Tribunal Criminal Tribunal for the Former Yugoslavia

Page 14872

 1                           Thursday, 31 March, 2011

 2                           [Defence Closing Statement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.00 a.m.

 6             JUDGE MOLOTO:  Good morning to everybody in and around the

 7     courtroom.  Mr. Registrar, please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

 9     everyone in and around the courtroom.  This is case number IT-04-81-T,

10     the Prosecutor versus Momcilo Perisic.  Thank you.

11             JUDGE MOLOTO:  Thank you very much.  Could we have the

12     appearances for the day, starting with the Prosecution.

13             MR. HARMON:  Morning, Your Honours.  Morning counsel.  Good

14     morning everyone in the courtroom.  Mark Harmon, Bronagh McKenna,

15     April Carter, Barney Thomas, Rafael La Cruz and Carmela Javier for the

16     Prosecution.

17             JUDGE MOLOTO:  Thank you very much, Mr. Harmon.

18             Mr. Lukic.

19             MR. LUKIC: [Interpretation] Good morning, Your Honours.  Good

20     morning to all the participants in the proceedings, in and around the

21     courtroom.  General Perisic is represented today in this courtroom by the

22     same Defence team, Novak Lukic, Gregor Guy-Smith, Dee Montgomery,

23     Tina Drolec, Chad Mair and Boris Zorko.

24             JUDGE MOLOTO:  Thank you so much, Mr. Lukic.

25             Mr. Lukic.

Page 14873

 1             MR. LUKIC: [Interpretation] Before I resume, Your Honours, I

 2     would like to make two interventions into the yesterday's transcript.  We

 3     will have some minor interventions later on that we'll ask to be verified

 4     once we've checked the tape but this is what I would like to check.  Page

 5     14829, line 22 of the transcript.  I don't know if that can be shown on

 6     our screens right now.  If you recall, I spoke of the structure of the

 7     30th Personnel Centre within the personnel administration at the time and

 8     I mentioned Generals Matovic and Zoric.  In that context, I said, [In

 9     English] "General Matovic could not issue orders to General Mladic."

10             [Interpretation] The next sentence: [In English] "He could tell

11     Mladic and this is an administrative matter, quoting, 'I need a report

12     about a situation with your family.'"  [Interpretation] What I said was,

13     for instance, could he have told Mladic so and so, and that's the way I'd

14     like the transcript to be construed, and I think that's easy to deduce

15     from the sentence before and after, that that was the parallel that I was

16     drawing in my argument.

17             JUDGE MOLOTO:  Mr. Lukic, at the very crucial stage of your

18     intervention, there was an overlap and we don't know what you said

19     because I heard a very loud voice in my ear.  If you look at line 10 of

20     page 2 you'll see that -- I beg your pardon, line 7, you said, "I spoke

21     of the structure of the 30th Personnel Centre within the personnel

22     administration at the time and I mentioned Generals Matovic and Zoric in

23     this context I said English and then overlap."  Can you repeat that.

24             MR. LUKIC: [Interpretation] Yes, that was because I switched to

25     English and that's why there was the overlap with the interpreter.  What

Page 14874

 1     the transcript reads is on this page, page 14829, line 22 is [In English]

 2     "For instance, he could tell Mladic, and this is an administrative

 3     matter."  [Interpretation] And then what follows is something that I have

 4     no issue with, but I'll say in English what it was that I said, [In

 5     English] "For instance, could he tell Mladic ..." [Interpretation] Could

 6     he have told Mladic, so that's the correction I'd like to make.

 7             And I have another correction to make.  When on page 14834, I

 8     spoke of the Erak case.  A moment, please.  What reads in the transcript

 9     in English in line 21, when I spoke of his return -- my apologies, that's

10     page 14834, the entire passage starts in line 24, but continues on the

11     following page.  And I said, this is what the transcript reads, [In

12     English] "Quite the contrary, they prove voluntariness." [Interpretation]

13     What I said in Serbian was that quite the contrary, this showed

14     wilfulness.  Thank the interpreters.  I spoke of the wilfulness exhibited

15     on the part of that individual.

16             And let me go back, Your Honours, to where we left off yesterday.

17     If you remember, in the latter part of my submissions, I spoke of the

18     evidence which on the one hand show the commitment taken on the part of

19     the leadership of the FRY and the VJ to peace in Bosnia-Herzegovina and

20     Croatia, and on the other hand I used the same evidence to show examples

21     of lack of control, absence of control, and the typical examples where

22     attempts were made at exerting some sort of influence to bring these

23     matters about.  I will continue along the time-line that I followed and

24     what comes next is the 40th session, which is P714 and I'll ask pages 2

25     and 3 in B/C/S and pages 2 and 3 in English to be shown.

Page 14875

 1             I'm going back to that story of the context that you need to bear

 2     in mind, the background, when we are talking about these issues.  The

 3     session was held on the 5th of August, 1995, and I'll remind you that

 4     this was the time, a very traumatic time of the Croatian offensive

 5     against the RSK and the mass exodus that took place from Croatia.  We

 6     don't have the transcript of the session, but we have the minutes which

 7     read as follows:

 8             "The president of Republic of Serbia, Slobodan Milosevic ...

