Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16204

1 Tuesday, 4 April 2006

2 [Prosecution closing statement]

3 [Open session]

4 --- Upon commencing at 9.04 a.m.

5 [The accused entered court]

6 JUDGE AGIUS: Good morning to you, Madam Registrar. Could you

7 call the case, please?

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

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

10 JUDGE AGIUS: I thank you. Mr. Oric, can you hear the

11 proceedings, follow the proceedings in your own language?

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

13 and gentlemen. I can hear you well and I understand the proceedings in my

14 own language.

15 JUDGE AGIUS: I thank you and good morning to you.

16 Appearances for the Prosecution?

17 THE ACCUSED: [Interpretation] Thank you.

18 MS. SELLERS: Good morning, Your Honours, I'm Patricia Sellers

19 Office of the Prosecution. With me today is co-counsel,

20 Ms. Gramsci di Fazio, Ms. Joanne Richardson, and our case manager is

21 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 16205

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. Naser Oric. We have with us this morning our

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

5 manager, Mr. Geoff Roberts.

6 JUDGE AGIUS: I thank you, Madam, and good morning to you and your

7 team.

8 Any preliminaries?

9 MS. SELLERS: No preliminaries on the side of the Prosecution,

10 Your Honour.

11 JUDGE AGIUS: On the Defence side?

12 MS. VIDOVIC: [Interpretation] No, thank you.

13 JUDGE AGIUS: I thank you both. I think I can give the floor to

14 Mr. Di Fazio to conclude on his part of the closing arguments for the

15 Prosecution. Take your time, Mr. Di Fazio. We are not in a hurry.

16 MR. DI FAZIO: Thank you, Your Honours. I will stop shortly,

17 after concluding this part of my submissions, but I will make a small

18 guest appearance later in the day following Ms. Richardson's submissions,

19 and that will be on the issue of witnesses and how to treat their

20 evidence, the issue of hostile witnesses that was raised by the Defence.

21 But if I can return now to matters that I was addressing you on yesterday,

22 just a couple of things from yesterday.

23 The reference to Mustafa Salihovic being -- said to be the note

24 taker of P84, if Your Honours please, is at the transcript in T-8967 to

25 68. One other matter that I wanted to raise to you about P84 is

Page 16206

1 concerning its subjectivity or objectivity, is the fact that it was

2 certified at the back of the document. That in itself is evidence that it

3 was intended to be some sort of official document. You'll find the

4 certification at the very back of the document. And that also lends

5 weight to the submission that it was not a document riddled with

6 subjectivity or useless because of subjective input.

7 The other matter that I very briefly wanted to raise with you,

8 it's perhaps a little obvious, but it needs to be made, it's, of course,

9 not just documents that support documents that are uncommented upon. It's

10 other evidence in the case. Nothing illustrates it better than the

11 example of the document raised by my colleague, Ms. Sellers, yesterday.

12 That was P25. That's, I believe uncommented on, and I believe has no

13 chain of custody. Yet the accused himself, as Ms. Sellers pointed out to

14 you yesterday, commented on the document itself. That is a document that

15 the Defence complains has shortcomings because it was never shown to a

16 witness. Well, you can see that's an example of how evidence in the case

17 can simply take care of that consideration completely in certain

18 circumstances. So it's not just documents supporting each other, it's

19 other evidence as well.

20 Can I turn now to the issue of forensic evidence? Yesterday I

21 made some submissions to you on the -- what I submit was the more cautious

22 and moderate approach of the -- Dr. Fagel and Dr. Kerzan when compared to

23 the evidence of Professor Bilic.

24 Just by way of illustration, let's just look very briefly at P75.

25 You don't need to look at the actual content of it. That's the document

Page 16207

1 dated the 26th of May and is an expansion of the Srebrenica TO Staff from

2 seven to ten members so it comes -- it's created on the face of it very

3 shortly after that all important Bajramovici meeting. That was objected

4 to by the Defence. It was emphatically declared by Professor Bilic not to

5 be by Naser Oric. You can see -- you can see it in -- I believe it's

6 annex B to the Prosecution's final brief, which sets out all of the

7 results of, inter alia, amongst other things, of documents that were

8 examined by all three experts and you can see the results there. Highly

9 probable according to Fagel, not by Naser Oric, according to Professor

10 Bilic; written by Naser Oric, according to Dr. Kerzan.

11 This is also a document from the Sokolac collection as well. So

12 that deals a double blow, firstly to any suggestion of conspiracy or the

13 work of a seasoned Serb forger and secondly -- sorry, I withdraw that. It

14 certainly deals a blow to that conspiracy theory. And secondly, of

15 course, it's a very damaging document because of the actual content

16 itself.

17 The Prosecution expert, Dr. Fagel was in the Prosecution's

18 submission probably the best placed of all the experts, handwriting

19 experts, to give you in -- opinions. His qualifications were clearly

20 impressive. His own qualifications, his experience, and his ongoing

21 contact with other experts in the field. He had no rational or explicable

22 reason to colour his conclusions or to be influenced by consideration --

23 other, outside considerations in reaching his conclusions.

24 And most importantly of all, he had a really good range of known

25 signatures, the best of all three experts, to use as his tool in comparing

Page 16208

1 the questioned signatures. He had, I can't recall off the top of my head

2 now, but over 30, if I recall, known signatures of Naser Oric to use in

3 coming to his conclusions, which is far better than both Kerzan and Bilic.

4 Far better. And it permitted him to have a far better view of natural

5 variation in the signatures and, of course, natural variation is, in the

6 Prosecution's submission, the sort of thing, the sort of features that

7 Professor Bilic hung his hat on. The dot, you recall the dot, and the

8 distance of loops and so on from other structures in the signature and so

9 on. So he was able to observe, as I said, far greater variation. He's in

10 a far better position to be able to tell you whether something is the

11 result of the forger's lack of skill or whether it's natural variation.

12 It's something that is important in the Prosecution's submission.

13 Coming back to P75, it also is relevant to the issue of the

14 Hamdija Fejzic signatures.

15 Would Your Honours just bear with me for a moment?

16 [Prosecution counsel confer]

17 MR. DI FAZIO: If you accept the evidence of Dr. Fagel and

18 Dr. Kerzan on P75, namely that it's Naser Oric's signature or extremely

19 likely to be Naser Oric's signature, then it -- the conclusion of

20 Professor Bilic that the other signature that appears on P75, namely that

21 conclusion that it's a forged signature or not the signature of Hamdija

22 Fejzic, carries far less weight in the Prosecution's submission. It's

23 most unlikely in the Prosecution's submission that you'd have the

24 juxtaposition of one known -- one genuine signature, this is if you accept

25 the two experts. I say you should. But it's very unlikely that you have

Page 16209

1 them both together -- forgery and -- or it's just not explicable or

2 comprehensible reason why that should be so. And in the Prosecution's

3 submission, if you -- as I said, if you accept the evidence of Kerzan and

4 Fagel, that's going to throw a lot of doubt, should cause you a lot of

5 misgivings about the other body of evidence of Dr. -- Professor Bilic,

6 about the Fejzic signatures. Finally on the --

7 JUDGE AGIUS: Mr. Di Fazio, would you accept that any case of any

8 expert, calligraphic expert or handwriting or signature expert, that

9 expert notwithstanding his or her expertise, could be completely right in

10 some conclusions and absolutely wrong in others?

11 MR. DI FAZIO: As a matter of a possibility, I would have to, as a

12 matter of reason, accept that. Not just a handwriting expert, any expert

13 in any given field.

14 JUDGE AGIUS: At the moment we are talking about handwriting

15 experts.

16 MR. DI FAZIO: Okay. In the case of handwriting experts, I can't

17 suggest to you that that is a matter much impossibility.

18 JUDGE AGIUS: I think we need to understand what your position

19 is. As regards Fagel and Kerzan, I think we completely understand what

20 you are submitting. In regard to Professor Bilic, are you submitting that

21 all his findings should be ignored?

22 MR. DI FAZIO: Yes, yes. I'm submitting that --

23 JUDGE AGIUS: Even considering the difference in the burden of

24 proof between the Prosecution and the Defence when it comes to

25 authenticity of documents?

Page 16210

1 MR. DI FAZIO: I understand what Your Honours are saying.

2 JUDGE AGIUS: In other words, if the situation obtains where

3 Professor Bilic has examined this exhibit, which neither Mr. Kerzan and/or

4 Mr. Fagel or Mr. Koeijer have examined and he's come to a specific

5 conclusion, are you submitting that because, according to you, Fagel and

6 Kerzan are more reliable than Professor Bilic is, therefore, logical or --

7 logical conclusion should be that all Professor Bilic's findings ought to

8 be thrown overboard when the burden that the Defence has in that regard if

9 they take it upon themselves to prove that a particular document is forged

10 or is not authentic, theirs -- the burden of proof is not like yours.

11 MR. DI FAZIO: No. I understand that, Your Honours. I appreciate

12 that and that's a very valid point. All I can say is this is a common

13 problem that all courts face when they have experts of competing views and

14 unfortunately courts are charged with having to make decisions about that

15 sort of evidence. Now, if you can't dismiss what Bilic said as being

16 either unreliable or not correct, if you can't say that, then I suppose

17 you would have to accept for the possibility that what he says may be --

18 may be correct. And then you would have to look at all of the other

19 evidence in the case in deciding on the genuineness of the documents but

20 the Prosecution -- you can never get away from that particular problem,

21 any Prosecution can never get away from that particular problem, and the

22 Prosecution's submission is, however, that you've got to look at all of

23 the handwriting evidence together, in its entirety, and you can, when you

24 do that, reject the evidence of -- you're entitled to reject his evidence.

25 You're perfectly entitled to do that and you're entitled to reject it

Page 16211

1 either as not reliable enough for you to rely upon it, or, as simply

2 incorrect.

3 JUDGE AGIUS: I put this to you because apart from this aspect

4 that I have just mentioned, there is also some -- there are also some

5 documents that have been examined by both Mr. Fagel and Mr. Kerzan, two

6 that you have more or less put on the same level, and they disagree

7 amongst themselves as well. Documents that Mr. Fagel said, plus plus,

8 Mr. Kerzan says one plus or even zero or neutral. And vice versa.

9 MR. DI FAZIO: It's significant though that where Dr. Kerzan

10 differs from Fagel he differs only that he couldn't come to any particular

11 conclusion. And there, it's a fundamental difference from

12 Professor Bilic, who in those particular cases was emphatic this is not

13 the signature of Naser Oric. And one would have thought that in those

14 circumstances, that Dr. Kerzan would have been able to, if indeed those

15 signatures do display features that clearly point to them not being the

16 signatures of Naser Oric, that he too would have reached that conclusion.

17 JUDGE AGIUS: All right. Let me not interrupt you any further.

18 MR. DI FAZIO: Thank you, Your Honour.

19 Your Honours, just returning to Fejzic, if I might just pause

20 there, will you permit to have a think about what Your Honours have raised

21 and if necessary I might revisit this issue for about four or five minutes

22 on Friday and if -- so that I can gather my thoughts about it. It's a

23 good point and the Prosecution is not trying to evade it. I'll have --

24 perhaps return to you on this very briefly on Friday.

25 JUDGE AGIUS: I wasn't suggesting that you were trying to avoid,

Page 16212

1 Mr. Di Fazio. In fact, you will have every opportunity -- not just you

2 but the Defence, of course, to elaborate on any argument that you need to.

3 MR. DI FAZIO: Yes, thank you.

4 The other issue concerning Fejzic's signatures is this: You can

5 see from annex -- what -- annex B, that the results of his -- the results

6 of Professor Bilic's conclusions most probably not by -- sorry, would

7 Your Honours just bear with me for a moment?

8 Yes. In relation to P74, P73, and P75, not by Hamdija Fejzic.

9 Those signatures were never provided, the known signatures were never

10 provided. The Prosecution has addressed you in its closing brief, final

11 brief, on this, at paragraph 43. We comment that it's extraordinary that

12 an expert report relying on a number of supposed non-contentious documents

13 as the touchstone for analysing disputed documents does not include those

14 very signatures. It's, in the Prosecution's submission, the failure to

15 provide those known signatures is really very damaging to the evidence of

16 Professor Bilic. The Defence reply is also inadequate. Paragraph 106,

17 they make the submission that it was not the decision of Professor Bilic

18 but that of counsel. The point the Prosecution makes is that that's just

19 beside the point. Regardless of whose decision it was, the fact is that

20 the controls, the nine signatures, were not made available to you and that

21 must have a devastating effect on the evidence of Bilic. It essentially

22 it means that the tool for testing his evidence, namely cross-examination,

23 was emasculated, so to speak. You can't do it. You can't test it in

24 cross-examination unless you've got the known signatures.

25 If Your Honours please, that completes my submissions on the

Page 16213

1 documentation. As I said I may return to it briefly on Friday. Just to

2 address you on this other issue that Your Honours raised this morning.

3 But if I do, I shan't be long.

4 I want to turn now, if Your Honours please, to the attacks, one

5 aspect of the attacks.

6 The Prosecution submission is that there is evidence for -- in all

7 of the attacks of soldiers or fighters participating in the burning of

8 villages. I don't propose to go through all of that evidence and

9 recapitulate, sorry, restate it all. It's contained in the Prosecution

10 brief.

11 The Defence, in its closing brief, at paragraphs 1420 to 1424

12 dealt with the topic of the impossibility of dealing with civilians at the

13 attack sites. And they were essentially, as I understand it, two defence

14 submissions. Firstly, it's well known that the destruction was caused by

15 civilians, and I understand that to be a reference of destruction by fire.

16 It was caused by civilians. I'm not ignoring the other Defence theories,

17 of course, but -- of Serb counterattack, aerial bombing, and so on, but,

18 as I understand it, one of the more significant -- or a significant factor

19 in the causation of the burning, who caused it, was the civilians. And

20 the second is that they were impossible to control.

21 The Prosecution submission is that far from being impossible to

22 control, the -- both soldiers and civilians burnt at the villages, at the

23 attack sites. When they did so, command responsibility attaches to the

24 soldiers who burnt. If those soldiers at the attack sites aided and

25 abetted the civilians in the burning of dwellings and structures, then

Page 16214

1 responsibility also attaches and that's been dealt with in the Prosecution

2 brief at length. I don't intend to go through the law or recapitulate

3 that. It's all been set out. It's fair to say that the Defence ought to

4 paint a picture of milling and desperate and uncoordinated and

5 uncontrolled civilians who were gathering around in large numbers, and the

6 reason for that is clear. It's firstly to attribute some or all of the

7 destruction solely to civilians, and to -- furthermore to establish that

8 any soldiers who were there were not aiding and abetting the acts of

9 destruction carried out by civilians.

10 Aiding and abetting, as Your Honours can see from the Prosecution

11 final brief, paragraph 203 consists of assisting, encouraging, lending

12 moral support to the perpetration of a crime so that it has substantial

13 effect with the knowledge that the conduct will assist.

14 There is on the Prosecution case a clear policy or pattern of

15 burning that emerges from the -- from the evidence in the case. It was an

16 ongoing activity spread over a period of time. The Prosecution final

17 brief has addressed you at length about -- on that issue. You can recall

18 the evidence of Pyers Tucker on the Serb concerns over the issue of the

19 burning of villages and how that concern sharpened beyond what were their

20 normal concerns in late 1992 and early 1993. And in the discussion on

21 generalised evidence of burning, there is also reference to other Serb

22 documents that clearly show a Serb preoccupation with the practice of the

23 burning of villages in the area.

24 So this undermines any suggestion that the burning was the

25 spontaneous result of uncontrolled civilians and rather points to the

Page 16215

1 phenomenon as being far from that.

2 There is clear evidence in the case that at the time of the

3 attacks in -- on the various villages, both civilians and soldiers burnt

4 together. On the same occasions, often in close company with each other.

5 I know what all the Defence arguments concerning lack of uniforms and the

6 inability to distinguish. On the other hand the Prosecution submits to

7 you that the evidence of the witnesses, when they described fighters, is

8 generally pretty reliable. They were able to -- they felt happy in their

9 own minds. They were able to see if people were armed, wearing camouflage

10 uniforms or parts of camouflage uniforms, and in the Prosecution's

11 submission, that's there for you to decide and there is nothing further

12 that I want to add to it.

13 But the fact that they were both engaged in burning in the same

14 location at the same time in the Prosecution's submission is evidence of

15 the soldiers aiding and abetting the civilians in the act of burning or

16 torching the villages.

17 To return to that issue of the civilians acting or cooperating

18 with the soldiers, I just want to look at some aspects of the attacks.

19 Firstly the attacks were, on the Prosecution case, surprise attacks. Just

20 give me a moment, please.

21 Yes. They were surprise attacks. The element of surprise in this

22 situation was absolutely crucial, and it was particularly so in the case

23 of Poljandt [phoen], attackers such as the Muslim fighting forces in this

24 case where they were advancing into what on the Defence case are heavily

25 fortified military compounds or villages. That element of surprise would

Page 16216

1 have been utterly, totally crucial for the successful outcome of any such

2 attack.

3 And that's why there is evidence of a number of the attacks at

4 least occurring at dawn or thereabouts.

5 And it was imperative therefore that in order to preserve that

6 civilians needed to cooperate with the soldiers and vice versa. The

7 civilians knew their role at the start of the attack. The fact of

8 convergence of civilians at attack sites also indicates a degree of

9 working together. The Defence case, of course, is that everyone knew the

10 attacks, the attack site, and they couldn't be stopped from gathering.

