this same courtroom.

5 One moment.

6 [Trial Chamber confers]

7 JUDGE AGIUS: So there was a minor problem which I tried to sort

8 out last week, and that was that although I had the impression that we

9 would have -- we would be sitting four days in the morning and one day in

10 the afternoon this week, the afternoon sitting being Friday, I was told

11 that on Thursday we were sitting in the afternoon too. But anyway, now I

12 can confirm to you that we will be sitting in the morning and not in the

13 afternoon on Thursday. So that's particularly -- it's of concern to the

14 Defence. All right?

15 So we'll all meet, please God, tomorrow morning at 9.00. Thank

16 you so much.

17 --- Whereupon the hearing adjourned at 1.40 p.m.,

18 to be reconvened on Tuesday, the 4th day of April,

19 2006, at 9.00 a.m.