 9             JUDGE MOLOTO:  [Microphone not activated]

10             MR. LUKIC: [Interpretation] That's the lower part of the page in

11     English, "Contributing to the debate, president of the Republic of

12     Serbia, Slobodan Milosevic, noted that all the issues that had been

13     raised were extremely difficult and that it was important to look at the

14     situation in its entirety.  He reminded everyone of the efforts invested

15     by the FR Yugoslavia the previous year to get Republika Srpska to accept

16     the Contact Group Plan and for the leadership of the RS Krajina to enter

17     into dialogue with Zagreb.  Unfortunately, from that moment on, a shift

18     occurred between Knin and Pale.

19             "And to the extent we were able to, we tried to bear upon the

20     leadership of the RS Krajina to engage in dialogue with Zagreb."  This is

21     end of quote.  I will move off to another example, another illustration

22     which occurred only ten days later which was the 41st session of the

23     Supreme Defence Council, P797.  Because of the critical situation in view

24     of Operation Storm which was on-going and the exodus of the Serb

25     population from Krajina, this session was held -- was actually expanded,

Page 14876

 1     as you will see, including all of the senior officers of the VJ General

 2     Staff.  It was in fact an expanded collegium of the VJ General Staff with

 3     SDC members.

 4             Page 24 in B/C/S, and 25 in English, is where Milosevic addressed

 5     all the generals who were present from the VJ General Staff and said:

 6             "Therefore, I kindly ask you as colleagues of these people to

 7     work upon them and use your influence as far as possible to make some --

 8     to put some sense into them to make them realize it's absolutely

 9     impossible to wage a war against the whole world and the entire NATO pact

10     and that there is no chance for any military success.  Whoever has such

11     half-crazy ideas must realise that the entire people would pay for it.

12     Therefore we have to exert pressure and explain to them that the only

13     settlement that can be found is through the peace plan.  In this way we

14     will resolve historical and existential issues and we will get rid of the

15     war threat approaching the borders of Yugoslavia ."

16             What followed next was the bombing of Republika Srpska.

17             Therefore, the wish of the FRY leadership was to exert pressure,

18     to work upon them with a view to putting a stop to the war.  The

19     background that I mentioned was the Croatian Muslim offensive in Bosnia,

20     the Serb exodus from the Republic of Serbian Krajina, the Army of the RSK

21     was practically non-existent at the time and on the other hand, the VRS

22     officers had their salaries returned back in February and it was the

23     members of the SDS and Perisic who met with Mladic on several occasions,

24     this is what Mr. Harmon mentioned.  And then we have another meeting of

25     the SDS with General Mladic where he was invited to take part in the

Page 14877

 1     meeting.

 2             THE INTERPRETER:  Interpreter's correction:  SDC, the Supreme

 3     Defence Council.

 4             MR. LUKIC: [Interpretation] Now, this was on the 23rd of August,

 5     1995.  Exhibit P713.  Pages 5 and 6 in B/C/S and 5, 6, and 7 in English

 6     and that's the part that I would like to read fully.  I am sorry, in

 7     English it's 5 and 6, and in B/C/S it's 5, 6, and 7.

 8             At the time of these discussions, there were talks held with

 9     Mr. Holbrooke and the international community with a view to finding a

10     peace solution and the discussions were going on about who was going to

11     represent the Serbs in these negotiations, and that's the subject of the

12     debate here.  Addressing General Mladic, President Milosevic repeated the

13     possible options for stopping the war and resolving the crisis.

14     Reiterating that we should strive and fight for peace.  He therefore

15     asked the general to make a public statement on behalf of the

16     Army of Republika Srpska Main Staff consisting of one sentence, in

17     inverted commas, "We accept peace.  Matters would take a turn for the

18     better for all the Serbs.  And then guarantees could be obtained from

19     authorised representatives of the international community for the Serbian

20     population in the territories from which the Serbian army would withdraw.

21     This would be supervised by the UN forces and be possibly even by NATO.

22     The people would not have to leave their centuries-old homes."  What

23     follows next is a passage that is a bit more difficult to read.  It

24     reads:

25             "General Mladic was asked to state" - what follows next is

Page 14878

 1     illegible - "whether he would accept a solution negotiated by

 2     President Milosevic."  Again an illegible passage.  "Fought for a peace

 3     and preserved Republika Srpska."  The next sentence:

 4             "He did not wish to state his opinion, explaining his," I presume

 5     "view," but I won't speculate, "that he is 'only a soldier of the people

 6     and not an elected representative and has no such powers.'  He would

 7     leave this to the politicians."  The next sentence:

 8             "The reasoned arguments of," what I see here is, "Presidents

 9     Lilic and Bulatovic were of no help either."  I don't know if the same

10     names are transcribed in English.  And another passage that follows next,

11     "President Milosevic replied that in the interests of the Serbian people

12     that he seemed to be -- to have so close to his heart, he would sign a

13     statement testifying to his commitment to peace as for the benefit of all

14     and guarantees -- and the way to save the Serbs from total destruction

15     and to give guarantees to the negotiating team that everything agreed

16     will be accepted and implemented."  The text of the proposed public

17     statement of General Mladic, commander of the Army of Republika Srpska

18     Main Staff reads as follows:

19     "I believe I'm acting in the best interest of the Serbian people and

20     hereby state that on behalf of the Army of Republika Srpska Main Staff,

21     I will accept the peace plan reached by President Milosevic in Geneva."

22             What does the next line of the minutes read, let's see:

23             "General Mladic refused to sign and then there's an illegible

24     passage, leaving this for a meeting with politicians."