11 The Prosecution submission is that that is simply not so, in the

12 evidential scenario in this case. It was a matter of life or death.

13 Success or failure of an attack was a matter of life or death. It was

14 imperative that the element of surprise be maintained and is imperative

15 therefore that the civilians have to have had some sort of understanding

16 of their role at the attack sites.

17 And Kada Hotic -- excuse me. Kara Hotic, who testified on behalf

18 of the Defence, demonstrated how easy it was to simply keep the civilians

19 away. That was the idea. She was talking about letter son, who was a --

20 who would go off to fight. She said, "I didn't know what time the

21 fighters would leave. I didn't see that and I couldn't always know

22 something like that. Even when my son was leaving the house, sometimes he

23 would go to his friends and he wouldn't even say anything to me. He

24 wouldn't say goodbye. This happened also." That's at 9809. That's a

25 simple demonstration, if Your Honours please, of how, if fighters wanted

Page 16217

1 to keep the attack site quiet, concealed, from other civilians, it was

2 possible to do so, and it's even more imperative if the element of

3 surprise is one of the crucial factors in your ability to successfully

4 carry out an attack as it must have been in this case with Muslim fighters

5 who were probably not as well armed as the Serbs on the Defence case.

6 The civilians also knew what to do at the attack sites. Kada

7 Hotic also testified about that need to keep quiet at the attack sites and

8 she said, "Everyone was aware that they had to be quiet so that they

9 wouldn't be noticed." That's at 9810. And at 9815 of the transcript she

10 said there was a kind of implicit agreement. And this is a picture that's

11 at complete variance with the Defence case of uncontrolled melee there.

12 So there is clear evidence of the civilians and the fighters having some

13 sort of working understanding.

14 There is also evidence that the attacks were committed to obtain

15 food as well as other strictly more military objectives, and it is the

16 Prosecution's submission that they, the civilians, had to play a vital

17 role in that. It was imperative that they obtain as much food as quickly

18 and as fast -- as quickly and as comprehensively as they could in order

19 for these attacks to be carried out successfully, particularly so where

20 the food gathering is the main object of the attack. P84 contains

21 references to the envisaged obtaining of large quantities of food.

22 Sorry, would Your Honours just give me a moment?

23 There are references in P84 to I think at page 4 of P84 there is a

24 reference to the need to set up a warehouse and a reference to smuggling,

25 the need to stop smuggling of food. And in the context of what we all

Page 16218

1 know about what was going on at the time in 1992, that reference to

2 smuggling in P84, in the Prosecution's submission, can only be a

3 reference, reasonable reference, to stopping solo civilians taking away

4 food, food for themselves, and it does n the Prosecution's submission,

5 tend to indicate something level of organisation for the civilians. In

6 those circumstances, in all of those circumstances, in the Prosecution

7 submission, given the pattern of burning, the level of cooperation and

8 working together, the Prosecution's submission is that where the civilians

9 conducted burning, the fighters or soldiers must have been aiding and

10 abetting them.

11 Thank you, Your Honours. That now completes my submissions on the

12 attacks. As I said, I'll return briefly to address you on the issue of

13 hostile witnesses. So my colleagues will now address you.

14 JUDGE AGIUS: I thank you so much, Mr. Di Fazio.

15 Who is next? Ms. Richardson or Ms. Sellers?

16 MS. SELLERS: Your Honour, you return to me. Just give me one

17 second so I can move the lectern.

18 Your Honours, Mr. Di Fazio has already started our review of the

19 crime base. He looked at the attack sites. He raised a couple of points,

20 emphasised those that we have already briefed you in our closing brief.

21 But to further explain, I will now do that with what we refer to as the

22 first prison scenario and then Ms. Richardson will do that with the second

23 prison scenario.

24 You have heard the evidence, in particular, of Nedeljko Radic and

25 Mr. Zikic, two men who were imprisoned in the Srebrenica SUP building.

Page 16219

1 Nedeljko Radic comes around September 15th whereas Mr. Zikic comes after

2 the attack on Fakovici, the 5th of October. I would like to highlight a

3 bit of the evidence that leads you to questions of subordination, modes of

4 liability, and identification.

5 In respect to the attack at Podravanje that incorporated the

6 capture of Nedeljko Radic at the mine in Branka on the 25th of September,

7 and then also Mr. Dragutin Kukic, who dies in the first prison scenario,

8 along with the imprisonment of Bubanj, Saric, and the men in that very

9 first instance, I think the Trial Chamber should be reminded that the

10 Defence has often said they were beaten before they got to the prison.

11 And this is true. They did arrive at the prison in a state where their

12 bodies had suffered physical blows. And the only evidence related to

13 those physical blows is that they were inflicted on numerous occasions by

14 subordinates of Zulfo Tursunovic. Naser Oric's subordinates have already

15 beaten those prisoners prior to them arriving at the SUP. Zulfo

16 Tursunovic is aware that it's his men who had to take Nedeljko Radic in

17 particular to his house and then they received word that they could be

18 transported to the prison in Srebrenica.

19 Mr. Radic arrives in his underwear. His clothes have been taken,

20 which is not an unusual practice according to the Defence theory, that at

21 times clothes were taken from members of the enemy, often from dead

22 bodies. When Nedeljko Radic arrives in his underwear, it's uncertain how

23 many days that he was in his underwear before Cude a military police

24 officer who was a guard at the prison, admitted to by the Defence, gives

25 his a blanket.

Page 16220

1 I highlight this point because it has often been raised that the

2 beatings left wounds and injuries only on the body and not on the face.

3 Therefore, Naser Oric, if he were at the prison, and it's certainly the

4 Prosecution's position that he was at the prison, couldn't see any of the

5 injuries. Well, Cude gave a blanket to Nedeljko Radic but it's uncertain

6 and quite possible that the body of Nedeljko Radic, at times his legs and

7 his chest, were visible. Your Honours, the beatings that the men received

8 during the first prison scenario are beatings that the military police not

9 only had knowledge of, were aware of. They also assisted.

10 Now, we go back to that issue that we've raised many times, where

11 the military police, the guards at the prison. We've already spoken again

12 about Cude, Sabahudin Omerovic, listed as a military police officer. If

13 we go to the transcript of Nedeljko Radic at 3528 or 3613, more evidence

14 of police officers, whether they are giving guards, giving order to the

15 prisoners or they are functioning as guards. Now, one has to say, and the

16 Defence is certainly accepted, that Cude was the good guard. What made

17 him the good guard? He didn't allow people to come into the cell to beat

18 the prisoners. He knew that was incorrect. But Cude did open up the cell

19 and allow the prisoners to go out, at times one by one, to be beaten by

20 Kemo and Mrki. Was Cude afraid of Kemo, afraid of Mrki, or was this where

21 the one time his good conscious necessary was not in effect?

22 The Prosecution does not in any way try to speculate about motive

23 but by opening the door to the cell, and allowing the men to be beaten,

24 sequentially, he has facilitated those beatings. He has assisted those

25 beatings, perhaps unwillingly, perhaps regrettably, but he has aided and

Page 16221

1 abetted in the beatings of the prisoners in the very least by Kemo and by

2 Mrki.

3 We have other information too, when the turnkey is present. It's

4 present when Kemo urinates into the mouth of Nedeljko Radic and Mrki is

5 present also. This reference to be 3691 until 3692.

6 In the very least, Cude knew the difference, he knew that he could

7 prevent and he knew what it meant not to prevent the beatings.

8 Another matter that the Trial Chamber should consider, and this

9 goes to several issues but in particular inquiry notice of Mr. Oric during

10 the first prison period, is that his deputy, Akif Ustic, came to the

11 prison. This is at the transcript 3623. Akif Ustic comes to the prison,

12 once again we have a military presence at the prison, and he assures the

13 prisoners, "We will treat new regard to the Geneva Conventions." Now it's

14 not the Prosecution's position that Akif Ustic, Zulfo Tursunovic, or Naser

15 Oric knew every provision of the 4th Geneva Convention in regard to

16 civilians or the 3rd in regard to prisoners of war. But they certainly

17 knew that there were legal safeguards that they were to respect in regard

18 to detaining prisoners of war and civilians. And they assured the

19 prisoners, Akif Ustic assures the prisoners, "We will treat you with

20 regard to the Geneva Conventions."

21 Between Zulfo Tursunovic and Akif Ustic, Naser Oric is certainly

22 aware that there are prisoners and that there are duties in regard to the

23 prison, these prisoners. The Trial Chamber should not overlook the

24 significance of this evidence.

25 Furthermore, the Trial Chamber should understand that the visitors

Page 16222

1 to the prison do not include the civilian war president. Hajrudin Avdic

2 did not come to the prison. Mr. Bogilovic does not come to the prison,

3 nor his deputy Nurija Jusufovic. This is not the matter of a civilian

4 authorities. Now, the Defence would want us to believe that because there

5 were 11 prisoners, really Serb citizens, detained from Karno in the month

6 of August, and for that we have a handwritten note to Avdic, first name

7 Avdic, saying, "People are detained. What should I do with them?" They

8 would want that one-time experience of finding a link between persons

9 involved in the War Presidency to be proof that the War Presidency had the

10 responsibility for the prisoners or in the very least the responsibility

11 of Mirzet Halilovic who they know had responsibility for the prisoners.

12 The evidence is not only not convincing. There is a bit of

13 illogic. There is certainly no follow-up. Why didn't any members of the

14 Presidency come to the prison or arrange the exchange, even the first one

15 that failed, talking on the radio. Naser Oric did that with the prisoner

16 Sadic. It wasn't even the liaison person. Hamdija Fejzic didn't exercise

17 his executive role there to be the link between the military and the War

18 Presidency in regard to the prisoners. The prisoners' affair was a

19 military affair. Detained, processed, and exchanged, and guarded. These

20 were the affairs of the Srebrenica armed forces.

21 The timing is crucial. The Defence attempted to have

22 Mr. Bogilovic state that it was really the military police who were the

23 subordinates to the civilians and on cross-examination -- and right now

24 I'm referring to transcript page 6430. But Mr. Bogilovic could not agree

25 with them that the military police came under the War Presidency prior to

Page 16223

1 his having a special supervisory relationship to Mirzet Halilovic. So

2 from the moment that the prisoners were picked up September 25th, October

3 5th, we are talking about the responsibility of the Srebrenica armed

4 forces commanded by Naser Oric. The War Presidency had no responsibility,

5 doesn't appear that they had any administrative tasking in regard to the

6 prisoners. The Defence theory of Karno shows that there were civilians

7 that were detained and sometimes the War Presidency involved themselves in

8 it. It can show nothing more than that.

9 The only other time that we have a civilian presence near the

10 prisons is Zeli [phoen], who happened to stop by a stretcher. But that

11 will be addressed in the second prison scenario.

12 The exchange of prisoners is important. It's vital. It's the

13 ability to get fighting men back and regrettably dead soldiers back. I

14 believe that there were officers, Lieutenant Rex Dudley and the CanBat

15 officers, who talked about the question of morale that was involved in

16 knowing that if you fell during battle on the enemy line, that your body

17 would be brought home to bury, and I think that that was taken very

18 seriously, and as a result, the matter of prisoners is very serious

19 because that is what we use for exchange. After Akif Ustic is killed,

20 immediately, immediately, the prisoners will be exchanged.

21 That is the next subject that I'd like to talk about, issues and

22 evidence around that exchange. Because the Defence has now thrown a

23 theory of the Naser Oric look alike, Mrki, being present on the night

24 prior to the prison exchange. They would have Your Honours consider that

25 it was Mrki who asked the prisoners about Akif Ustic, conceding that Mrki

Page 16224

1 Omerovic was a member of Akif Ustic's unit and therefore had emotional

2 ties and was extremely upset at the death of Akif Ustic. If he was a

3 member of the unit then that places him within the Stari Grad unit that's

4 based in Srebrenica, places him as a subordinate from the very beginning,

5 under Naser Oric. But the theory of Mrki being present in the room that

6 night doesn't hold. It's because Nedeljko Radic, who at this point in

7 time, has been beaten several nights by Kemo and by Mrki, he recognised

8 who Mrki is and who is not Mrki. He was able to come back to us the day

9 after his first day of giving evidence in court and correct himself and

10 say, well, Mrki had the uniform. He had a uniform on, as a matter of

11 fact, that looked like Naser Oric's because it had lilies on it. He never

12 once said, and Mrki himself looks like Naser Oric. Spoke about them as

13 two separate individuals.

14 Nedeljko Radic wasn't certain whether Mrki was in the room the

15 night that Naser Oric asked the prisoners, don't you know about Akif

16 Ustic? The reason he wasn't certain could only assist Your Honours in

17 understanding that he was certain that Naser Oric was not Mrki. Now, one

18 could say Naser Oric came to the first prison and identified himself, "I'm

19 Naser Oric." The Defence would have you believe that's Mrki fooling

20 around again, making us laugh, that's a joke. That can't be true. The

21 evidence shows that when Naser Oric came into the SUP building there was a

22 hush that came about. One would think that when Mrki walked into the SUP

23 building people were ready for a joke. There would be no lowering of the

24 volume of the hush because the commander was there. It was Naser Oric who

25 walked into the prison, into the cells.

Page 16225

1 The Defence theory of Mrki is one of those double knots that

2 they've tied a little too tight at the end. Not only it doesn't make

3 sense, it points in the opposite direction. We have prisoners who know

4 Naser Oric. Sadic knew him from before the war, is taken out of the cell,

5 conducts the radio calls to the Serb authorities related to the exchange.

6 Nedeljko Radic, who Sadic informs "that's Naser Oric." But after the

7 first time that Nedeljko Radic and the other prisoners see Naser Oric then

8 they recognise him and the subsequent times they see him, in particular

9 when they are taken out of the room on the night before the exchange.

10 Zikic sees Naser Oric, they speak, might be a little confused about when

11 and whom Naser Oric relates the Arkan story - excuse me - about when and

12 whom Arkan marries his wife, such a big event but he knows that Arkan

13 married a famous singer. When he came to testify here he confused those

14 facts. I don't think that Naser Oric told Mr. Zikic at that point in time

15 anything about the marriage of Arkan. I think he was talking about the

16 gun that he had. I think he was talking about that ambush that made him

17 famous. And I don't think that Mr. Zikic forgets that conversation or

18 with whom he had it.

19 From that point on, if he didn't know Naser Oric, he certainly

20 knew him and recognised him. Nedeljko Radic sees Naser Oric afterwards,

21 states that he's 100 per cent sure, sees Naser Oric in a film on a horse,

22 and then recognises him again when he's brought to The Hague. Now, the

23 Defence tried to shake that recognition. Mr. Nedeljko listened a bit

24 amused, but if you grow a beard, if you put on weight, if I know you I

25 know you, I recognise you. It doesn't mean someone can't change. We have

Page 16226

1 three very good instances of recognition, identity, in the first prison

2 scene.

3 We have confirmation Naser Oric wears a uniform, that his deputy

4 comes to the prison and that his future deputy, Zulfo Tursunovic, his

5 subordinates actually escort the prisoners.

6 The guards have aided and abetted the physical beatings. The

7 Defence then tries to run to what appears to be almost another theory.

8 Well, Mirzet Halilovic was punished. There was no failure to punish. He

9 was removed. They say "I reported him to the War Presidency," still

10 trying to make Your Honours embellish the War Presidency as having

11 responsibility. Well, let's assume that part of what they are saying is

12 true. Let's assume that Naser Oric exercised his duty to punish Mirzet

13 Halilovic, even under, let's say, a joint command theory. Shows he's

14 capable, shows he can act, shows that it is a horrible thing to maltreat,

15 mistreat prisoners, particularly to kill prisoners. This should be more

16 than sufficient evidence to Your Honours that Naser Oric can act, does

17 have effective control, when he chooses to exercise it, and more

18 importantly, that act of dismissing Mirzet Halilovic should put him on

19 inquiry notice about the prison, because something doesn't make sense.

20 Now, the Prosecution committed a grammatical error in the closing brief.

21 We forgot a period. We might have misled the Trial Chamber and, with

22 regrets to the Defence, of ever suggesting that Naser Oric was in the room

23 in the cell when the body of Kukic was in the cell. There should have

24 been a period that said Kukic's body was there until 10.00 in the morning,

25 period, when Naser Oric came. Naser Oric came at a different time. The

Page 16227

1 body wasn't there. The body was gone, disappeared, missing.

2 He asked about Mr. Kukic and he's informed quite hesitantly that

3 he died of a heart attack. Why didn't he ask where was the body? I can

4 still exchange that. That suffices for me to receive bodies back of my men

5 back in return. Is the body buried in the church cemetery where other

6 prisoners was buried? Was the body taken to the hospital? The body

7 disappeared. Is this the person that Mirzet Halilovic beat to death?

8 Were the prisoners not telling me the truth? It wasn't a hard attack?

9 Oh, this is the person Mirzet killed? Should I ask Cude? One of the

10 guards? Anyone else? He said he'd leave it up to the military court.

11 That was their job. Oh, so was there a functioning entity of some type

12 who was supposed to look into that, that was military-based, and did they?