25             Let us go back to the legal issues and findings that you should

Page 14879

 1     make on the basis of this evidence.  What are the control mechanisms that

 2     according to the OTP General Perisic had at his disposal?  According to

 3     the OTP, the fact that he received his salary from him, and not just

 4     Mladic, but the most significant part of the officers corps.  He promotes

 5     them and verifies ranks to them and as the OTP says, they have mechanisms

 6     to order them to return to the Army of Yugoslavia and then, as the

 7     Prosecutor says, they have mechanisms to initiate disciplinary

 8     procedures, arrest, and even terminate their service.

 9             And in addition to Mladic's spectacular statements that without

10     the FRY, the VRS would not be able to survive and that he purportedly

11     feels to be a member of a single army, well, what do you conclude from

12     this?  This is simply a way to exert influence on Mladic.  His reaction

13     to that influence is that he does not wish to hear them out, he does not

14     wish to hear what Perisic or Milosevic have to say, and the justification

15     he draws upon is that he is merely a soldier of the people.

16             The leadership and the military leadership of the FRY did not try

17     to influence Mladic only.  We have presented evidence about direct

18     contacts with other senior officers of the VRS and the SVK.  The first

19     question that we put is why would one influence and persuade and besiege

20     and beg someone who the Prosecution claims is, de jure, as a member of

21     the Army of Yugoslavia, a subordinate to Perisic?

22     I'm going to remind you of Exhibit D344 now.  We dealt with that in our

23     final brief as well.  We dealt with this with witnesses and it was under

24     seal at the time because of Mladic's diaries, but I would like us to look

25     at it now within this context that I'm speaking of in open court.  This

Page 14880

 1     is a meeting between General Perisic and his closest co-workers from the

 2     General Staff of the Army of Yugoslavia and practically the entire

 3     Main Staff of the VRS and General Mladic on the 14th of August, 1994.

 4             That is to say, after the Federal Republic of Yugoslavia imposed

 5     sanctions on Republika Srpska after the decision was reached to stop the

 6     payment of salaries, the meeting took place in Crna Rijeka.  Perisic, at

 7     the very outset, conveys the message of the state leadership of the FRY

 8     to them, the Main Staff, and the highest-ranking officers of the Army of

 9    Republika Srpska. And the message is that they are asking them not to obey

10    the leadership of Republika Srpska.  In Perisic's words, the leadership

11     of Republika Srpska have doomed their own people to a catastrophe.

12             Now, page 8 in English and page 8 in B/C/S, and in relation to

13     those words, and those requests made by the state leadership of the FRY,

14     it is what General Manojlo Milovanovic, Chief of the Main Staff of the

15     Army of Republika Srpska, is saying.  He is uttering words that

16     General Mladic is recording in his diary.  And you will recall that

17     during the trial, General Skrbic who was a witness confirmed those words

18     to be authentic.  This is what he says, Milovanovic:

19             "You are asking us to reject the authority of our leadership.

20     They were chosen by the people.  They are as they are.  I cannot refuse

21     to obey such a leadership because you did not refuse to obey your

22     leadership either."

23             In a single sentence here, Your Honours, there is proof of

24     General Milovanovic's position and that has shattered the entire theory

25     of the Prosecution about the belonging of these officers to the VJ, about

Page 14881

 1    effective control, and even goes to show the inability to wield influence.

 2     These officers, who received their salaries from the

 3     Federal Republic of Yugoslavia, at that point in the Federal Republic of

 4     Yugoslavia left them without any salaries.  They regulated their status.

 5     They verified their ranks.  It did not cross their minds to listen to

 6     Perisic's request and the request of the state leadership of the FRY and

 7     to go by it.  In this episode, where were all of these means of control

 8     that the Prosecutor speaks of?

 9     The Prosecutor says that Perisic could have said to all of them then, Go

10    back, all of you, I hereby issue an order for all of you to go back to the

11   Federal Republic of Yugoslavia. Otherwise that is what the state leadership

12   of the FRY asked them to do. You know that that was the decision reached at

13   that session. They all refused this request of the leadership of the FRY.

14             We discussed this subject in quite a bit of detail in our final

15     brief as well, so I'm not going to deal with it anymore at this point,

16     but I would like to draw your attention to something that we wrote in our

17     final brief.  However, now I would like to talk about effective control

18     and influence on the SVK.  We wrote about that in our final brief in

19     paragraphs 985 through 987, then 993, 994, 995, 1003 and 1156.  The

20     Prosecution, as we have heard at the beginning of Mr. Harmon's remarks,

21     dropped the charges for not preventing the shelling of Zagreb.  So the

22     same mechanisms that are claimed to have been indicators of effective

23     control, and those are, as I mentioned a moment ago, all of that being

24     insufficient salaries, decisions on appointment, administrative orders,

25     verifications.  All of that, all of these mechanisms of effective control


Page 14882

 1     obviously were totally insufficient for establishing any kind of

 2     effective control on the part of General Perisic in terms of preventing

 3     the shelling of Zagreb.

 4             All of these arguments were refuted by one single influence that

 5     could not function in military structures anymore, it certainly could not

 6     get close to the level of an order or effective control.

 7             Could we please move into private session for a movement.

 8             JUDGE MOLOTO:  May the Chamber please move into private session.

 9                           [Private session]

10   (redacted)

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Page 14883

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20                           [Open session]

21             THE REGISTRAR:  We are back in open session.  Thank you.

22             JUDGE MOLOTO:  Thank you so much.

23             Yes, Mr. Lukic.

24             MR. LUKIC: [Interpretation] I would like us to have a look at a

25     brief section of an intercepted conversation between Milosevic and


Page 14884

 1     General Perisic on the 2nd of May, 1995, P1314.  We note that that is the

 2     day when the first shelling of the city of Zagreb took place.

 3             "Milosevic:  Did you say that that should not be done?

 4             "Perisic:  I told them not to do it anymore.  He says, 'Listen, I

 5     have to defend myself, I have no choice, you are not helping me, I have

 6     to defend myself.'

 7             "Milosevic:  He is crazy."

 8             JUDGE MOLOTO:  Can we just wait until we get to the next page.

 9     Okay.  You may proceed.

10             MR. LUKIC: [Interpretation] Then General Perisic says:

11             "Perisic:  I can tell you.

12             "Milosevic:  Now they are taking care of the cease-fire, he is

13     bombing Zagreb."

14             Another Exhibit P1297.  In that document it say that is this

15     intercepted conversation was taking place on the same day at 11.35 a.m.,

16     the same two interlocutors.

17             "Milosevic:  How dare they do that.

18             "Perisic:  Well, how.  You can see that all of them are crazy,

19     Mr. President.

20             "Milosevic:  The peace talks are continuing at 3.00 and all of

21     that, but are they doing all of this on purpose?"

22             I'm going to provide a comment at this point, let me give you the

23     context.  At 3.00 p.m., talks are supposed to continue between the

24     premier of Republika Srpska Krajina, Mikelic, with the Croatian

25     government about the cessation of hostilities in Western Slavonia.  And


Page 14885

 1     now Perisic goes on to say:

 2             "They are not in line with each other.  This Martic, I have a

 3     feeling that he is lost and that he doesn't think about the situation at

 4     all.

 5             "Milosevic:  Did you tell Celeketic that this must not be done?

 6             "Perisic:  Well, I did tell Celeketic, but it seems that he and

 7     Martic did it without our knowledge.  They shelled Karlovac, Sisak, and

 8     now, as you see, also Zagreb."

 9             Can we now move into private session, please.

10             JUDGE MOLOTO:  May the Chamber please move into private session.

11                           [Private session]

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Page 14886











11  Page 14886 redacted. Private session.















Page 14887

 1   (redacted)

 2                           [Open session]

 3             THE REGISTRAR:  We are back in open session, Your Honours.

 4             JUDGE MOLOTO:  Thank you, Mr. Registrar.

 5             Yes, Mr. Lukic.

 6             MR. LUKIC: [Interpretation] May I conclude in relation to

 7     influence and control, the evidence that was adduced during these

 8     proceedings do not show that General Perisic had any mechanism of

 9     authority that goes beyond the level of influence, and also that this

10     influence over his alleged subordinates sometimes had limited success,

11     sometimes had some success, and sometimes failed altogether.

12     It all depended on whether those whom the Prosecution identifies as his

13     subordinates, perpetrators of crimes, wanted – and I underscore the word

14     wanted – to accept his requests.  However, he did not have any mechanisms

15     in view of these requests made to these persons to make them perceive

16     these requests as orders, naredjenje or naredba.  This was not because

17     they did not understand that from a military point of view they could

18     suffer any consequences, because they knew that they were not in the

19     chain of command of the VJ.

20             As I've already mentioned on a number of occasions, the

21     relationship that actually had a bearing on influence, and not on

22     control, is a strong argument showing that there was a lack or that there

23     was no control.  Now, I will move on to another topic that has to do with

24     certain indicia of effective control that the Prosecutor is using as --

25     and claiming that they were mechanisms that General Perisic had at his


Page 14888

 1     disposal to discipline.

 2             The Prosecutor claims that General Perisic had the mechanisms to

 3     discipline his subordinates in the 30th and 40th Personnel Centres and

 4     that that was evidence of effective control.  The Prosecutor is also

 5     trying to show that he did use those mechanisms, but selectively and not

 6     when they related to war crimes.  At the outset, I would like to stress

 7     one more time something that I said yesterday regarding the legal test,

 8     the legal standard of the Appeals Chamber of this Tribunal is that the

 9     lack of power of a commander to prevent or punish must be met at the time

10     of the commission of the crime.  We claim that General Perisic did not

11     have that power at the time of the crimes with which he is charged as the

12     superior officer, nor later on, because the individuals that are

13     identified as perpetrators, as his subordinates never entered, not even

14     later, the chain of command of the Army of Yugoslavia because they were

15     never assigned to any duty in any unit of the Army of Yugoslavia.