13 No. Naser Oric was able to punish. He failed to follow up

14 because the real information that he could have uncovered were the nightly

15 beatings by Mrki, Kemo, and the killing of Dragutin Kukic by Kemo. He

16 doesn't do that. The last time he comes to the prison it's because of Akif

17 Ustic.

18 And, Your Honours, I would like for you to look at small video

19 again from the prison, and whereas before, the Trial Chamber looked at the

20 video in regard to corroborating the evidence of Nedeljko Radic,

21 corroborating recognition by Mr. Saric of Naser Oric. I would ask you to

22 look at it again for a very different reason.

23 And this is P448, if you give me one second.

24 [Videotape played]

25 JUDGE AGIUS: Yes, one moment. For the record, the video starts

Page 16228

1 at -- why did they take it away? At 08 minutes 44.8 seconds. Thank you.

2 MS. SELLERS: Your Honour, I've just been informed that we are

3 having problems with the sound again. If you would give me a couple of

4 seconds.

5 JUDGE AGIUS: Certainly, Ms. Sellers.

6 [Videotape played]

7 THE INTERPRETER: [Voiceover] What's the matter what happened to

8 you? I didn't dare say I hit an iron fence when I was getting out

9 tonight. Don't lie. You know I hit you and I have never hit a prisoner.

10 But I did hit you. Why didn't you say that you knew Akif Ustic? In that

11 short time I did not remember to say in all that fear. I only said that

12 this was the man, the son of Enis the barber. He's his deputy and he has

13 a mustache. But it was too late.

14 JUDGE AGIUS: Yes. For the record the video stopped at 09 minutes

15 36.6 seconds.

16 MS. SELLERS: Your Honour, the Prosecution has shown this video

17 this time because this video is evidence of Naser Oric failing to prevent.

18 The night before the prisoners are exchanged, he sees that the prisoners

19 are bloodied. He himself is mad because his deputy has been killed. What

20 he asked Mr. Saric is, "What happened to you?" There might even be a

21 question of, was this question asked the following day. But let's say we

22 are still in the room on the night before the exchange even though it

23 appears to be a past tense conversation, "What happened to you?" He

24 says, "I never hit a prisoner before. You know I hit you." Seems to be a

25 past tense conversation. "You know I hit you and I never hit a prisoner."

Page 16229

1 Naser Oric knows the difference between how one is supposed to treat

2 prisoners and how one is not supposed to treat prisoners.

3 Mr. Saric once again does what many people in powerless positions

4 do in front of authority, when they know that they have done something

5 wrong, they will say, Oh, I hit the door on the way out. But Your Honours

6 have to understand that in the room that night is the presence of, in the

7 very least, Kemo, the well-known, extremely violent Kemo.

8 The next day, who is given the task, the responsibility, to drive

9 the prisoners to the exchange going to Potocari? It's not the War

10 Presidency. It's Kemo. Kemo, who has just seen his superior commander

11 hit a prisoner, who has seen the prisoners bloodied. It's he who is given

12 the task to deal with the prisoners the next day. And so what happens on

13 the day of the exchange? Prisoners are taken out of the cell, two of the

14 prisoners make it to the truck, and that's Nedeljko Radic and Mr. Zikic.

15 The other two prisoners, Nevenko and Branko don't quite make it to the

16 truck prior to being taken off again. The Defence would have us believe

17 it was after they left the SUP but if we just look at the transcript at

18 3617 through 18 we'll see that they were taken back into the SUP where

19 Kemo was, and that's where the Defence admits they probably received one

20 of their worst beatings, probably one of their worst beatings. And the

21 next day we have one of those prisoners who succumbs to their injuries.

22 It's not part of our indictment. We are only talking about the cruel

23 treatment that inflected upon them.

24 And we have the visible injuries to Mr. Saric who the Defence says

25 maybe that happened on the day of the exchange. We are still in the SUP,

Page 16230

1 in the confines of the military part of the police. We have Kemo,

2 notorious, with these prisoners, and Naser Oric who saw them the night

3 before, know that is they have been beaten even warns Mr. Saric, "Don't

4 tell them I beat you. You know I only hit you once." Did not turn to

5 Kemo, did not say anything about, "I don't want anyone to touch these

6 prisoners until they get to where they are going, until they are

7 exchanged." He failed to prevent.

8 So, Your Honour, our worst case scenario, the first prison scene,

9 involves not just failure to investigate, further punish, punish Mirzet

10 Halilovic, but failure to prevent. The Prosecution has proved beyond a

11 reasonable doubt the cruel treatment, the death, superior authority, the

12 criminal acts of subordinates, be they in a direct chain of command, such

13 as Kemo, aiding and abetting by the guards. In essence we would submit to

14 you we have proven beyond a reasonable doubt counts 1 and 2 as they relate

15 to the prison scenario.

16 JUDGE AGIUS: While you're still on counts 1 and 2, you would have

17 certainly given attention to one of the submissions of the Defence in

18 relation to Kemo, and that is that Radic, if I'm not mistaken, repeatedly

19 refers not to Kemo Mehmedovic but to Kemo Ahmetovic. And this has been

20 made an issue by the Defence in their final brief. Do you have any

21 submissions on this regard?

22 MS. SELLERS: Yes, Your Honour. We would emphasise our

23 submissions that we placed in our reply. Mr. Radic did not know Kemo the

24 person. He should have said Kemo Mehmedovic. He said Kemo Ahmetovic but

25 he most often called him by the name that most people called him, Kemo

Page 16231

1 from Pale. As a matter of fact, Kemo from Pale was so notorious that,

2 like Madonna, he was just referred to as Kemo from Pale. Everyone knew

3 who that was.

4 Now, if -- if Mr. Radic had wanted to be less than truthful he

5 would have come here and said Kemo Mehmedovic I said that let me

6 straighten this up. He didn't know the last name. He wasn't from that

7 area. And there are situations when people are more known by their

8 nickname than by their actual name. I think technically, the Defence has

9 raised the issue as to the correct last name of Kemo. I do not think that

10 the Defence has raised or can succeed on its claim that Kemo from Pale was

11 the person or was not the person who beat the prisoners or killed

12 Mr. Kukic.

13 JUDGE AGIUS: But the point made by the Defence in their brief was

14 that during Radic's testimony, the possibility of him being mistaken about

15 the surname of Kemo was put to him and he repeatedly kept his position

16 that the Kemo that was there was not -- was Kemo Ahmetovic. In other

17 words, he never said - this is the submission of the Defence, obviously

18 I'm not commenting upon it, I'm just asking you to comment - he never

19 said, "Could be, it was Mehmedovic. I don't know. I didn't know the man

20 well. I may be mistaken in the name." When this was posited to him he

21 said, "No, it's Kemo Ahmetovic and I stick to that." And he stuck to

22 that.

23 MS. SELLERS: Yes, Your Honours, and he stuck to his mistake. He

24 didn't try to change it but he knew he was speaking about Kemo from Pale.

25 JUDGE AGIUS: That's your submission. Okay. Who is next now?

Page 16232

1 MS. SELLERS: Next Ms. Richardson will talk about the second

2 prison scenario.

3 JUDGE AGIUS: Ms. Richardson, we will be having a break in 20

4 minutes' time roughly, 18 minutes' time.

5 MS. RICHARDSON: Good morning to Your Honours.

6 JUDGE AGIUS: Good morning to you.

7 MS. RICHARDSON: Your Honours, this morning I will conduct the

8 Prosecution's submission on the prison scenario. We call it the second

9 prison scenario, as it happened in the early part of January 1993

10 towards -- sometime after March. And it's a scenario that also deals with

11 the counts of murder and cruel treatment.

12 I will not rehash to Your Honours the testimony of the witnesses

13 who were here and testified extensively about the treatment they received

14 in the prison. I will just briefly go over some points that I think that

15 the Trial Chamber may find helpful to be reminded of.

16 And the first submission that the Prosecution at this moment would

17 make to the Trial Chamber is that based on all of the evidence of the

18 witnesses, including the survivors, the male prisoners who survived the

19 prison ordeal in Srebrenica in 1993 and the female prisoners, that the

20 Prosecution proved beyond a reasonable doubt that murder and cruel

21 treatment did in fact occur in the police station, as well as the building

22 behind the municipal building that we commonly -- we have referred to

23 quite frequently in the Prosecution's case as the prison. These beatings,

24 Your Honour, were committed by the guards of the prison as well as

25 soldiers identified by witnesses who were familiar with certain

Page 16233

1 individuals as soldiers, as well as by other individuals who were

2 permitted to enter both the police station as well as the prison to what

3 we consider a brutal and savage beatings of the male prisoners and as a

4 result a number of them died in the prison. And I will go over that

5 shortly.

6 I would first like to discuss with you the first prison

7 scenario -- sorry, the police station in the second prison scenario, and

8 recount for you the testimony of Ilija Ivanovic who testified about being

9 beaten at the police station. And our Prosecution final brief deals with

10 this in paragraphs 412 as well as other areas and you may revisit it in

11 the transcript, 4004. And, of course, you may recall that Mr. Ivanovic

12 was here for some time and he testified extensively about the beatings he

13 received, the injuries that he received, some of which were permanent, and

14 he told Your Honours that he had been initiated into the police station by

15 being kicked, literally, in his back, into the cell where he banged his

16 head against a radiator rendering him unconscious. And you may recall

17 that he testified that when he arrived, Kostadin Popovic, Ratko Nikolic,

18 Milosav Milovanovic, aka Miko from Sase, Bogdan, and later Mile Trifunovic

19 also arrived. It's our submission, Your Honour, that all of the prisoners

20 were beaten based on his testimony and the testimony of Ratko Nikolic.

21 They were beaten during the time that they spent in the police station,

22 and as my colleague, Ms. Sellers, mentioned, it's the Prosecution's

23 position that the prisoners were under the prisoners were guarded by

24 military police, Your Honour, and I believe that a number of the document

25 that is the Prosecution has put forward bear that out. In addition to the

Page 16234

1 patrol reports, Prosecution Exhibit 16, the military police log, which

2 lists and details the Serb prisoners that were brought in, and logged the

3 information, personal details, et cetera. You may recall a number of the

4 witnesses verified the personal information that was found in both the

5 military log and other documents. Some of those documents were, we

6 believe, the product of the security organ headed by Hamed Salihovic.

7 I would also remind Your Honours of the testimony of 007, who

8 testified that he had arrived in Srebrenica from Cerska in the company of

9 Dragan Ilic, Jakov Dokic, Ande Radic [phoen], and Branko Sekulic came

10 later on. The Prosecution dealt with the documents which verified this

11 information, verified they were brought in by soldiers, and confirm and

12 corroborates our position that it was the military police based on their

13 patrol reports as well as the -- the military police log that they were in

14 charge of the prisoners. Naser Oric himself, during his interview,

15 testified that Hamed -- not testified, excuse me, but stated to our

16 investigators that Hamed Salihovic was charged with interrogating the

17 prisoners and taking notes from them, and the fact that the military

18 police were in charge of the prisoners. So there is no doubt, Your

19 Honour, based on the evidence presented during the Prosecution's case that

20 the guards were the military police at the police station.

21 You may also recall that the witnesses testified, both the

22 females, witnesses, Stana Stamenic, Milena Mitrovic, and the male

23 prisoners, Ande Radic as well, that after being detained at the military

24 police station they were then transferred to the prison.

25 Your Honour, these beatings continued at the prison. It's our

Page 16235












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

13 English transcripts.













Page 16236

1 submission that the guards at the prison, as well as soldiers, were

2 responsible for the beatings, and I will address that in a moment, but

3 there is no doubt, and I believe that the testimony of the witnesses as

4 well as the medical documentation, proved beyond a reasonable doubt that

5 they were in fact brutally beaten to the point at which Kostadin Popovic

6 died, Milisav Milanovic died, Dragan Ilic died, Branko Sekulic died, and

7 we also submit that Jakov Dokic died.

8 You may recall that Ratko Nikolic testified at length about being

9 beaten and you can refer to his testimony in the Prosecution's final brief

10 at paragraph 420. You may recall that he testified that the prisoners

11 were brought out of the cell one by one and beaten, not as the Defence

12 would like to suggest that these beatings took place in this dark cell

13 where they were unable to identify who beat them. Ilija Ivanovic also

14 confirmed to you that he was taken out to the reception area and I will

15 deal with that shortly whether we get to the issue of identification.

16 I would just like to segue for a moment to the identification of

17 the individuals doing the beatings. Ilija Ivanovic testified that he was

18 beaten by Dzemo Tihic who he believed was a soldier, and the Prosecution

19 would like to point out -- at least highlight one clarification with

20 respect to what was stated in the Prosecution's final brief regarding

21 Mr. Ilija Ivanovic's identification of Dzemo Tihic as the person who beat

22 him. The Prosecution in fact stated in paragraph 416 that Dzemo Tihic

23 broke the cheek bone of Ilija Ivanovic, which is what Mr. Ivanovic

24 testified to. But then there was an error made because we later stated in

25 436 that it was Ahmo Tihic. However, just looking at those two

Page 16237

1 paragraphs, Your Honour, it was clear that there was a mistake in the

2 name. The information is exactly the same. And we stand by what

3 Mr. Ilija Ivanovic said in paragraph 416, that it was Dzemo Tihic who he

4 knew prior to the war that broke his cheek bone.

5 Mr. Ivanovic also testified that the people who were beating the

6 prisoners wore camouflage uniforms and civilian clothing and the

7 combination. And we believe, Your Honour, that this description of the

8 guards, also corroborated by Branimir Mitrovic who spent a substantial

9 amount of time in the prison, who also testified that the guards he

10 observed beating the prisoners wore both civilian and military clothing,

11 camouflage uniforms, Stana Mitrovic, Stana Stamanovic [phoen] testified

12 that it was the soldiers who wore camouflage -- that the guards were

13 wearing camouflage uniform as well.

14 Your Honour, I submit to you that you should not be distracted by

15 the description of the guards and be wedded to what they were wearing to

16 make a determination as to who the guards were and whether they were in

17 fact beating the prisoners. The Prosecution submits that the guards wore

18 camouflage uniform and civilian uniform, and as a result, Your Honour,

19 some of the witnesses may have been confused by the fact that they were

20 beaten by someone wearing civilian uniform and may not have equated that

21 person with being -- either being a soldier or a guard, and that they may

22 have somehow deduced that the civilian clothing meant that it was a

23 civilian beating them, and we would suggest to Your Honours that that is

24 not the issue. The issue is that they were beaten by the guards who wore

25 both civilian and camouflage uniform and that is what Your Honour should

Page 16238

1 consider as determining who did the actual beating.

2 It's our position again that the guards.

3 JUDGE AGIUS: I didn't quite follow the argument, to be honest

4 with you because you are suggesting that we shouldn't allow ourselves to

5 be misguided this uniform aspect. At the same time you are using the

6 uniform aspect and Mitrovic's testimony precisely to indicate that the

7 guards were, at least when they were wearing a uniform, soldiers.

8 MS. RICHARDSON: Yes, Your Honour, I can clarify.

9 JUDGE AGIUS: The onus of proof lies with you. It's not a

10 question of suggesting this or suggesting that. What you have to prove --

11 MS. RICHARDSON: I can restate the argument, Your Honour. My

12 point referring to the testimony of Stana Stamenic was the fact that there

13 were a variety of description of the clothing worn by the guards. And so

14 if one witness stated that you -- that testified before Your Honours that

15 civilian clothing worn by someone who beat him, that that person may have

16 concluded that this was a civilian, should not determine the issue, Your

17 Honour, and that the issue should be doesn't matter what the individuals

18 were wearing, because we have heard a variety of descriptions, worn by the

19 guards that what in fact Your Honour should consider is the testimony of

20 individuals who stated that it was the guards who beat them and not

21 necessarily link the clothing to the -- link the clothing to determine

22 whether or not the beatings were conducted by guards or civilians. I

23 don't know if I'm clear on that and I can say it again.

24 JUDGE AGIUS: I think I can understand what you're saying but

25 Judge Eser wore like to have another question.

Page 16239

1 JUDGE ESER: Just with regard to the issue of uniforms, you spoke

2 of camouflage uniforms, civilian uniform, and civilian clothing. Now,

3 when you speak of civilian uniform, what do you mean?

4 MS. RICHARDSON: If I stated civilian uniform, Your Honour, I

5 misspoke. It's civilian clothing. Indeed, the witnesses stated that the

6 guards wore camouflage uniforms, civilian clothing, and sometimes it was a

7 mixed combination. And my submission is that if a witness stated that it

8 was -- that they were beaten by someone wearing civilian clothing, that

9 Your Honours not consider that as determining or concluding that it was a

10 civilian who beat the prisoners. It is our submission that the guards

11 wore a combination of clothing.

12 Your Honour, I'm being told that it may be close to a break.

13 JUDGE AGIUS: Perfect. Let's have a break now.

14 Do you prefer 25- or a 30-minute break, Ms. Richardson?

15 MS. RICHARDSON: A 30-minute break would be better, Your Honour.

16 JUDGE AGIUS: We will have a 30-minute break and take it up from

17 there. After you, who will take it up.

18 MS. SELLERS: Your Honour, Ms. Richardson will take the next

19 session, and then I will state and then Mr. Di Fazio.

20 JUDGE AGIUS: And you anticipate you will finish today?

21 MR. DI FAZIO: Easily.

22 JUDGE AGIUS: I see it that way. All right. Thank you

23 --- Recess taken at 10.30 a.m.

24 --- On resuming at 11.04 a.m.

25 JUDGE AGIUS: Yes, I recognise Ms. Sellers.

Page 16240

1 MS. SELLERS: Yes, Your Honour, I with would just like the record

2 to reflect that we are joined by co-counsel Jose Doria this session.

3 JUDGE AGIUS: Okay. Thank you.

4 So, Ms. Richardson.

5 MS. RICHARDSON: Thank you, Your Honour. Before the break,

6 Your Honour, I believe the Prosecution were on the submissions that the

7 guards who were the ones beating the prisoners in the prison, as testified

8 to by Ilija Ivanovic, Branko Mitrovic who said he saw them beat

9 Mr. Ivanovic and others in the hallway and that the guards were wearing

10 a -- mixed clothing, sometimes they had uniforms, sometimes they wore

11 civilian clothing. It's our submission, Your Honour, that the guards were

12 the military police, just a continuation of their responsibilities from

13 the first prison scenario, this time under Akif Kurcic [phoen] whom the

14 Prosecution referred to in their brief, and I believe we have pointed to

15 the documentation which supports his appointment by the Srebrenica armed

16 forces.

17 Your Honour, Mr. Ratko Nikolic -- as we move to an aspect of the

18 prison which involves the murders of five prisoners, you may recall

19 Mr. Ratko Nikolic testified that he remembers Kostadin Popovic dying, he

20 remembers that Kostadin Popovic's body was taken away but before it was

21 taken away it was wrapped in a blanket, a note was put in with his name

22 and information, and then that this body was taken away. The Defence

23 would have you believe that this is not correct and that

24 Mr. Kostadin Popovic's body was never actually in fact recovered as they

25 sought to challenge the credibility of Dr. Stankovic's report and the

Page 16241

1 identification of Mr. Kostadin Popovic's body by his son, Nikola Popovic.

2 The Prosecution submits that the testimony of Nikola Popovic, that he

3 identified his father's body, that in fact there was a note with the

4 information that it was the clothing he was wearing when he was captured

5 as well as the gold tooth that we all heard so much about during the

6 cross-examination was what led him to believe that that was his father.

7 If the Court examines Dr. Popovic's autopsy report that deals specifically

8 with the autopsy of Kostadin Popovic, the Court will see what the

9 Prosecution submits based on a series of pictures is a note that is

10 referred to in the autopsy report itself with the information as testified

11 to by Kostadin Popovic. And as the Court examines the pictures that are

12 attached to Dr. Stankovic's report, the Prosecution invites the Court to

13 examine the pictures very carefully as the Court may -- well, the

14 Prosecution believe -- may observe is a note that was taken a picture of.

15 Of course, you can not read it but clearly there is a piece of paper

16 there that is attached to the report as part what was recovered on the

17 body of Nikola -- of Vladko Sinin Popovic [phoen].

18 Your Honour, the death of Dragan Ilic, the Defence would have you

19 believe that there is not such evidence to support his death. However,

20 the Prosecution would refer Your Honours to the testimony of 007 -- of

21 confidential witness 007 who testified that Dragan Ilic died, Your Honour,

22 as he was laying next to him following a beating. The Prosecution submits

23 that this is more than sufficient evidence of the death of Dragan Ilic and

24 that no further corroboration is needed as suggested by the Defence.

25 The death of Milisav Milovanovic, the Prosecution also addressed

Page 16242

1 in paragraph 86 of the Prosecution's reply brief, as well as in the

2 Prosecution's final brief, as well as Ilija Ivanovic testified to his

3 death, transcript 4074, and you should also be referred to the transcript

4 of C-0007 at 4636. There is no doubt that Milisav Milovanovic is the Mico

5 referred to in the Prosecution's indictment as well as in documents from

6 the Srebrenica -- that came out of Srebrenica which refers to the

7 prisoners, although the Defence would have the Trial Chamber believe that

8 there was no identification of Mico, the Prosecution submit that there was

9 substantial identification of Mico as Milisav Milovanovic by Ilija

10 Ivanovic.

11 Your Honour, the death of Branko Sekulic was also addressed by the

12 Prosecution in its final brief and we refer you to paragraph 440 to 441

13 dealing with the evidence of his death.

14 Now, I would like to turn to the next Serb victim for which the

15 Prosecution alleged murder occurred in the prison of the Srebrenica -- in

16 the prison in Srebrenica in 1993, and that is Jakov Dokic. The Defence

17 would have Your Honours believe that since Jakov Dokic was last seen alive

18 by 007 in the prison in Srebrenica that in fact the Prosecution has not

19 proven beyond a reasonable doubt that Jakov Dokic died in Srebrenica

20 prison. It's the Prosecution's submission, Your Honour, that based on all

21 of the evidence the death of Jakov Dokic was proved circumstantially, and

22 I would refer you to documents which support the fact that he was brought

23 into the prison, Prosecution Exhibit 16 which details Jakov Dokic being

24 brought in from Cerska with other prisoners such as Dragan Ilic, Brado

25 Pajic [phoen], Ande Radic. And witnesses testified that Mr. Dokic was

Page 16243

1 imprisoned with them and these witnesses were Ilija Ivanovic as well as

2 Ande Radic, and I would refer to you Prosecution final brief 436 and 442.

3 Prosecution Exhibit 45 also lists Mr. Dokic as one of the

4 prisoners that was imprisoned in Srebrenica along with Kostadin Popovic,

5 and if we could just take a look at that exhibit, which is now in

6 Sanction, as you can see Mr. Dokic is listed as the first individual and

7 this document is dated the 9th of February 1993. Towards the end you see

8 the names of Kostadin Popovic and Bogdan Zivanovic and it is alleged that

9 these individuals were already deceased and that the bodies of these

10 individuals as well as the above individuals were listed for being

11 exchanged. And this was a document that the Prosecution believes was

12 created by the committee of mediation and exchange.

13 The Defence would have you believe that Prosecution Exhibit 19,

14 which lists Mr. Dokic as having died, if we could just have that

15 illustrated on the Sanction, that this document does not support -- or

16 does not provide proof that Jakov Dokic died in Srebrenica as this

17 document also lists Rado Pejic as having died and that that was not true.

18 I believe what Your Honour should keep in mind with respect to this

19 document more importantly is that with the exception of Rado Pejic all the

20 other information on this document is true. You heard from multiple

21 witnesses about the fact that they were in prison with these individuals,

22 you heard that they were present when certain individuals died, including

23 Branko Sekulic as well as Dragan Ilic. That information is correct. They

24 are listed as having died. Ratko Nikolic was captured and you heard from

25 Ratko Nikolic yourself as well as Mile Mitrovic. I will not go through

Page 16244

1 all of the names on the document, Your Honour, but suffice to say that the

2 majority of the information is in fact true. The fact that Rado Pejic did

3 not die, I believe, is something that the Court should take note of but

4 should rely more importantly on the overwhelming amount of information

5 that is true.

6 Your Honour, the Defence would make much to do about the fact that

7 Ilija Ivanovic said that he heard that Jakov Dokic was alive and

8 Mr. Ivanovic never said he saw him, he never even give us any information

9 about who he heard this from except for the off comment that he was alive

10 and had been thrown out of Srebrenica by the defendant. I submit to

11 Your Honours that this information was not correct, Mr. Ilija Ivanovic

12 was, I believe, a bit confused about that and based on the testimony of

13 the father of Jakov Dokic who said that he's -- hasn't seen his son since

14 1992. I submit to Your Honours that Jakov Dokic is not alive and well and

15 living in Bosnia or any other country but in fact he succumbed to his

16 injuries that he received in Srebrenica as a result of the brutal beating

17 at the hands of the guards who we submit were the military police.

18 And, Your Honour, we believe that the evidence of the deaths of

19 the other prisoners such as Dragan Ilic and Kostadin Popovic, Milisav

20 Milovanovic and Branko Sekulic proves, if not directly but

21 circumstantially that Jakov Dokic as well succumbed to the injuries he

22 received as a result of the beatings.

23 Your Honour, this Tribunal has recognised that that can be

24 inferred circumstantially from the evidence if the facts may unavoidably

25 lead to this conclusion, and it's the submission of the Prosecution that

Page 16245

1 the facts do -- does in fact lead to this conclusion. In the Kunarac

2 Trial Chamber, it was held that proof of death beyond a reasonable doubt,

3 that a person was -- murdered does not necessarily require proof that the

4 dead body of that person had been recovered. The fact of the victim's

5 death can be inferred circumstantially from all of the evidence presented

6 to the Trial Chamber.

7 The Trial Chamber also added, Your Honour, that a victim's death

8 may be established by circumstantial evidence provided that the only

9 reasonable inference is that the victim is dead as a result of the acts

10 and the omissions of the accused. I believe, Your Honour -- the

11 Prosecution is of the opinion, Your Honour, that this is the exact

12 scenario we have here, that based on all of the facts of the witnesses,

13 the brutal beatings of the prisoners, the ones that died thereafter, the

14 fact that Mr. Dokic was still in the prison when he was last seen as

15 confirmed by confidential witness 007, the Prosecution is of the opinion

16 that it need not have produced the body. Our Tribunal jurisprudence does

17 not require that. And that the Court -- that the Trial Chamber may come

18 to a conclusion based on all the evidence that has been presented that

19 this is the reasonable inference to be drawn.

20 With respect to the Cerska prisoners, Your Honour, the issue of

21 causation has also been raised with respect to the prisoners brought in

22 from Cerska and as Your Honour recalled, the witnesses were very candid in

23 that they had been beaten. You heard from Ande Radic -- Radovic, excuse

24 me, who stated that the male prisoners brought in with her who had been

25 beaten. Ivanovic also said, yes, they told him that they had been beaten.

Page 16246

1 There is no doubt and the Prosecution concedes that they were not treated

2 well in Cerska. However, Your Honour, as they were brought in Srebrenica,

3 their beatings continued and it was a result of these beatings,

4 Your Honour, that they died and not as a result of some opportunistic

5 disease associated with lice or malnutrition as the Defence seems to

6 contend. The Prosecution stands by its submission in the reply brief that

7 in fact, Your Honour, if that were the case, the women may have also died

8 as a result and there is no evidence of that, and it is most likely,

9 Your Honour, that they died. A reasonable inference can be drawn, logical

10 conclusion, and, as well, based on the direct evidence of witnesses who

11 stated that the Cerska prisoners looked even worse following their

12 beatings in Srebrenica.

13 You may recall Andja Radic said she went to see the prisoners and

14 she was surprised. She expressed that she was surprised that they looked

15 even worse. Ilija Ivanovic said that they looked even worse and he

16 particularly, upon being cross-examined on this issue, said, absolutely

17 not, they did not die from the Cerska -- from the wounds received from

18 Cerska and he refuted that suggestion placed by the Defence.

19 I believe the Prosecution is of the opinion that these witnesses

20 were credible, and that in fact that their deaths were caused by the

21 beatings. In any event, Your Honour, having said that, a very fundamental

22 principle in criminal law is that you take your victim as you find him.

23 That principle applies to this Tribunal, Your Honour, and is reflected in

24 our jurisprudence as well. And if the Court would refer to Prosecution

25 versus Delalic, paragraph 909, it is -- they quote this very well-known

Page 16247

1 principle. "It is a well-recognised legal principle that a wrongdoer must

2 take the victim as he finds him. Thus if a perpetrator by his acts

3 shortened the life of his victim it is legally relevant that the victim

4 may have died shortly thereafter from another cause." To establish

5 criminal liability in situations where there are pre-existing physical

6 conditions which would cause the victim's death, therefore, it is only

7 necessary to establish that the accused's conduct contributed to the death

8 of the victim. Therefore, the fact, Your Honour, that the conditions in

9 Srebrenica were appalling and that the victims may have been suffering

10 from other complaints such as lice simply does not nullify the action on

11 the part of the subordinates of Naser Oric. And those subordinates being

12 the guards, soldiers and others, the guards being those of the military

13 police.

14 Your Honour, I believe we have covered significantly and

15 sufficiently the cruel treatment that was meted out to the prisoners, and

16 we stand by the evidence that was presented with respect to Stanko

17 Mitrovic, called Cane, and that evidence was presented by Ilija Ivanovic,

18 transcript 4068 to 4069, who testified that Stanko called Cane was beaten

19 by the soldiers and that he was disabled and he was beaten specifically on

20 his hands and legs. Those limbs. They would target those limbs,

21 Your Honour.

22 We also heard about the situation where the beard of confidential

23 witness 007 was set on fire. You heard Mr. Ivanovic testify to that and

24 you heard the witness himself who suffered this horrific act testify to it

25 as well. We believe that the evidence is sufficient with respect to the

Page 16248

1 cruel treatment and just briefly with respect to Milo -- Mile Trivunovic

2 [phoen] whose granddaughter testified that she was present in the prison,

3 had heard the screams of the prisoners and her grandfather moaning, and

4 that she had seen her grandfather, he was black and blue, that he died

5 shortly after being released and exchanged from the Srebrenica prison.

6 Your Honour, we believe that this evidence is sufficient to sustain the

7 charge of cruel treatment on behalf of those prisoners.

8 Your Honour, with respect to the signs of beating which we believe

9 leads a little bit over into the identification issue, the prisoners were

10 very clear that they had visible signs of bleeding, of being beaten, blood

11 on the floor, swollen eyes, et cetera, and that can be confirmed through

12 the testimony of confidential witness 007. You also heard from Mitrovic,

13 and he said when he was in the hall way he observed the prisoners and they

14 bore the signs of having been beaten. The Defence challenged the witness

15 Branimir Mitrovic, challenged his recollection of the fact on the basis

16 that he was seven years old at the time. Your Honour, I submit to you

17 that indeed a seven year old remembering having played with a specific

18 playmate at the age of seven or what kind of game he played at seven may

19 not be something he can recollect 12 years later. But a seven year old,

20 Your Honour, who observed prisoners being beaten on a daily basis during

21 the time that he was in Srebrenica is not something a seven year old or

22 anyone else is likely to forget, Your Honour. And in fact, when his

23 recollection was challenged by the Defence, he was adamant that he

24 remembered the circumstances. And he remembered them, Your Honour, the

25 Prosecution submits, because they were unique and people do remember

Page 16249

1 incidents because of that, because it's outside of their every day normal

2 experience. And that is true, Your Honour, with respect to Branimir

3 Mitrovic.

4 The lighting conditions, you heard confidential Witness 007 and

5 other witnesses talked about the fact that they were beaten in a cell and,

6 yes, it was dark but they also testified that there was light used by

7 lighting bits -- by the attackers using lighting bits of paper that

8 created light and you heard this from more than one witness, Your Honour,

9 and I submit to you that this is not a fact that would have been

10 fabricated.

11 Your Honour, Naser Oric, the Prosecution has alleged, visited the

12 prison, as did his deputy, Zulfo Tursunovic. The Prosecution submits that

13 the evidence of Ilija Ivanovic is credible and this is evidence,

14 Your Honour, that was challenged by the Defence repeatedly regarding the

15 witness's identification of Naser Oric as well as the circumstances under

16 which he was beaten, followed by Naser Oric -- the ability -- followed by

17 the exact circumstances, Your Honour, of who was in the room when he was

18 taken to the reception area. You may recall that Mr. Ivanovic said he had

19 been beaten, he was taken to this room, and you recall he -- recalled that

20 he testified that he was familiar with Ahmo Tihic, whom he recognised. He

21 also testified that he was familiar with Zulfo Tursunovic, and he said

22 Mandza was also present in the room. And he said that there was a man

23 that he later recognised as Naser Oric, and I would at this point, since

24 there has been so much discussion on this issue, I would like to refer to

25 the transcript where Mr. Ilija Ivanovic testified to these events, and

Page 16250

1 that is transcript 4050, line 20.

2 Question: "Did there come a point in time where you were removed

3 from the cell and taken to another room in this building to be

4 questioned?"

5 Answer: "Yes, I remember once, can't say whether it was more than

6 that. They took me to the reception room where they had the soldiers who

7 watched us. I was taken out of the room and taken to the reception room.

8 I recognised Ismet. He was a person I noticed, also Tihic, Ahmo Tihic,

9 and Ismet he referred to is Ismet Odic. I found out who the others were

10 later on and their names. There were five persons there for sure, up to

11 seven. I'm not sure if this was recorded or not but it's not important.

12 I saw one man, a bearded, dark, a bearded man, dark. I can't say that I

13 knew Naser Oric but when we returned to the cell after this brief

14 interrogation the soldiers told me, did you see our Dela, Naser? Some of

15 them said Naser, some of them said, the boss. I didn't know the man

16 though. I can't say it was that man."

17 Later on, Your Honour, you may recall Mr. Ivanovic testified about

18 having seen, having recognised this person from the reception room, from

19 that event. Transcript 4055, it was a result of -- I'll rephrase. Your

20 Honour put this question to the witness, line 11:

21 "So if someone presented to you with a person and told you this

22 is Naser Oric, you wouldn't have been able to confirm that because you did

23 not know the man?"

24 The witness responded, Mr. Ilija Ivanovic responded: "I'm not

25 even saying that I did see him on TV several times later but I can't say

Page 16251

1 something that is just not true. I didn't know him at the time. Because

2 I had known him he would have been very easy for me to identify then."

3 Judge Agius stated: "So and who did you see later on TV several

4 times?"

5 The witness responded: "No, what I'm saying is that although I

6 saw him on TV several times I do not want to add something that I didn't

7 actually know at the time. That's what I'm trying to say."