16             His ability to use this mechanism, the Prosecutor finds in his de

17     jure authority, which is envisaged pursuant to the Law on the Army of

18     Yugoslavia, and then he goes on to cite the law itself, which is P197.

19     Now, we would like to stress that the same law, in its Article 181,

20     paragraph 1 that I mentioned yesterday, is very clear.  It clearly makes

21     a distinction between the authority to initiate disciplinary proceedings

22     against individuals who are members of the army and those outside of it.

23     Specifically, all persons who are outside of the Army of Yugoslavia, for

24     instance, the staff of the Ministry of Defence, the exclusive authority

25     to take disciplinary action against those people is in the hands of the

Page 14889

 1     minister of defence.  There's absolutely no authority at the General

 2     Staff, or the Chief of the General Staff of the Yugoslav Army to initiate

 3     disciplinary proceedings over such individuals who are outside of the

 4     chain of command of the Army of Yugoslavia.

 5     Perisic did use his legal authority over those individuals who were

 6     within the Army of Yugoslavia, so the proceedings that were initiated

 7     against Boro Ivanovic, General Boro Ivanovic were done in keeping with

 8     that.  He was a general within the Yugoslav Army, Perisic used all his

 9     legal power, initiating disciplinary proceedings against him and we saw

10     what the outcome was.  Mr. Guy-Smith mentioned this, at the27th session

11     of the Supreme Defence Council, criticised him and said that he should

12     seize all the proceedings and at the 29th session, the proceedings were

13     quashed, against General Perisic's will.  This was done by -- pursuant

14     to a decision of the members of the Supreme Defence Council and, as I

15    mentioned yesterday, and you have it all in evidence, at the 30th session,

16     they actually promoted this general against the will of General Perisic.

17     Therefore, that was where General Perisic used his legal authority

18     to discipline persons who were serving within the Army of Yugoslavia.

19             Now, the case of Colonel Babic that the Prosecutor cited as an

20     example that there was a mechanism at the disposal of General Perisic to

21     move for disciplinary proceedings are consistent with this case, and that

22     is our reading of this document.  Now, if you look at D2414, and that is

23     the document --

24             THE INTERPRETER:  Interpreter's correction:  P2414.

25             MR. LUKIC: [Interpretation] That is the document that the

Page 14890

 1     Prosecutor used to show that Perisic did have the authority to launch

 2     disciplinary proceedings.  This document, dated December 1995, shows that

 3     Colonel Laza Babic at that point in time served at the Military Post 1122

 4     in Belgrade.  In other words, he was assigned to a post within the Army

 5     of Yugoslavia at that point in time unlike other members of the

 6     40th Personnel Centre which were not assigned to any post, and therefore

 7     in this case, General Perisic used his authority in terms of this

 8     individual, who returned to the Army of Yugoslavia and was assigned to a

 9     post within the Army of Yugoslavia to take -- to discipline this

10     individual if that was needed.  This was the same case, the same case

11     applied.  This is totally different to the case of Bulat.  The case of

12     Bulat and other officers within the 40th Personnel Centre is in the

13     following:  None of them were assigned to the post in the Army of

14     Yugoslavia.  Once they are outside the command chain of the Army of

15     Yugoslavia, Perisic did not have any legal authority to initiate any

16     proceedings against them.  This is why the decision in his case was made

17     by the Supreme Defence Council, which was a superior organ to Perisic and

18     the only organ that was superior to him, and that could command the

19     Army of Yugoslavia, pursuant to orders of the President of Yugoslavia and

20     once they issue an order which does not constitute a crime General

21     Perisic has to implement that under the law.

22             The Prosecutor cited the words of General Perisic at a collegium

23     of the Chief of the General Staff on the 6th of November, 1995.  You

24     remember the words, "I can arrest him but I won't."  That was P2204.  But

25     if we put this chronologically in context and see what it was that led

Page 14891

 1     Perisic to say those words in the collegium session, I would refer you to

 2     P703 to check that.  That is the session of the Supreme Defence Council,

 3     the 43rd session, the BH page should be page 2, and English page 1, this

 4     was on the 30th of August, 1995, in other words two months preceding the

 5     words said by Perisic at that other session.  My apologies, P708.

 6     Document P708.

 7             And I would like to point you to conclusion number 2.  We see

 8     that this is a document from August 1995, and please bear that in mind

 9     when you assess the evidence shown by the Prosecutor.  This was a

10     conclusion taken on the 29th of August, 1995.  Could we have the next

11     page in B/C/S.  We need paragraph 2, where it says:

12             "Disciplinary or criminal proceedings shall be initiated against

13     professional members of the 40th Personnel Centre for whom there are

14     grounds to believe that they have committed a violation of discipline or

15     a criminal offence."

16             At the next session of the Supreme Defence Council, P765, which

17     was held on the 6th of September of the same year, we can again take a

18     look at the conclusions, that is on page 2 in English and page 2 in

19     B/C/S.  Because in this order coming from this session, they are

20     discussing the need to specify, to give more precise explanation and

21     supplement paragraph 4 of the earlier session and the initiation of those

22     proceedings now sounds as follows, in place of the earlier point 4, and

23     then it says what it sounded like, the following text was adopted:

24             "Officers and non-commissioned officers who are found to have

25     aced in a professional and dignified manner and bear no responsibility

Page 14892

 1     for the events in the RSK which unfolded between the 4th and 14th of

 2     August, 1995, may selectively be assigned to appropriate units and

 3     institutions of the Yugoslav Army or to the 30th Personnel Centre."