8 Judge Agius: "But are you telling us that on TV later on you saw

9 Naser Oric several times?"

10 The witness answered: "Yes, in the newspapers and on TV."

11 Your Honour, the Defence may seek to twist and turn that bit of

12 evidence and testimony and on cross-examine the issue was revisited. But

13 the witness was clear. He was honest. He didn't know Naser Oric the day

14 he saw him in the reception room. He was clear. He saw him, he

15 recognised him later on from television and the newspaper.

16 The others, Your Honour, such as Zulfo Tursunovic, visited the

17 prison and the witness recalled that as well. Mandic was someone who was

18 present at the exchange. Ratko Nikolic testified that he recognised Naser

19 Oric and just bringing you back a bit to the testimony of Ratko Nikolic

20 who said that on his way to Srebrenica, sitting in the van was Zulfo

21 Tursunovic who he later saw on a daily basis visiting the prison. And he

22 testified that the person in the van he believed to be Naser Oric because

23 of how they were treating him and how they referred to him. And you can

24 refer to Prosecution's response paragraph 90 on that issue. He also

25 testified that he later recognised there person from the newspaper.

Page 16252

1 Stana Stamenic testified Naser Oric came to the cell and actually

2 spoke to her and introduced himself, and you may find that reference to

3 this conversation that he had with her in transcript 6618 to 620, and 6672

4 to 6673. Naser Oric told her he was the commander. Zulfo also visited

5 the prison, she testified, and introduced himself and asked whether they

6 had been mistreated. Milena Mitrovic, I'm sure we all recall that

7 testimony because Ms. Mitrovic seemed to be confused about the last name

8 of the individual and she summed up that she recalled the last name to be

9 Kolic. The Prosecution submits that in fact that last name was Naser Oric

10 that was told to her and her memory failed her on that regard and she said

11 Kolic. But that's what she remembered and she was honest about that.

12 When the Defence sought to cross-examine her on where she saw this

13 individual, after a series of questions, it was clear that she saw him in

14 the prison and not in the police station as the Defence may have -- or as

15 the Defence was trying to elicit from her, the Prosecution believes.

16 Your Honour, the Prosecution -- Naser Oric had knowledge of

17 prisoners and we believe that that has been briefed in our closing brief

18 as well as our reply brief. But if we could just play a bit of his

19 interview regarding the matter of prisoners and Zulfo Tursunovic.

20 [Videotape played]

21 JUDGE AGIUS: For the record -- we are playing from 328 or 329,

22 Ms. --

23 MS. RICHARDSON: We are playing from 328, we're at transcript 13,

24 pages 7 to 8.

25 JUDGE AGIUS: The video starts at 2 hours 33 minutes 06.5 seconds.

Page 16253

1 [Videotape played]

2 I have just one thing. Yesterday you asked me if there was

3 military court. It's [indiscernible] after Zalazje. I note the Court was

4 formed. I found this way -- I found this out yesterday in the same way

5 through contacting my fighters after the demonstration outside. I'm not a

6 computer. I can't remember all of this stuff. They told me -- they told

7 me and I remembered later on that Zulfo Tursunovic was at the military

8 court as some kind of military judge. The reason that we appointed him is

9 that he was a person who had spent a lot of time in prison and who knows

10 law better than some -- some lawyers with degrees. Of course, he doesn't

11 know all the various rules and regulations but he knows how to behave like

12 a [indiscernible]. He knows how to balance or weigh a situation because

13 before the war, he had killed two [indiscernible] with a knife. This was

14 some kind of bar fight where they attacked him and then he had no choice

15 he -- he was -- he was sentenced to 20 years' imprisonment and he served

16 14 and a half and then he was lucky because the war started. I

17 [indiscernible] after him there is -- another member of the military court

18 was Ahmo Tihic. That is the commander of the Biljeg TO. The third was

19 Atif Krdjic that is Atif, A-t-i-f, Krdjic, K-r-d-j-i-c, and the third was

20 Hamed Salihovic, that's Hamed, H-a-m-e-d. These are the ones that I

21 succeeded in finding out who they was. Maybe there were some others but

22 these are the ones that I know about. Thank you. Atif Krdjic, excuse me,

23 was an active policeman in Srebrenica. Hamed Salihovic was the head of

24 the police in Srebrenica and was also a military security officer."

25 JUDGE AGIUS: All right. For the record, the tape is stopped at 2

Page 16254

1 hours 36 minutes 49.6 seconds.

2 MS. RICHARDSON: Thank you, Your Honour.

3 I believe that information from Naser Oric himself corroborates

4 what witnesses have testified to, and that is Zulfo Tursunovic visited the

5 prison, and certainly does explain his presence there, as he was -- Zulfo

6 Tursunovic had been a military -- had been a military judge. It does make

7 one pause for the reason and sort of seem to be amusing that he was

8 appointed because he had been in prison but nonetheless, this does in

9 fact, the Prosecution submit, corroborates the fact that Zulfo Tursunovic

10 was in the prison as well as corroborating other facts such as Ahmo Tihic

11 being there as well, and Hamed Salihovic who he says was the military

12 security officer.

13 Your Honour, I would suggest to Your Honours that you take a look

14 at the Prosecution's brief, as well as the reply, because we do detail

15 more instances where Naser Oric talks about Hamed Salihovic as well as

16 Zulfo Tursunovic, and their relationship to the prisoners.

17 JUDGE AGIUS: I want to put your mind at rest, Ms. Richardson, we

18 already have, at least twice.

19 MS. RICHARDSON: I do appreciate that, Your Honour. Your Honour,

20 the identification issue, as posited by the Defence, as briefed in their

21 closing brief is one that I would like to address the Trial Chamber at

22 this point. The Prosecution is of -- the Prosecution submits that the

23 evidence regarding the identification or recall, as we would refer to it,

24 as the recognition of Naser Oric, was sufficient for the Court to find

25 beyond a reasonable doubt that he was in the prison, that he did observe

Page 16255

1 the physical appearance of the prisoners, and as such he was put on actual

2 notice and inquiry notice and had a duty to prevent and punish.

3 It's the Prosecution's position that the Defence has replied --

4 erroneously sought support in the Tribunal jurisprudence as well as

5 Turnbull, which I will address in a moment. The Defence states that the

6 law on identification evidence does not allow a finding that Oric was

7 identified at the crime site, and we submit that that is incorrect. It's

8 The Prosecution's position that the jurisprudence referred to by the

9 Defence does not support this claim at all, in particular the evidence in

10 Oric -- in the case of Naser Oric is very different in nature from the

11 case cited by the Defence. And we submit that it's altogether much safer,

12 facts, and facts and circumstances in this case than in the cases referred

13 to by the Defence.

14 In both the detention facility, that being the prison, as well as

15 the prison, Your Honours, prisoners confirm either that they knew Naser

16 Oric before in the case of Mrs. Sarac who told Mr. Radic, and in the case

17 in the second scenario where you have this Stana informing Milena Mitrovic

18 that that's Naser Oric and we have Naser Oric introducing himself to Stana

19 Stamenic. We have Ilija Ivanovic recognising Naser Oric later on. We

20 submit that these facts are different in nature from that raised by the

21 Defence.

22 Distinguishing the jurisprudence referred to by the Defence, the

23 Prosecution will draw the Court's attention to Kupreskic where in

24 Kupreskic the eyewitness identification was an issue with regard to two

25 distinct incidents. In both incidents the conviction hinged upon the

Page 16256

1 testimony of a single eyewitness. In one case the Appeals Chamber

2 acquitted and in the second it upheld the conviction for both Kupreskic

3 incidents the evidence was significantly weaker than in this case,

4 Your Honour, the Prosecution submits. With regard to the first of these

5 incidents, the only evidence placing the Kupreskic brothers at the crime

6 scene was the testimony of Witness H. Witness H, whose testimony was

7 unsafe for a large number of reasons including prior inconsistent

8 testimony -- statements of the witness and contradictions between the

9 statement of the witness and another eyewitness. The other eyewitness

10 raised the distinct possibility that witness H identification of her

11 neighbours in the attack had been a gradual development in months

12 following the April 1993 atrocity.

13 Now, with regard to the second incident in Kupreskic, this was the

14 only incident placing Josipovic at the precise crime site and the

15 witness's testimony was found sufficient on trial and on appeal,

16 Your Honour. This finding was made despite discrepancies between -- in

17 the witness's testimony itself. She testified that she had -- she had

18 testified to have seen together with Josipovic two others and who were

19 found to have been elsewhere at the time of the incident. Apart from this

20 testimony, the only other factor -- the only other factor the appeals

21 found in favour of conviction was the testimony was -- found that this

22 testimony was generally corroborated by a witness who had seen Jusipovic

23 attacking in the vicinity but not on the crime scene. The evidentiary

24 situation, Your Honour, in Oric is not comparable to the situation in

25 Kupreskic. In Kupreskic it was only one eyewitness who existed for each

Page 16257

1 incident. By contrast Naser Oric had been identified in both detention

2 facilities by a number of witnesses, many of whom had an opportunity, and

3 we submit that this was not a fleeting glance as suggested but an

4 opportunity, a fair amount of time, to recognise him later on. And we

5 have also talked about the fact that he was known to a particular witness,

6 Mr. Sarac.

7 The identification in the present case again was not based on

8 fleeting glances, obstructing views or viewing in the dark because as you

9 recall, Mr. Ivanovic testified that he saw Naser Oric in the reception

10 room area. Stanic Ivanovic said he came into the cell and she had a good

11 view of him. And Your Honour it is based on mutually corroborated

12 evidence from all of the witnesses who had repeated opportunities to

13 observe Naser Oric that the Prosecution submits was sufficient for a

14 finding that Naser Oric was in the prison and reliable.

15 In sum, Your Honour, Kupreskic cannot possibly support the

16 Defence's position that Naser Oric was identified as unsafe. In other

17 words, Your Honour, this is not the same situation. In this case the

18 finding of the Court of the Trial Chamber would not be unsafe. In

19 Kunarac, the decision in Kunarac referred to by the Defence, explicitly

20 clarifies that all comments to which the Defence refers are made for the

21 case that the evidence end quote the evidence of the witness is the only

22 evidence given in relation to that fact --

23 Your Honour, the Defence also erroneously --

24 JUDGE AGIUS: Ms. Richardson, may I kindly ask you to slow down?

25 Thank you.

Page 16258

1 MS. RICHARDSON: Yes, Your Honour, I do apologise. The Defence

2 uses the case of Turnbull, and Your Honours were provided copies of this

3 decision, erroneously again, that they -- that the Defence has --

4 JUDGE AGIUS: Sorry to interrupt.

5 MS. RICHARDSON: No problem, Your Honour. The Defence has relied

6 on Turnbull to support its position that the identification is unreliable

7 and, again, Your Honour, the same holds true with regards to the

8 distinction in the cases. The decision of the Court of appeals of England

9 and Wales in Turnbull, the Prosecution submits, if anything it supports

10 the Prosecution's position rather than the Defence. The most relevant

11 finding in Turnbull was that if apart from the poor identification

12 evidence there is other evidence which goes to support the correctness of

13 the identification, a conviction may be entered. Turnbull decided three

14 appeals based on identification. It upheld one conviction and reversed

15 two. Turnbull's conviction was upheld despite the only identification

16 witness only briefly saw Turnbull's face. The verdict could not be said

17 to be unsafe because the identification witness already knew Turnbull from

18 previous times. And that there was some corroboration for this

19 identification.

20 The same holds true, Your Honour, in this case, that the Stana

21 pointed out Naser Oric to the Milena Mitrovic and Mr. Sarac testified that

22 he knew Mr. Oric from before and he conveyed this information to

23 Mr. Radic. The other two cases referred to in the Turnbull

24 identification -- the other two identifications which were found to be

25 unreliable because of very poor identification evidence, Your Honour. In

Page 16259

1 one case, both witnesses did not know the assailant before the attack.

2 The attack itself during which the assailant could be observed was over a

3 few moments. The crime scene was a dark alley. A different witness

4 identified a very different looking person and the description of the

5 assailants originally given by the witness were contradictory. In the

6 other case the persons were seen by the witness wore a Balaclava. One

7 witness only saw him from the rear and the other one had given before the

8 identification parade a description which in no way fit the description of

9 the appellant or the accused. In both cases -- there was no further

10 supporting evidence.

11 Your Honour, again, the evidence in this present case is

12 different. Consistent, mutually corroborative evidence about Naser Oric

13 being present in the detention facilities even introducing himself by name

14 has been provided in both prison scenarios and provided a number of

15 witnesses had an opportunity, more than one, to see and observe him.

16 The Defence -- the Prosecution would like to just make one small

17 point with regards to the Defence's reliance on the use of the Devnis

18 [phoen] report. The Defence claims that the Devnis report defines

19 recognition evidence as seeing someone the witness already knows.

20 This is wrong, Your Honour, the Prosecution submits. The report

21 in paragraph 4.1 defines recognition as depending upon the human ability

22 to memorise a face, if the memory is clear enough, it will enable a

23 positive identification to be made." Thus the report's distinction

24 between recognition and resemblance evidence simply distinguishes the

25 quality -- simply distinguishes the quality of the witness's memory.

Page 16260

1 Your Honour, the Prosecution would also highlight additional

2 jurisprudence to the Court regarding identification that has already been

3 established in our jurisprudence. We invite the Court to visit the

4 Florenzija [phoen] Appeals Chamber judgement and there the Trial Chamber

5 upheld the trial -- the -- here the Appeals Chamber upheld the Trial

6 Chamber's treatment of witness identification evidence. There, the

7 witness stated that she recognised the accused from television. She also

8 identified the accused's voice as belonging to a person she encountered at

9 two different locations. This evidence was in fact the only evidence that

10 placed the accused at one of the locations. However, it was not the only

11 evidence from this witness, nor from other witnesses, that identify the

12 accused. The witness also testified that other people addressed the

13 accused using his name in her presence. The same is true. Mr. Ilija

14 Ivanovic, as I stated prior, came back from the receptionist room and the

15 guards were asking him, "Did you see Naser?" "Did you see our boss?"

16 Excuse me. "Did you see our Naser and boss?"

17 The witness also testified that her encounter with the accused

18 was -- excuse me I'll restate that. Her identification of the person she

19 saw on television, she recall, was -- her identification was of the person

20 she saw on television, Your Honour, not of the person she physically

21 encountered. The Trial Chamber, however, accepted the witness's

22 recognition but the person she saw on television was indeed the person she

23 physically encountered, and she noted that he had put on weight. The

24 Appeals Chamber held that this treatment of the witness's evidence,

25 together with evidence of other identification evidence, made it

Page 16261

1 reasonable for the Trial Chamber to have been satisfied that the accused

2 had been identified.

3 JUDGE AGIUS: What's the date of the Furundzija Appeals Chamber

4 decision you're referring to, please?

5 MS. RICHARDSON: Your Honour, I do apologise.

6 JUDGE AGIUS: Is it the final Appeals Chamber decision in that

7 case?

8 MS. RICHARDSON: Your Honour, it's the 21st July 2000.

9 JUDGE AGIUS: Thank you.

10 MS. RICHARDSON: Your Honour, I would just close on this issue

11 with regards to the findings of the Limaj Trial Chamber, and that is

12 paragraph 20, and I would quote: "Even though each visual identification

13 and each other relevant piece of evidence viewed in isolation may not be

14 sufficient to satisfy the obligation of -- on the Prosecution it is the

15 cumulative effect of the evidence, i.e. the totality of the evidence

16 bearing on the identification of the accused which must be weighed to

17 determine whether the Prosecution has proved beyond a reasonable doubt

18 that each accused is a perpetrator, as alleged.

19 Your Honour, the Prosecution submits that the Trial Chamber could

20 consider the identification evidence in this case cumulatively, together

21 with the evidence of the statements and all of the evidence that we've

22 presented with respect to witnesses who recognised him, either knowing him

23 before or recognising him later on at -- on television.

24 JUDGE AGIUS: Again, date of this Limaj decision, please?

25 MS. RICHARDSON: Yes, Your Honour. Your Honour, it's the Limaj

Page 16262

1 trial judgement and it's a very recent judgement.

2 JUDGE AGIUS: I know it's recent.

3 MS. RICHARDSON: We will get back to you with the date and we do

4 apologise for not having it beforehand.

5 Your Honour, that would essentially conclude my submission with

6 respect to the identification issue. Recognition, identification, is, as

7 knowledged by the Defence, the best form of visual identification, and

8 recognition evidence has indeed been the basis of the identification of

9 Naser Oric by the Prosecution witnesses, Your Honour.

10 I would now like to continue on with my submission regarding Naser

11 Oric's knowledge of prisoners. You may recall that Mr. Glikic testified

12 that Naser Oric was at one of the exchanges and the exchange where

13 prisoners were exchanged and the Prosecution submit that the --

14 particularly the men were visibly beaten. You may also recall the

15 evidence where Naser Oric had taken out Sarac to negotiate with the Serb

16 authorities regarding the exchange of Serb prisoners as Ms. Sellers

17 referred to earlier. And I would just like to remind the Trial Chamber of

18 the evidence of Slavoljub Filipovic and Mr. Okanovic who both testified

19 that they -- specifically with regard to Mr. Filipovic who said that he

20 recognised the voice of Naser Oric because he knew him from before and he

21 spoke to him over the radio. And the Prosecution has extensively dealt

22 with this in their Prosecution -- in the Prosecution's final brief and I

23 would like to draw the Court's attention to Mr. Okanovic who recalls the

24 code name of Mr. Naser Oric being Gazda and that he knew that because of

25 what the other -- how he was -- how Gazda was treated when he was on the

Page 16263

1 radio itself.