 4             That was a conclusion taken by the Supreme Defence Council which

 5     General Perisic had to implement and also there is a point made there

 6     that they were not at that point in time members of the Yugoslav Army but

 7     they should be assigned to it.  In other words, the Supreme Defence

 8     Council adopts a conclusion that is binding on General Perisic in terms

 9     of those individuals who at that point in time are not within the Army of

10     Yugoslavia but are to be assigned to posts in various units.  And there,

11     as we can see, the only thing that is discussed is the crimes that they

12     had committed if they had committed them between the 4th and 14th of

13     August, 1995.  And that is what this decision of the Supreme Defence

14     Council refers to.  This was the case of Colonel Bulat.  He was not

15     assigned to any post or any duty in the Army of Yugoslavia.  There were

16     certain crimes that are discussed here that had to do with his surrender

17     of his corps and that is what this relates to, for the period of time as

18     mentioned.

19             Now, you have to bear another thing in mind.  At that time

20     between August and November, December, the Republic of Serbian Krajina

21     and the Army of the Republic of Serbian Krajina no longer existed.  The

22     military courts no longer existed, nor any military disciplinary courts

23     in the Krajina, unlike the Serbian system where --

24             THE INTERPRETER:  Interpreter's correction:  Unlike the RS.

25             MR. LUKIC: [Interpretation] Where both the military, judiciary

Page 14893

 1     and the military functioned throughout the end of the war.  So let me

 2     conclude on this topic.  In terms of the individuals that the Prosecutor

 3     said were his subordinates, General Perisic did not have the mechanisms

 4     to take disciplinary measures which he had under the Law on the Army of

 5     Yugoslavia.  The cases that the Prosecutor has shown here had to do

 6     exclusively with those matters where he took action pursuant to orders

 7     from the Supreme Defence Council of Yugoslavia.

 8             I will add one more thing, and that has to do with command

 9     responsibility.  I will discuss briefly the mechanisms of preventing

10     crimes from being committed.  The Prosecutor claims that General Perisic

11     had the mechanisms to prevent the alleged subordinates from committing

12     the crimes because he could order them to return to the Army of

13     Yugoslavia.  Paragraph 786.  Now, please take a look at this paragraph.

14     In this paragraph again, the Prosecutor actually highlights and supports

15     our thesis that those individuals not in the Army of Yugoslavia.  But let

16     us see whether General Perisic had any mechanisms to issue any orders to

17     the members of the 30th or 40th Personnel Centre to return or to be

18     returned to the Army of Yugoslavia.

19             In the absence of evidence to support this thesis, the Prosecutor

20     refers to evidence which he misinterprets and also misquotes in addition

21     to that.  The Prosecutor speaking of the mechanism of effective control

22     where he discusses the transfers and appointments, in paragraph 785 of

23     his brief, the Prosecutor says the following, and I will read this out in

24     English:

25             [In English] "Perisic's authority to transfer and appointment VJ

Page 14894

 1     members to the VRS and SVK, and his exercise of it was indispensable

 2     life-line that sustained the vitality and viability of VRS and SVK.  As

 3     Mladic informed Milosevic, quoting, 'the assistance of FRY," and then

 4     three full stops, "the army was invaluable.  It will be difficult to

 5     imagine a course of events if it had not been for that assistance.  It

 6     was comprehensive.'"

 7             Sorry.  Now, when the Prosecutors quoted in this paragraph the

 8     words of General Mladic quoting this sentence, it quoted Exhibit P2710.

 9     Now, let us take a look at this exhibit and see what it really says.  Can

10     we have P2710 on the screens, please.  This is General Mladic's letter

11     addressed to President Milosevic on the 17th of December, 1995, after the

12     signing of the Dayton Accords.  And the sentence that was quoted by the

13     Prosecution in its final brief as I read it out a little earlier, we can

14     see it here, a reference to it here at the very beginning.

15             "Mr. President, all this time of war, the assistance of the

16     Federal Republic of Yugoslavia and especially Serbia and your own

17     personally to Republika Srpska and the army was invaluable.  It would be

18     difficult to imagine the course of events if it had not been for that

19     assistance.  It was comprehensive, and basically, timely."