2 And this is -- that this Gazda was Naser Oric based on what the

3 other operators had said. And this, Your Honour, we believe -- we

4 believe, is additional evidence of Naser Oric's knowledge of prisoners, as

5 he talked about, discussed the wife of Filipovic and the capture of the

6 children.

7 Your Honour, I would like to move next to the exchange involving

8 who the Prosecution submits was confidential witness 007 and there has

9 been a lot from both sides on this issue regarding who was present at the

10 exchange and how it actually proceeded. The Prosecution stands by its

11 position in the Prosecution's closing brief, and also in the Prosecution's

12 reply brief.

13 Now, the Defence has indicated that Mr. Tucker, Colonel Tucker,

14 should not be relied upon as having been present when Naser Oric brought

15 out this prisoner and released him to the UNPROFOR individuals, but

16 Colonel Tucker, and I believe that -- we sufficiently addressed this in

17 the Prosecution's brief, remember very well that incident that he was,

18 General Morillon was approached by Naser Oric who came along in a black

19 Mercedes and had taken them to a place where C-007, who we believe any

20 way, is C-007, Colonel Tucker didn't know who this person was but brought

21 out this Serb prisoner to them.

22 Now, the Prosecution concedes that Colonel Tucker may not have

23 been correct in some aspects of that testimony, but the Prosecution stands

24 by Colonel Tucker's testimony about what was important at the time, and

25 what we believe is the most relevant portion of that evidence is that

Page 16264

1 Naser Oric was the one who brought the prisoner out. Now, Colonel Tucker

2 mentioned, testified - excuse me - that there may have been some bandages

3 on the individual and as the videotape was shown, taken by Tony Birtley of

4 the exchange itself, it was evident at least from the portion of the video

5 we saw, that the prisoner did not have bandages on him, at least from what

6 we were able to see.

7 But I would take Your Honour to the portion of the testimony with

8 respect to Colonel Tucker, and I think from reading his testimony it will

9 be clear, and I'm not going to read it out because I think we are probably

10 going to start running short on time. But Colonel Tucker did mention --

11 said he -- "I think" - I'm quoting from 6178 - "I think he had some

12 bandages on his face. It was difficult to tell because his face was so

13 dark and he had" -- "his face was so dark and he had obviously not shaved,

14 but I think he had bandages as well."

15 To Judge Brydensholt's question: "On the face, on the head? Do

16 you recall anything about this? Where it was?"

17 Colonel Tucker answered, "I can't remember where on his body the

18 bandages were. What I do remember is that for some reason we had soldiers

19 pull up his shirt or whatever, to look at his stomach because there was

20 some -- I can't remember the reason why we looked at his stomach I don't

21 recall the reason why." The Defence -- thank you. And, Your Honour, just

22 would like to give the Court the information Your Honours sought before

23 about the Limaj judgement, and that is November 30th 2005.

24 Your Honour, Colonel Tucker may have been as well mistaken about

25 who was present and we saw Colonel Dudley on the tape. Unfortunately the

Page 16265

1 tape was not shown to Colonel Tucker. It may have refreshed his memory

2 somewhat about who was present but he said -- Colonel Dudley was there,

3 but at first he certainly intimated that he wasn't sure about all of the

4 individuals present and upon being questioned again and again, he said,

5 well, he's pretty sure that Dudley was present -- was not present, excuse

6 me.

7 In any event, Your Honour, the Prosecution would submit that

8 Colonel Tucker had significant more information about this prisoner than

9 Dudley or Birtley. In fact, Birtley did not take the whole incident, as

10 the Defence would have you believe, and I would refer to transcript 15124

11 and this is on questioning on examination-in-chief to Mr. Birtley.

12 Now finally a moving question -- now finally I'm moving on to two

13 more topics, do you remember being present when a Serb prisoner or

14 detainee was released?

15 The answer: "Yes, I do."

16 "And did you film at least part of that scene?"

17 Answer: "Yes, I did."

18 I would emphasise, Your Honour, the question was, "did you film at

19 least part of the scene?"

20 The answer was: "Yes, I did."

21 Next question: "And do you remember how you came to be at the

22 scene, the handover?"

23 "I remember exactly. There was so much going -- I don't --

24 excuse me, I can't remember exactly. There was so much going on. I think

25 I came across it by accident or I was told. I can't say with any degree

Page 16266

1 of certainty."

2 And that was Tony Birtley's testimony about the taping of the

3 events. The Prosecution would submit to you, Your Honour, that in fact

4 because Tony Birtley had only sudden appeared accidently that he did not

5 see Naser Oric and that Naser Oric may very well have left by the time

6 Tony Birtley began filming.

7 And with respect to Colonel Dudley, who was not actively involved

8 in the exchange, nor in any type of communication with Naser Oric, said

9 Naser Oric was not present. Even though he's never met Naser Oric, he

10 seemed to have wanted to supply the Trial Chamber with what the

11 Prosecution submits is a little bit more information that -- than he had

12 actual knowledge of, and he himself said that he was not part of the

13 initial exchange, he was standing with the UNPROFOR soldiers and they said

14 they needed help with a stretcher. Your Honour, again we submit that

15 Colonel Dudley does not have the knowledge that he was -- that Tucker had,

16 of the events, and we submit that it's quite possible that Dudley also

17 appeared after the prisoner -- after Naser Oric had possibly left.

18 Now, I would, in addition to what Colonel Tucker said about the

19 exchange of the prisoner -- I would like to draw your attention to the

20 portion of his testimony where he talked about the fact that Naser Oric

21 knew about the additional -- that there were two additional prisoners and

22 he referred to his diary, and I would point to -- lead the court to trial

23 transcript 5929, after just having -- reading out information on his

24 diary, Colonel Tucker said "We released" -- he's quoting, "We released a

25 wounded Serb prisoner. We know of two more Serbs held by Bosnian forces

Page 16267












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

13 English transcripts.













Page 16268

1 in Srebrenica who's commanding -- whose commander is trying to get

2 released." And he's reading a portion of his diary about that information

3 that was placed in it.

4 My answer to the question of what else was in his diary, he

5 said, "My recollection is that Colonel Oric said that he had two more

6 prisoners. General Morillon was pressing him, 'How many prisoners do you

7 have? Don't hold on to them. Release them.' Then he said that he had

8 two more but that they were common criminals and nothing to do with

9 fighting."

10 Question: "And when had that conversation taken place to the best

11 of your recollection?"

12 "That" -- answer: "That morning."

13 Question: "So when the prisoner was brought out?"

14 Answer: "Bear in mind that it was General Morillon who told me

15 this. I did not hear this myself. It was General Morillon who told me

16 that he had been told that this morning."

17 But, Your Honour, clearly this was significant enough for

18 Colonel Tucker to put it in -- for it to be documented and it is

19 corroborative of confidential witness 007 who said: "He left two

20 prisoners back, who remained there, and those two prisoners was Jakov

21 Dokic and a man from Zenica."

22 Your Honour, we believe that Colonel Tucker's diary supports and

23 corroborates that there were two prisoners left, and Naser Oric knew about

24 them.

25 I am drawing close to the end of my submission on this issue.

Page 16269

1 Just a moment, Your Honour.

2 [Prosecution counsel confer]

3 MS. RICHARDSON: Your Honour, I'm going to wrap up this segment of

4 my submission.

5 JUDGE AGIUS: You're trying to.

6 MS. RICHARDSON: Yes, Your Honour. I'm quite consistent in my

7 lengthy submissions over the time but I've appeared before Your Honour.

8 I'm trying to wrap it up.

9 The Prosecution submits that Naser Oric -- that the Prosecution --

10 that Naser Oric failed to take reasonable -- failed to take the necessary

11 and reasonable measures to prevent the commission of the crime or punish

12 the perpetrators, and that he had superior authority under 7(3). And

13 you've heard from my colleague, Ms. Sellers, about that

14 superior-subordinate relationship. The Prosecution submits that Naser

15 Oric knew or had reason to know that a crime had been or was about to be

16 committed and that he failed to take the necessary and reasonable measures

17 to prevent those crimes from taking place, and that's with respect to the

18 murders in the prison and the cruel treatment.

19 In accordance with the Celebici judgement, trial judgement, that

20 is, which states that the superior must have had information that would

21 provide -- had actual knowledge or inquiry notice of the offence committed

22 by subordinates. And this is not new jurisprudence, Your Honour, it's

23 been said many times of 7(3) liability. And this knowledge, Your Honour,

24 the requirement of knowledge can be proven direct or circumstantially and

25 I don't need to seem to lecture Your Honours on the law, but I would only

Page 16270

1 add that the actual knowledge we believe was proved beyond a reasonable

2 doubt that Naser Oric in fact had direct knowledge and knew that the

3 prisoners had -- were subjected to cruel treatment and had been beaten and

4 failed to prevent further beatings as well as the deaths of the prisoners.

5 We believe it was proven directly, based on the testimony of Ivanovic who

6 said that the beatings continued after Naser Oric saw his condition. We

7 believe that circumstantially, based on all of the evidence, I should say

8 we believe that this is true of -- with respect to the actual knowledge

9 because of the direct evidence of Mr. Sarac who said that Naser Oric took

10 him out to engage in this radio discussion about exchanges. We believe

11 that Naser Oric was in the prison and observed the condition of the

12 prisoners in both scenarios and failed to take any action to prevent it.

13 And certainly, Your Honour, the evidence at a minimum proves

14 circumstantially that he had actual knowledge of the conditions in both

15 scenarios. We would also conclude that he had inquiry notice as well, and

16 that his deputy Zulfo Tursunovic was in the prison, and that he had reason

17 to know or should have been put on notice that there was a need for

18 further investigation based on what happened in the first prison scenario,

19 Your Honour, and based on what he himself observed in the prison.

20 Your Honour, I believe that the evidence proved beyond a

21 reasonable doubt that Naser Oric had this -- had actual and inquiry

22 notice, direct and circumstantially. We proved beyond a reasonable doubt

23 that he was in the prison and he failed to prevent or punish.

24 JUDGE AGIUS: Let's skip -- go straight to what you were supposed

25 to address in this part, namely the dispute that exists between you and

Page 16271

1 the Defence, Prosecution and the Defence, as to whether you have

2 sufficiently proven beyond a reasonable doubt that the accused failed to

3 take adequate measures according to the law and jurisprudence surrounding

4 Article 7(3) because that's what we are interested in. The rest is

5 repetitive.

6 MS. RICHARDSON: Yes, Your Honour, I will. With that in mind,

7 Your Honour, I will move into communication which we believe will

8 sufficiently address the fact that Naser Oric failed to take reasonable

9 measures to prevent or to punish. It's -- we believe we will sufficiently

10 address that. And if Your Honour is asking about what specifically he did

11 with respect to the prison then I can answer that at this time.

12 JUDGE AGIUS: No, no. It's just asking you whether you have got

13 anything else to add, to complement your submissions on this aspect.

14 MS. RICHARDSON: Well, Your Honour, with respect to the prisons, I

15 can say that -- that there were numerous means available to Naser Oric

16 with respect to the prison, as well as to the wanton destruction, and via

17 his subordinate, Zulfo Tursunovic who was in the prison, whom he knew had

18 the responsibility for the prisoners, Naser Oric could have taken the

19 measure of eliciting reports from Zulfo Tursunovic inquiring about the

20 conditions of the prison, having -- having information on what had

21 happened in the first prison scenario, despite the fact that Mirzet

22 Halilovic was no longer there, we submit the Prosecution submits,

23 Your Honour, that this is modus operandi of similar illegal acts which

24 goes to circumstantial evidence as well. One factor to consider in terms

25 of the circumstantial evidence. We believe that Hamed Salihovic, a person

Page 16272

1 who had interrogated the prisoners and who submitted reports on the

2 prisoners, Naser Oric could have inquired of Hamed Salihovic the condition

3 that the prisoners -- any concerns of the prisoners, whether they had been

4 beaten or how they were treated and we believe that that is a simple

5 measure that Naser Oric could have engaged in and he failed to do so.

6 JUDGE AGIUS: You haven't addressed to my knowledge at least how

7 you consider the accused's responsibility under this particular section

8 throughout the entire period, because obviously his situation changed as

9 the circumstances changed. The events are treated under the indictment

10 with reference to a particular period, but the alleged 7(3) responsibility

11 extends beyond that period up to, if I remember well, 1995, August of

12 1995, or there is a specific date in the indictment itself.

13 So is your position that his responsibility remained the same or

14 his possibility or -- of punishing or whatever, what are your submissions

15 in that regard?

16 MS. RICHARDSON: Your Honour, if I could have a moment. I just

17 would like to speak with my --

18 [Prosecution counsel confer]

19 MS. RICHARDSON: Your Honour, I believe Ms. Sellers will address

20 Your Honour's question.

21 JUDGE AGIUS: I thank you so much.

22 MS. SELLERS: Your Honour we are about to come to that part of our

23 presentation because --

24 JUDGE AGIUS: I'm sorry, I anticipated.

25 MS. SELLERS: I'm happy that Your Honour is in sync with us or

Page 16273

1 maybe we are in sync with you. What we would like to do is now to address

2 Naser Oric's failure to prevent or punish during the entire time period.

3 First Ms. Richardson will go over for the go over for the next 15 minutes

4 the aspects of communication.

5 JUDGE AGIUS: You hope.

6 MS. SELLERS: For the next 15 minutes, the aspects of

7 communication that lend themselves to preventing and to punishing and then

8 I will conclude that segment, I guess in our next segment for 15 minutes

9 which shows that there is a time span larger than the actual commission of

10 crimes to which Naser Oric is held, and after that, Your Honours, then

11 we'll -- briefly into our two last areas.

12 JUDGE AGIUS: All right. So we have another 15 minutes to go,

13 after which we'll have a break. So Ms. Richardson, please conclude your

14 part of the closing arguments within the next 15 minutes.

15 MS. RICHARDSON: Yes, Your Honour, I will do so.

16 Your Honour, the Prosecution relies on its submissions in the

17 Prosecution reply brief. That brief, Your Honour, discusses at length the

18 communication systems that were available to Naser Oric in Srebrenica in

19 1992, 1993 and thereafter. It's our position, Your Honour, that Naser

20 Oric possessed the reasonable means of communication to exercise effective

21 control over his subordinates and, of course, it's our position that it

22 includes the both prison scenarios as well as the wanton destruction. And

23 it's the Prosecution's position that these reasonable means, if he chose

24 to use them, would have provided him with actual knowledge or inquiry

25 notice of the crimes committed or about to be committed.

Page 16274

1 Your Honour, these were -- the Prosecution submits -- very

2 reasonable measures and necessary that were available to him, despite the

3 Defence's arguments that there were no means of communication or that

4 communication -- Srebrenica was so isolated that they were not able to

5 communicate either within the enclave among the fighters or the soldiers

6 or outside. We know from the testimony of numerous witnesses, and most

7 importantly, Mr. Becirevic, who talked extensively for over a period of

8 time before Your Honours about the types of communication that was

9 available to Srebrenica. Your Honour, the accused himself talked about a

10 system of communication that, once Your Honours go through the transcript

11 of his interview, we believe will agree that this system of couriers,

12 Your Honour, were such that Naser Oric was able to communicate with his

13 subordinates in the field, and I would draw Your Honours' attention to

14 Prosecution's Exhibit 328, transcript 5, page 3 to 8. Naser Oric himself

15 describes what I -- what the Prosecution submits is a reliable and capable

16 courier system that they, the Srebrenica armed forces and the subregion

17 established and I would invite Your Honour to review that portion of his

18 testimony. And I would also invite you to review the portion of his

19 testimony where he detailed the type --

20 JUDGE AGIUS: It's not testimony.

21 MS. RICHARDSON: Sorry, excuse me. Interview, Your Honour. I do

22 apologise. And I invite Your Honours to review the portion of his

23 interview which he himself talks about the type of communication that was

24 available to him in Srebrenica. And that is Prosecution Exhibit 329,

25 transcript 21, page 8 to 9. And Naser Oric informs the investigators of a

Page 16275

1 courier system, Motorolas, radios being used, the use of ham radios, et

2 cetera, and we believe that this provides sufficient evidence that he

3 had -- he was well aware of the communication systems that were available.

4 Your Honour, the Prosecution stands by the exhibits that were

5 discussed in their -- in their reply brief and these issues and just

6 briefly the use of ham radios, Motorolas, and RUPs, and we would ask

7 the -- we would request that the Trial Chamber take a close look at

8 Prosecution Exhibit P84 which talks about the planning and assigns

9 communication equipment to various fighters, including Naser Oric himself.

10 There is one portion of the minutes which states that it was critical that

11 Naser, the commander, have radio communication with his subordinates, and

12 I would direct your attention to P84, page 23, on that issue.

13 Your Honour, the Prosecution is of the opinion that the radio

14 communication was not -- the communication system or means available to

15 Naser Oric was not limited to radio communication in that he -- he held

16 meetings which he stated in his interview, meetings imparting information

17 about how attacks were to be coordinated and planned out. Also, we have

18 orders from the Srebrenica armed forces that were issued through radio

19 communication and we would invite the Trial Chamber to review

20 Prosecution's Exhibit 28 [sic], written documentation, Your Honour, from

21 outside the enclave, also demonstrates that information was sent to Tuzla

22 and Sarajevo, information that the Prosecution submits could have only

23 been provided by Srebrenica itself, and we would invite the Trial Chamber

24 to review Prosecution Exhibit 165 as well, which is essentially reports

25 that were submitted to the Srebrenica armed forces by various commanders.

Page 16276

1 The Prosecution submits that there were two information and

2 communication services in Srebrenica and we believe that those two

3 services, one, was attached to the War Presidency, the other was attached

4 to the Srebrenica armed forces, and they were handed by Hamed Alic. We

5 invite the Trial Chamber to look at Prosecution's exhibit 587, and this is

6 not an exhaustive list, Your Honour, just to briefly refer you to

7 documents the Prosecution put into evidence which lists the various

8 members of the fighting units and their positions were assigned as

9 couriers and we should invite you to look at Prosecution Exhibit P587 and

10 P599 on that issue. Your Honour, I would just add and with stating

11 that -- sorry, I was just told I need to correct the transcript. I

12 believe it says Prosecution Exhibit 28. It should state Prosecution's

13 Exhibit 208. And that's line 11, page 69.

14 JUDGE AGIUS: Thank you.

15 MS. RICHARDSON: Your Honour, I would add on the testimony of

16 Mr. Bocerovic, who talked in great detail about the use of the ham radios

17 and that you may recall that he testified that Naser Oric himself used the

18 radio to contact his wife, and other members of the armed forces used the

19 radio as well. The Defence would have you believe that this radio could

20 not be used to communicate -- could not be used or was not used to

21 communicate information to the outside world outside Srebrenica, being

22 Tuzla and Sarajevo, because it could be intercepted. I would invite

23 Your Honours to look at the types of documents and the information that

24 was transmitted by ham radio to Tuzla and Sarajevo, and you will see, and

25 again we rely on our reply brief, but there is a -- there are a range of

Page 16277

1 documents that we think that the Court should take notice of and that's

2 P303, 307, 308, 309, 310, 122, and, Your Honour, the list goes on. And

3 these documents, Your Honour, in fact provide very detailed information,

4 military information, that was transmitted to Tuzla and Sarajevo, either

5 by the War Presidency or the Srebrenica armed forces, some of which were

6 signed by Hamed Alic.

7 Mr. Becirevic, we submit, was not fully aware of the going --

8 of -- of the military situation in Srebrenica or the military

9 organisations, I should say, as he testified he didn't attend any meetings

10 where Naser Oric was present or any other members of the Srebrenica armed

11 forces. He wasn't even aware that Hamed Alic was the chief of

12 communications for the armed forces or that one had been established but I

13 challenge Your Honours to take a close look at P84 where Hamed Alic says

14 there are two separate communication and information services, one

15 attached to the War Presidency and one attached to the Srebrenica armed

16 forces. We think the documents bear these out, as the documents -- some

17 are sent by the Srebrenica armed forces and some are sent by the War

18 Presidency.

19 Your Honour, I will end on this note, absolutely.

20 After Mr. Becirevic testified, extensively about the system, about

21 the use of the ham radios, and you may recall and I'm short on time so I'm

22 not going to remind you too much in detail, but you may recall that this

23 information was transmitted to Srebrenica and Tuzla. I'd like to end on a

24 note that describes the efficiency, the reliability, the effectiveness of

25 the communication systems available to Srebrenica and I'd like to end on

Page 16278

1 the portion of the transcript where Your Honours we were discussing or

2 that -- Mr. Becirevic was testifying about the use of the ham radios, and

3 that's transcript 7751.

4 Judge Agius posed the question: "So you would then relay this

5 message in whole or in part or in pieces. I can understand you why to

6 contact ham radio -- ham radio contact that you would have, that you would

7 establish. I take it from what you are telling me that in spite of the

8 difficulties that there -- that there obviously were, this was pretty much

9 well organised in that I see here that you relayed it on the 1st of

10 November and on the same day it was received by the Ministry of Defence of

11 the Republic of Bosnia-Herzegovina. So whatever -- so - excuse me - so

12 whoever received your radio communication in whole or in pieces

13 transcribed it, reduced it into writing, and handed it over to the

14 Ministry of Defence on the same day. So do I take it that this system was

15 pretty well organised or am I wrong in my assumption?" That was your

16 question to Mr. Becirevic. Mr. Becirevic responded: "Yes, Your Honour.

17 If you think that this is a good organisation, then yes, we were well

18 organised."

19 And he went on to say, "However, it was very -- it very often

20 happened that the radio operator who was sitting in Sarajevo could not

21 receive or forward the information the same day. Sometimes he would do it

22 on the following day. However, the goal was always achieved. The goal

23 was for the information to arrive at the addressee's address and it

24 eventually did."

25 Your Honour, I need not say much more about the communication

Page 16279

1 systems that were available to Naser Oric, except to say that he had

2 communication means within the enclave and outside, and he had -- and

3 these were means that were materially available to him and he failed to

4 use it. Not because it was impossible but because he chose not to.

5 Thank you, Your Honour.

6 JUDGE AGIUS: Thank you, Ms. Richardson. You referred to P208?

7 MS. RICHARDSON: Yes, Your Honour.

8 JUDGE AGIUS: My records, at least your witness, Becirevic, wasn't

9 quite that happy with that document.

10 MS. RICHARDSON: Perhaps we can bring it up on screen,

11 Your Honour.

12 JUDGE AGIUS: To my knowledge, he categorically confirmed or

13 acknowledged from all the documents that you mentioned, only one, that's

14 P309.

15 MS. RICHARDSON: Your Honour, I'm having that document brought up

16 on Sanction so we can further --

17 JUDGE AGIUS: I don't need to see the document. I'm just

18 referring you to Mr. Becirevic's testimony about it and the other

19 documents that you mentioned, 303, 307, 309, 310, et cetera.

20 MS. RICHARDSON: Your Honour, I believe, based on my memory, not

21 having specifically gone back to this exact point, I believe in summary

22 Mr. Becirevic testified that there were documents that he recalled sending

23 and that there were certain documents that he was not sure that he had

24 sent and then there were others that he had initialed and said that he

25 sent. So I submit that the Trial Chamber should look at the documents as

Page 16280

1 a whole and if --

2 JUDGE AGIUS: All right.

3 MS. RICHARDSON: -- we can -- I can definitely get back to you

4 specifically with that document, Your Honour.

5 JUDGE AGIUS: All right. So we'll have a break of 30 minutes.

6 Now, would that be enough for you or do you wish to have a shorter break,

7 Ms. Sellers?

8 MS. SELLERS: Your Honour, 25 minutes would be fine.

9 JUDGE AGIUS: All right. Is that agreeable to you? So we'll have

10 a 25-minute break starting from now. Thank you.

11 --- Recess taken at 12.32 p.m.

12 --- On resuming at 1.02 p.m.

13 JUDGE AGIUS: Sorry for the delay, Ms. Sellers. I understand that

14 there was some kind of a problem.

15 MS. SELLERS: I believe that counsel were locked out of the

16 courtroom.

17 JUDGE AGIUS: I see. Who was locked out?

18 MS. SELLERS: Mr. Di Fazio and Ms. Richardson.

19 JUDGE AGIUS: All right.

20 Yes, who is next?

21 MS. RICHARDSON: Your Honour, before Mr. Di Fazio makes his

22 submission, I would like to just briefly address to Your Honours the

23 question that you inquired upon.


25 MS. RICHARDSON: With respect to P208 [Realtime transcript read in

Page 16281

1 error, "P028"], and in fact I remember the -- this goes in that document

2 very well in the courtroom when Mr. Becirevic testified. I would first

3 state that the question itself posed by the Defence about whether or

4 not -- and I would read from the transcript, 7812. The question was: Do

5 you agree with me.

6 JUDGE AGIUS: One moment, because we better correct it now rather

7 than later, line 12, it's not P028 -- it's P208.

8 MS. RICHARDSON: Yes, thank you.

9 JUDGE AGIUS: Thank you.

10 MS. RICHARDSON: The question quoting from transcript 7812 on

11 cross-examination of Mr. Becirevic:

12 Question: "Do you agree with me when I say this document was

13 written in an extremely incoherent manner and this seems to suggest an

14 author who is not well educated and not particularly given to writing

15 documents?"

16 The answer was: "Yes, it is true."

17 Your Honour, I recall objecting to this question on the grounds

18 that it invited speculation from the witness. The question was posed in

19 another manner but still I -- the Prosecution maintain that it invited

20 speculation from the witness who had previously testified that he was not

21 involved with military matters and had no knowledge of military matters

22 including the use of couriers and codes, and we've heard from the accused

23 through his interview that there was a system of couriers and codes, et

24 cetera. So, Your Honour, the Prosecution is of the position that that

25 notwithstanding that the witness did not reject the document. All he

Page 16282

1 could say was that it did not appear to have been written in a style that

2 he could attribute to his brother and that's the Prosecution's position on

3 that point.

4 JUDGE AGIUS: Okay. I thank you so much, Ms. Richardson.

5 Who is next, Ms. Sellers? I suppose?

6 MS. SELLERS: Your Honours, I'll be addressing you next and it

7 goes to the issue of Naser Oric's 7(3) responsibility throughout the time

8 period of our indictment, which is from 1992 until 1995.

9 Your Honours, effective control means that one has to have

10 reasonable means, material ability, to effectively control subordinates

11 but control that specifically goes to preventing the commission of crimes

12 and if those crimes were unfortunately committed and we certainly use

13 committed in its larger sense, aided and abetted, committed, in any way

14 participated in, that that superior then has to punish those crimes.

15 The Trial Chamber has heard a lot of testimony concerning

16 inability in Srebrenica in 1992-1993, to do anything, to set up any

17 system, to have a War Presidency, to have a military police, to have any

18 type of functioning court system. The Prosecution submits that failing to

19 prevent and failing to punish does not need a judicially sanctioned means

20 such as a formal court, or even a formal, judicially sanctioned superior.

21 Your Honours, I take you to the Blaskic appeals decision where indicators

22 of effective control are more a matter of evidence than substantive law

23 and indicators are limited to showing whether the accused had the power to

24 prevent, punish or initiate measures leading to proceedings against

25 alleged perpetrators. I'm quoting from the Blaskic Appeals Chamber

Page 16283

1 Judgement of the 29th of July 2004, paragraph 69, because the Prosecution

2 puts before Your Honours that the situation in Srebrenica in 1992, 1993,

3 1994, might not have permitted Tuzla or Sarajevo to come down and give the

4 absolute legal seal of approval on every military institution, including

5 military courts, but that does not leave the subordinates in Srebrenica

6 outside of the law, outside of military law, outside of even discipline.

7 Your Honours, the superiors within Srebrenica knew that there were

8 legal limits and that going across such barriers could incur punishment.

9 Naser Oric says in his suspect interview that one of the first things he

10 did was to issue an order about not burning and during the interview, I

11 believe he contacted Mr. Mazic to confirm if that order had been issued

12 and it appears that it has. We never saw the order brought before this

13 Trial Chamber. We never saw one Defence witness asked whether he

14 remembered that order coming out. We heard so much that there was no

15 paper. Well, it would have been good if there had been an order because

16 the paper that could have been sacrificed in writing this order certainly

17 was worth it or even if it was transmitted orally, via communications,

18 Motorolas, in meetings, that would have at least shown that he took the

19 reasonable measures that he materially had available to him to prevent.

20 We have never seen a discussion in P84 about a standard [inaudible] not to

21 destroy, wantonly destroy, the property after attack. What we have seen

22 instead in P84 is omission of that discussion or we have a situation where

23 we see a warning, "Burn after we have finished or burn after there has

24 been a collection of goods." Now, the Prosecutor did not charge Naser

25 Oric with the attacks in Skelani but I would take to you P84, new P84.1,

Page 16284

1 and I have page 50, "Skelani was burned." The discussion at the OS Staff

2 meeting that was held on the 10th of January 1993, and this is an OS Staff

3 meeting, not a joint War Presidency meeting, says "Skelani was burned,

4 arson should not be allowed before people from Skelani take back their

5 belongings." Almost to suggest that that criminal act is sanctioned after

6 taking back belongings but not before.

7 Your Honour, one might ask, then, why was there no discussion of

8 "we do not burn Skelani. I've heard that there was been burning at other

9 places, Fakovici, Bjelovac, Jezestica, the burning has to stop." No the

10 burning is conditioned upon when people can go to take their goods back.

11 Your Honour, that goes a long way to showing why Naser Oric did not

12 prevent, nor punish. You do not prevent or punish something that you

13 agree should happen or even if you're indifferent that it should happen,

14 or as a matter of fact in pattern or policy it does.

15 During 1992 up until the end of January Your Honours need look no

16 further as to why he didn't use any available means to prevent this type

17 of wanton destruction, because it was a choice. That doesn't mean that

18 later on, in 1993, after the hundreds, after the thousands, after the tens

19 of thousands, of refugees come into Srebrenica and the humanitarian crisis

20 is becoming acute, in the Defence's terminology, the slow-motion genocide

21 is rising, and then we have demilitarisation where many refugees now leave

22 the area and where the organisational structure seems to confirm itself,

23 become more complex, and not less complex. We have soldiers coming in

24 from Cerska that now come under the 8th Operational Group. We have the

25 different soldiers coming in from areas that have fallen but they are all

Page 16285

1 in Srebrenica now, forming, reforming themselves into units, all

2 subordinate to Naser Oric.

3 We have the military police having been demilitarised. Now, the

4 fact that Naser Oric didn't use the institution of the military police

5 prior to demilitarisation for these types of crimes leaves a bit of a

6 question mark. I'll return to that in a second. But during

7 demilitarisation we have Hakija Meholjic who said, "I took over the

8 police," took over what was probably the functioning civilian police.

9 Even if he did take over the military police we have an institution of law

10 enforcement. Hakija Meholjic said that if he had had information passed

11 to him concerning crimes committed by the military he would have

12 investigated, as he did on certain occasions. That's the situation of

13 Emir Halilovic, the killing of the Serb family. It wasn't perfect but it

14 was functioning. Omerovic now has a civilian court system that would look

15 at some of the complaints that occurred from military members. That

16 doesn't mean that the jurisdiction for war crimes which is now in the

17 military district court in Tuzla has been usurped or taken over but it

18 means there could have been a method, and there was a method of

19 transmitting information to Tuzla even if people couldn't be held beyond

20 three days, and that seems to be one of the impossibilities we hear, the

21 information that they should be removed from the area as soon as possible

22 or let it be known in a file in Tuzla, in Sarajevo, that these members of

23 the military have committed crimes, was not done.

24 If you recall, there was testimony concerning discipline of

25 soldiers, information that was sent to Tuzla by a legal officer, Rasid and

Page 16286

1 the information concerned disciplinary measures. Who was held

2 temporarily? The information shows that there was some effort to

3 discipline in the demilitarisation time period in Srebrenica, irrespective

4 of the number of refugees, irrespective of the level of humanitarian

5 crisis. Your Honours, it's because they chose not to turn their attention

6 to crimes committed against Serbs that we do not show the evidence because

7 there was no evidence of those military men being asked to explain what

8 they did when they went to Jezestica or to Fakovici or to Gravica.

9 Your Honours recall that the Prosecution has spoken quite often

10 about a document referred to as P598 which we put forth as a type of war

11 path of the various units. There is a Huso Juric, whose name appears

12 throughout the document, and it seems apparent that if he was, if not one

13 of the recorders, he was the person that went around to the different

14 units to get the information. He asked the same question every time:

15 Where did you attack? Where did you defend. You know, who were your men,

16 what was your weaponry, and then afterwards there was a section where he

17 gathers information about who might receive awards or not. He seemed to

18 be working together with one of the morale officers. But he was

19 collecting information. Among some of the information he collects is

20 evidence that towns were burned, Jezestica was burned, people are thinking

21 back over the history of their participation and they say in document 598,

22 "burnt completely."

23 Even at that very moment, 1993-1994, that information could have

24 been passed to the Legal Officers that Naser Oric was employing at that

25 time regarding discipline, to say, "Would you please look into this? I'm

Page 16287

1 getting information back about these subordinates having burned during the

2 attacks. Can I have more information, please? Can I please transmit this

3 on?" Your Honours, that was not done and that was at a time period when

4 he had access to more military members in the town of Srebrenica, without

5 having to worry about the danger of going from one area to another area

6 within the enclave. That wasn't done because that was never meant to be

7 done. Naser Oric merely chose not to pursue the crimes against the

8 Serbs -- committed, excuse me, committed against the Serbs. I referred

9 earlier to the military police. At times the Defence would have you

10 believe that there was no military police, that it had functioned at such

11 a low level that it had only two or three rifles, as Akif Krdjic says in

12 P84, "I need more rifles." Irrespective of that, Naser Oric acknowledges

13 in his interview that there was a military police, there was that

14 institution. He reported to Ramiz Becirevic. Mr. Omerovic, a witness

15 that we called, who discussed a lot of the impossibility of the Court

16 system does say on transcript 8465 that the military police including

17 Mirzet Halilovic would go to different apartment buildings and forcibly

18 mobilise military-aged men. This was prior, had to be prior, to Mirzet

19 Halilovic being dismissed from the police. The military police could go

20 out and round up people, force them to the front line. The military

21 police in December kept a rather well structured military police book.