20             Now, if you read out the entire document, and I know that you

21     will do it with due care, there is no mention whatsoever here of the

22     Army of Yugoslavia, the army that is mentioned is the Army of Republika

23     Srpska and yet we have the words and the quotations as used by the

24     Prosecutor in the final brief and you can judge it for yourself where he

25     is referring to this document as being a reference to the Army of

Page 14895

 1     Yugoslavia.

 2             Now, I would like you to put this in the same context that

 3     Mr. Guy-Smith mentioned two days ago when he discussed the importance of

 4     the treatment of the context.  So please bear this example in mind as

 5     well.  But let us now go back to the main topic.  This is something that

 6     the OTP submitted and has to do with this exhibit.  Now, the topic is,

 7     could General Perisic have orders for the members of the Army of

 8     Yugoslavia as they put it and as we put it, members of the VRS to be

 9     taken back to the VJ ranks and to be -- to issue orders to that effect

10     and that should prove the control mechanism.  And what we are dealing

11     here is with food and flour.  Nowhere in the document is there any

12     mention of any army.  It is only the necessities and needs on the part of

13     Republika Srpska that are mentioned here.

14             The OTP have put forth an entire body of evidence -- or actually,

15     have ignored an entire body of evidence about the procedures and

16     authorities to bring about the return of personnel to the VJ, and this is

17     something that I mentioned yesterday.  An officer who wanted to return to

18     the Army of Yugoslavia could have done so only with the approval and

19     consent of his superior officers within the VRS, and General Perisic

20     could not issue any orders in that context whatsoever.  The evidence that

21     the Prosecution relies upon in support of this thesis are documents about

22     a procedure which was set up and that was operational, but these were

23     final orders, naredba, which were as virtual as the orders that we

24     referred to yesterday, the orders on transfer, which were important to

25     have their status regulated.  But they always stemmed from the procedure

Page 14896

 1     itself, which was that the Main Staff of the Army of Republika Srpska,

 2     and that's what we are interested most in here, when we are talking about

 3     the provision of the officers corps and control mechanism, as well as the

 4     army of the SRK.  I think that they were invoking the document involving

 5     Babic and Republika Srpska.

 6             They were taken out of context.  I don't have the paragraph here

 7     at hand, but this was something that the Prosecution relies upon in

 8     supporting their thesis of the control mechanism, and they had to do with

 9     the documentation relating to Officer Babic, but taken in isolation, they

10     cannot lead to a reasonable finding that there was anything that could be

11     done on the part of the Army of Yugoslavia.  And this is something that

12     should be viewed together with Article 33 of the instructions governing

13     the work of personnel centres that were mentioned yesterday, as well as

14     the testimony given by witnesses who were involved in this process.  We

15     had two witnesses to that effect and both Skrbic and Malcic testified to

16     the mechanism as it was and which had to work solely with the consent of

17     the Main Staff.  And Skrbic referred to the very rigid position by

18     General Mladic as to who would be allowed to return to the Army of

19     Yugoslavia.  All those who left the VRS ranks without that consent,

20     without that approval, were regarded as deserters, and that was the case

21     of Antic and Vujic, if you recall.

22             I will not be discussing this evidence because you have seen the

23     submissions on the part of the Prosecution, we've given you our

24     submissions in our final trial brief.  I cannot add to anything more than

25     that.  Can we move into private session for a moment, please.


Page 14897

 1             JUDGE MOLOTO:  May the Chamber please move into private session.

 2                           [Private session]

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19                           [Open session]

20         THE REGISTRAR: We are back in open session, Your Honours.  Thank you.

21             JUDGE MOLOTO:  Thank you very much, Mr. Registrar.

22             Yes, Mr. Lukic.

23             MR. LUKIC: [Interpretation] On the other hand when we are

24     discussing the orders and transfers which I continue submitting were

25     virtual, and I explained to you yesterday why I am of this view, there is


Page 14898

 1     another example, a fact that I would like to remind you of.  This is the

 2     testimony of a witness who himself experienced one such administrative

 3     order and described his response to it.  General Novakovic testified that

 4     he had refused the decree issued by President Lilic in 1991, appointing

 5     him to a position within the VJ, that of the assistant Chief of General

 6     Staff for ground forces.  When we showed him this entry in his personnel

 7     file, an entry that does exist in his personnel file, he simply said, at

 8     page 13278, he said that he had told President Lilic that he would not accept

 9     that appointment.  And what happened?  Nothing.

10             Is that an example of subordination?  What sort of -- which

11     argument in this part of testimony, which was not challenged by the

12     Prosecution in that portion, would the Prosecution offer of an officer

13     saying no to his purported superior – President Lilic being precisely

14    that in relation to General Novakovic - and bearing no consequences for it

15     and then what, the superior would say, very well, I will not be asking

16     anything more of you.  Sorry.  Would that be what they would say?

17             So, when it was asked by the SDC that members of the

18     40th Personnel Centre, after the fall of the RSK, should report to the

19     30th Personnel Centre, this was P798 and P766, witness Novakovic, General

20     Novakovic at the time, was asked to do so, he refused. And this was found

21     interesting by the presiding judge and asked for an additional answer as

22     to whether there were any consequences borne by him because there was the

23     constant transfer of personnel.  He answered, at page 13349, that he bore

24     no consequences whatever in relation to that.

25             So what sort of a finding can you make on the basis of evidence?

Page 14899

 1     Well, most certainly you cannot conclude that Perisic was able to order

 2     anyone to return to the VJ.  Nor that any of the senior officers, and I

 3     mean the senior officers from the 30th and 40th Personnel Centres, were

 4     aware of the fact that they could do so themselves, that's to say, return

 5     to the ranks of the VJ without having obtained prior approval from their

 6     superiors within the VRS.  They knew that if they took such steps that

 7     they would be liable to disciplinary procedures within their armies.