22 There might be some mistakes or incidents in there that might leave a bit

23 of questioning but it's a fairly remarkable document of organisation in

24 the midst of a time period when there was not supposed to be any

25 possibility of organization. But if one goes into the document and see

Page 16288

1 what were the types of crimes that were being addressed, they were crimes

2 about taking weapons, crimes about misappropriation of food, at times what

3 might have been rather large quantities of food, particularly for

4 Srebrenica, who desperately needed to share the food among the people who

5 were there. Discussions about prisoners coming into town. And then we

6 have documents relating to the military police that were in the different

7 units. So even if the Srebrenica military police was too localised in

8 Srebrenica and there weren't enough military members in Srebrenica who

9 they could have investigated, we do know that military police,

10 particularly after the reorganisation, were placed in the different units

11 outside of Srebrenica. They could have asked their members there, sent

12 reports, they did, concerning stolen weapons, stolen food. There were

13 reasonable means available. Naser Oric had the material ability. He

14 chose not to use it in 1992 and 1993 or 1994.

15 Now, Your Honours, from Naser Oric's point of view, from his

16 mentality, it could be just a question of priorities. International

17 humanitarian law doesn't ask you to do the impossible but you're not

18 allowed to weigh and balance your priorities and choose not to do

19 anything. I'd like Your Honours to look at a small portion of Naser

20 Oric's suspect interview, and this is coming up now, I believe, it's P329.

21 JUDGE AGIUS: One moment. Yes. The video starts at 3 hours 0

22 minutes and 39.2 seconds.

23 MS. SELLERS: Your Honour, I understand it's transcript 21, page

24 6, line 42.

25 [Videotape played]

Page 16289

1 "Explain to me when it happened. Just as you acknowledged the

2 fact that you did address volunteers, okay, and would it not have been

3 appropriate at that time, whenever you addressed volunteers, welcoming

4 them to the course, or at any other occasion when you stood in front of

5 them, to remind them of their obligations to behave in an appropriate

6 fashion during their actions in the war?

7 "Did you ever do that?

8 Yes. I will give you an example now. When we were attacking

9 this firing line, the line at Zvijezda, when you look from Potocari, it is

10 above the Muslim village of Budak, B-u-d-a-k, before we set out we stood

11 to see roughly how many volunteers had come. I went in front of them and

12 I said to the fighters what was the reason for the attack and where we

13 were attacking. I said that you know that we have people, Muslims, who

14 are down in Konjevic Polje, that they have the same problems as we do,

15 that the Chetniks are attacking us from all sides, that they are -- that

16 they are threatened at this -- that they are threatened at the moment with

17 complete destruction as they are being heavily attacked, and that if we

18 were not -- if we didn't attack the firing lines at Zvijezda, sir, that --

19 and didn't draw attention to ourselves, all of these Chetniks on

20 [indiscernible] would go to the area of Konjevic Polje and that we would

21 have to take it at all costs in order to make it -- make it easier for

22 them to lessen the Chetnik attacks because this point was the entry door

23 to Bratunac. It was an extremely dangerous point. I asked -- I said to

24 them if anyone is afraid, it's better that they leave now, better that he

25 left now rather than that he went along and then be scared later on if

Page 16290

1 someone trod on a mine or whatever, that we would have to take them back

2 as well as our real fighters. I told them that this was a hill strewn

3 with various kinds of mines and that it would be difficult to take it.

4 I understand that but when you get to the point of my question --

5 was it at this occasion you said something in relation to discipline and

6 their behaviour in battle? Because that's the only thing I need to know

7 for this question so we can move on

8 I don't understand how they behaved -- there is no rules of

9 behaviour in a battle. You've got a gun, I've got a gun. The only rule

10 is who is going to kill who first?

11 Is that right? You shoot at me and I shoot at you?

12 There is no language here, there is no speech. The only -- the

13 only discussion is through barrels.

14 Yes, but if one of us are wounded, not dead, if one of us -- wait

15 a minute, and if one of us is taken prisoner, they are -- those are the

16 rules my colleague is referring to.

17 The commanders received orders and it wasn't for me now as a

18 commander to go to each soldier and explain this to them. This was for

19 the local commanders. They were responsible for carrying out --

20 They were responsible for carrying out the preparations with their

21 groups, but upon an occasion like that when you had all the soldiers in

22 front of you, surely you could have taken the opportunity to remind them

23 of their responsibilities.

24 Yes, I did. I told them that they had to behave in a military

25 way, and you can understand everything from that."

Page 16291

1 JUDGE AGIUS: So the video was stopped at 3 hours 07 minutes 39.8

2 seconds. Yes, Ms. Sellers?

3 MS. SELLERS: Your Honours I'll conclude on this section by

4 stating that Naser Oric couldn't allow demilitarisation could equate

5 impunity and if he gave his local commanders orders, which he says he did,

6 then he was alerted that if crimes occurred he should have punished them.

7 He's also alerted if he gave the order not to burn, that he had a duty to

8 prevent crimes.

9 Your Honour, Naser Oric had effective control, he's probably one

10 of the few military officers whose staff wants to resign because he's not

11 using his effective control. Please use it. They are pleading with him

12 to use the power he has. He had the power, he had the reasonable means,

13 the material ability. He chose not to prevent or punish the crimes

14 against the Bosnian Serbs who are the subjects of our amended indictment.

15 Right now we are going to hear a bit about the hostile witnesses

16 and then we will conclude our closing arguments.

17 JUDGE AGIUS: I understand that will be Mr. Di Fazio.

18 MR. DI FAZIO: Yes, if Your Honours please. I won't trouble you

19 for long on this issue. The points I can make -- I want to make can be

20 made briefly. I want to address some comments to you about the witnesses

21 in this case. By now you have heard all and many arguments from the

22 Defence and the Prosecution concerning credibility, reasons why you should

23 believe some witnesses, disbelieve others, and so on. I certainly am not

24 going to get into that.

25 In the main I want to deal with the issue of hostile witnesses.

Page 16292

1 Before I proceed any further, though, there is just one brief matter that

2 I want to raise. The Defence criticised the Prosecution for its approach

3 to their witnesses, and commented on the Defence -- on the Prosecution

4 motivations for criticising witnesses. You'll find those references at

5 paragraphs 92, 94, 100, and 101 of the Defence reply. I'm not going to

6 read out what is said. All I can say to you -- all I want to say to you

7 about that is this: If Your Honours please, the -- any criticisms that

8 the Prosecution has made of Defence witnesses spring from forensic issues

9 and no other considerations.

10 Hostile witnesses, if Your Honours please. The Defence suggests

11 that the Prosecution decision not to treat Nedret -- Dr. Nedret Mujkanovic

12 as a hostile witness requires the Prosecution to accept his damaging

13 testimony as a concluded fact, a conceded fact. The Prosecution's

14 submission to you is that this position is wrong, clearly wrong, and it's

15 not sustained by anything that the Defence has argued or put to you in its

16 briefs, in their reply, or in their closing brief.

17 The crux of the matter lies in paragraph -- sorry, footnote 29 of

18 the Defence closing brief, where they deal with -- in fact, at that point

19 they are dealing with the evidence of Hakija Meholjic and two points

20 emerge from footnote -- the all important footnote 29. That's what I'm

21 going to be speaking to you about. Two points emerge from the -- from

22 that footnote. Firstly, it is said that there is a general principle that

23 a party cannot impeach its own witness and, secondly, the reason for that

24 is that a party guarantees his own witness's credibility and a party is

25 morally bound by the testimony of his own witness. And as authority for

Page 16293

1 those propositions, the Trial Chamber is referred to an article appearing

2 in the Toronto Law Journal, the author, Mr. Bryant, entitled "The Common

3 Law Rule Against Impeaching One's Own Witness."

4 Before I look at the article, I urge Your Honours to remember the

5 wording of the footnote. It is a general principle of law and one

6 recognised by this Tribunal. No authority is provided to you, none at

7 all, on why that should be so and why it is that the following principles

8 are recognised by this Tribunal.

9 The -- what the Defence is really seeking to do here, if

10 Your Honours please, is not to -- what they are really concerned about is

11 not to establish that the Defence can't impeach its own witnesses. There

12 has been no attempt on the part of the Prosecution to do that, in any

13 event. What the Prosecution -- what the Defence really seek to do here is

14 to ensure or ask you to accept that the Prosecution is morally bound and

15 must guarantee everything Mujkanovic said, including his damaging

16 testimony. And they rely, as I said, on the article. The important thing

17 for you to do in the Prosecution's submission, is to go to the article and

18 it's been provided to Your Honours. I think you have full copies of it.

19 JUDGE AGIUS: Yes, we have.

20 MR. DI FAZIO: I'm not going to take you through it. It's an

21 interesting article and deals with the history of the common law rule

22 against impeaching one's own witnesses except where they are declared

23 hostile. And it's apparent from reading the article that the author makes

24 clear that the rule against impeaching one's own witnesses is developing

25 constantly in the common law world and you can see that, for instance, at

Page 16294

1 page 431 of the article, where it describes the developments that occurred

2 in the 19th century and the changing and evolving positions of the rule.

3 I don't intend to take you through it but there is a discussion of

4 colleges case and a discussion of developments between 1800 and 1850,

5 where -- and the author notes, in the period between 1800 and 1850 the

6 rule appeared more frequently in the reported cases and it became clear

7 that the mere fact of having called a witness will not preclude a party

8 from proving the truth of any particular fact material to the issue by any

9 other competent testimony though such evidence may be in direct

10 contradiction to what the witness may have testified.

11 That's just one reference to one period of the developing and

12 evolving rule. So that the central submission I make is that what springs

13 out at you from this article is that it's not a static rule and it

14 differs, indeed, from common law jurisdiction to common law jurisdiction.

15 Furthermore, and I don't need to dwell on this, Your Honours have

16 made pronouncements throughout this trial and the law and jurisprudence of

17 this Tribunal is redolent with observations that you are not bound by the

18 Rules of Evidence springing from domestic jurisdictions or national

19 jurisdictions. However, if you go to the actual quote itself, that is

20 contained -- that is extracted and placed in footnote 29, it's clear that

21 the Defence failed to cast their eye as far as the beginning of the

22 sentence that they quote and they failed to cast their eye into the

23 sentence below. The pronouncement -- the quotation is an extract of a

24 sentence at the top of page 433. There you can see those words, a party

25 guarantees his own witness's general credibility and a party is morally

Page 16295

1 bound by the testimony of his own witness. What precedes the sentence,

2 though, is this: The admission of this evidence conflicts with two of the

3 traditional reasons given in support of the rule. A party guarantees his

4 own witness's general credibility and a party is morally bound by the

5 testimony of his own witnesses -- of his own witness. Wigmore, which I

6 believe is a well known North American text on evidence, states that the

7 reception of this evidence signifies the rejection by the Courts of those

8 justifications for the rule. This article is in no way support for the

9 proposition advanced in footnote 29. It's emphatic and it's surrounded by

10 words that make that clear.

11 So the reliance that the Defence places on this article is

12 unfounded.

13 The issue, though, if Your Honours please, has been looked at and

14 pronounced upon, not precisely this issue of witnesses said to be hostile

15 but the assessment of witness evidence has been pronounced upon in the

16 Appeals Chamber in the Kupreskic decision of the 23rd of October 2001, at

17 paragraphs 332, 333, and 334, where the Appeals Chamber said, and I should

18 quote, it's only brief, and I can't put it any better. "It is of course

19 open to a Trial Chamber and indeed any Tribunal of fact to reject part of

20 a witness's testimony and accept the rest. It is clearly possible for a

21 witness to be correct in her assessment of certain facts and incorrect

22 about others." And then at paragraph 333, "The jurisprudence of this

23 Tribunal confirms that it is not unreasonable for a Tribunal of fact to

24 accept some but reject other parts of a witness's testimony. The

25 situation before the Appeals Chamber in the present case is akin to those

Page 16296

1 cases within the jury system where a jury returns different verdicts on

2 different counts even though the evidence for all counts comes from one

3 witness."

4 And then in paragraph 334, the Appeals Chamber says, "The Appeals

5 Chamber has reiterated the importance of such a holistic approach to

6 assessing credibility within its own jurisprudence. A Tribunal --" and

7 referring to the Tadic case, "A Tribunal of fact must never look at the

8 evidence of each witness separately as if it existed in a hermetically

9 sealed compartment. It is the accumulation of all the evidence in the

10 case which must be considered. The evidence of one witness when

11 considered by itself may appear at first to be of poor quality but it may

12 again strength from other evidence in the case." That's the approach that

13 the Prosecution urges upon you. You are entitled to, and you should, and

14 you are free to, look at the evidence of Dr. Mujkanovic in the light of

15 all the other evidence in the case and you're free to reject parts of it,

16 accept parts of it, accept none of it, accept all of it, whatever you wish

17 as you are the triers of fact. So the -- and that approach, if the --

18 that approach, of course, the fact that you are free to do that vitiates

19 against any tying of this court's hands by the suggestion that the

20 Prosecution is morally bound to accept that position, guarantees that

21 position. If that were so, this case would have ended after

22 Dr. Mujkanovic had testified.

23 So that's all I want to say to you about this issue. The

24 proposition of law advanced by the Defence just hasn't got legs. It can't

25 walk in the first place because it's not authority for what it's said to

Page 16297

1 be. Those rules don't apply here in this particular Tribunal. You're

2 free to decide what facts you choose to accept or reject and that is the

3 approach that the Prosecution urges that you adopt in this case.

4 JUDGE AGIUS: I thank you, Mr. Di Fazio.

5 Ms. Sellers? We have got four minutes.

6 MS. SELLERS: Yes. And we will conclude within those four

7 minutes, Your Honour.

8 JUDGE AGIUS: Yes, I appreciate that because I have another at

9 2.15 and it is bound to last, I don't know how many hours.

10 MS. SELLERS: While there is so much more that one could say I

11 think enough has been said. I think Your Honours have the evidence

12 before you. You have the Accused before you. You have the pleadings

13 from both parties before you. The Defence will make their submissions.

14 Your Honours, if I would ask you to remember one thing, I would

15 certainly say that oh, and then another thing and then another thing. It

16 will be the totality of the evidence. I cannot give you one key. What I

17 can advance is the following thought: When awards were to be given out,

18 when people were to be rewarded in Srebrenica, as subordinates, in the

19 armed forces, even under the 8th operational group, even those who were

20 deceased, such as Mirzet Halilovic, they mention valiant victories in

21 which the subordinates had taken place or participated, and for Mirzet

22 Halilovic, they recounted Kravica and they said that he left Kravica

23 bloody and burning.

24 I want Your Honours to look at the picture on Sanction offered by

25 Defence witness. It's P460. Your Honour, this was taken, if I understand

Page 16298

1 correctly, by Philipp and I would like to finally pronounce one name

2 correctly in this Tribunal -- Recklinghausen, I probably didn't do it

3 correctly.

4 Your Honour, the Prosecution would ask you to look at this

5 carefully. Naser Oric with his well-armed, uniformed men on horse, and

6 leave you with the understanding that Kravica, on the day that it was

7 taken, was bloody and burning. And Your Honours, this is a victory shot.

8 This is going back into where we were victorious, we destroyed with fire.

9 It's celebrated. It is not evidence of punishment. Naser Oric did not

10 prevent or punish the crimes against the Serb victims. Naser Oric should

11 be shown to be guilty beyond a reasonable doubt because he declared

12 victory over crimes.

13 Your Honour, this will conclude the arguments from the

14 Prosecution. Thank you.

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

16 Mr. Di Fazio, Ms. Richardson. Two small things for when the Defence would

17 have finished. I draw your attention to page 199 of your final brief.

18 You make reference to P456, and use it to strengthen or to sustain one of

19 your submissions. P456 was admitted orally on the 2nd of November 2004

20 only, however, to prove the existence of an armed conflict and for no

21 other reason. That's one thing I wanted to point out to you.

22 Then in paragraph 25 of your final brief, you mention or you

23 allege or submit that there are 17 documents from the Sokolac collection

24 that have been made use of by the Defence but you do not indicate which

25 ones you are referring to.

Page 16299

1 And then equally in paragraph 28, you make a statement that --

2 this is page 14, the Defence made extensive use of documents from the

3 Drina Corps collection to assist the case but there is no indication as to

4 which documents you are referring to. Basically there are no footnotes.

5 We would like you to address this when you make submissions on Friday.

6 Also, how you submit we should look at -- at the moment, I can't remember

7 the exhibit number, but the Defence entered into the records a report from

8 Dr. Fagel or by Dr. Fagel on various documents on which the name of Zanin

9 Zananovic [phoen] appeared together with a signature next to the name, and

10 apart from what Dr. -- from Zananovic himself stated in a statement that

11 is also on the records, it seems to me, reading Dr. Fagel's report that

12 there is barely one document that he has examined that he can attribute

13 any measure of probability to Zananovic himself.

14 So we would like to hear submissions on how you submit we should

15 look at all those documents, some of which you mentioned this morning,

16 like document P15, if I remember correctly, P15, P16, any way, there are

17 several of them, quite a number.

18 I leave you with that. I thank you so much for all your

19 submissions. Tomorrow we'll start with your submissions, and then Friday,

20 as we agreed will be dedicated to tying up the few loose ends that there

21 will be. But if you need Monday as well, we are prepared to give you

22 Monday. All right? Thank you.

23 --- Whereupon the hearing adjourned at 1.50 p.m.,

24 to be reconvened on Wednesday, the 5th day of April,

25 2006, at 9.00 a.m.