 8     That's to say, VRS and the SVK.

 9             Let me make my final findings concerning command responsibility.

10     The Prosecution did not prove beyond a reasonable doubt that any of the

11     elements of this responsibility were present and that primarily there

12   existed the superior-subordinate relationship that I referred to yesterday,

13     the other elements we dealt with in our final brief.  There was no

14     superior-subordinate relationship between General Perisic and those that

15  the Prosecution indicated as perpetrators of crimes and as his subordinates.

16             Another point that I would like to make before I move to my final

17     thesis, and that's P2879, and that's the video-clip of an interview, I

18     think it was the vice-president of Republic of Serbia at the time,

19     General Perisic, this was sometime in 2000.  You saw him in civilian

20     clothing there.  But you have to review the entire clip.  It covered the

21     latter period of the dissolution of the SFRY and JNA.  It covered this

22     long period of disintegration from the start of the conflict to the end

23     of the conflict in Kosovo, I believe.

24             This is an edited TV show with many participants who spoke of

25     various topics and events.  They talk without having any questions put to

Page 14900

 1     them.  There is no proper course of the conversation.  You could actually

 2     fall into a trap of arriving at conclusions that could be highly

 3     unreliable.  We cannot conclude on the basis of this interview as to what

 4     specifically General Perisic was asked about and what period he was

 5     discussing.  This sort of evidence should be dealt with carefully because

 6     their probative value is highly limited.

 7           I would like to move on to my final stage of submission, so perhaps

 8     we should take our break a bit earlier.  I will not take much more time.

 9             JUDGE MOLOTO:  This last point that you introduced, P2879, you

10     referred to as a video-clip and I've been pressing in and out of here

11     trying to get a video-clip.  On the contrary, I see a document here which

12     I do not think you have spoken to before.  Is it the document you are

13     talking about or is there a video-clip that we are going to be looking

14     at?  This document that you say we must --

15             MR. LUKIC: [Interpretation] I think that Mr. Harmon made a

16     mistake in the number of the document.  That's where the confusion

17     perhaps arose from.  The exhibit I'm referring to is P2879 and the number

18     we have is in the transcript is P2873.  The exhibit is in fact a

19     transcript of the entire show that you viewed.  It's a transcript.  It's

20     a transcription of the TV show.

21             JUDGE MOLOTO: [Microphone not activated]

22             MR. LUKIC: [Interpretation] No, no, it's not a video.

23             JUDGE MOLOTO:  So what is it you want us to look at, the video

24     show, or ... ?

25             MR. LUKIC: [Interpretation] Well, if you only view the TV show

Page 14901

 1     without referring to the transcript, you won't be able to fully

 2     understand because I don't think it has got all of the subtitles it

 3     should have.

 4             JUDGE MOLOTO:  Now, let's get things clear.  The transcript is

 5     P2879.  What is this transcript's exhibit number?

 6             I see Mr. Harmon on his feet.

 7             MR. HARMON:  Perhaps I could be of assistance.

 8             JUDGE MOLOTO:  Yes, please.

 9             MR. HARMON:  The video and the transcript.  Exhibit P2879 is the

10     video and the transcript.

11             JUDGE MOLOTO:  The transcript.  Okay.  Thank you, sir.  We'll

12     take the break.  Is that convenient for you?  We'll take the break and

13     come back at quarter to 11.00.  Court adjourned.

14                           --- Recess taken at 10.14 a.m.

15                           --- On resuming at 10.46 a.m.

16             JUDGE MOLOTO:  Mr. Lukic.

17             MR. LUKIC: [Interpretation] Your Honours, we heard many

18     submissions from the Prosecution about Perisic's alleged support of the

19     war and especially about his actions which contributed to the crimes

20     themselves.  We assert that this is not true and that this has not been

21     proven.  It is not a crime to assist in waging a war, and this is

22     something that Mr. Guy-Smith referred to in his submissions, however

23     horrible a thing war itself is.  General Perisic headed the VJ General

24     Staff in the most difficult years in the time of crisis in the former

25     Yugoslavia, when the FRY was isolated under sanctions and exposed to

Page 14902

 1     constant attempts to be drawn into the war by alleged friend and foe.

 2     Under the constitution and in law, Perisic had the task of protecting the

 3     security and territorial integrity of the country and he did carry out

 4     his professional obligation.  To the regret of many, the Federal Republic

 5     of Yugoslavia was not drawn into the war, nor did the Army of the Federal

 6     Republic of Yugoslavia participate in the war at the time he was the

 7     Chief of the General Staff.

 8             Certain elements of the Special Units Corps did take part in

 9     Operation Pancir 2 in the area of Sarajevo in December and January,

10     that's to say, December 1993 and January 1994, but this was an isolated

11     case and in our submission the presence of the unit in Vogosca did not

12     have anything to do with the crimes which were committed at the time and

13     there is nothing to prove that they did have to do anything with them.

14             The Prosecution ignores many actions taken by General Perisic

15     during and after the war and which were directly related to the wish that

16     peace be established, further human victims be avoided, and new conflicts

17     be prevented from emerging.  You cannot ignore it.  I will mention only

18     several events and certain evidence indicating what it was and how

19     General Perisic worked.  Perisic should take most of the credit for the

20     fact that around 1.000 Muslims and their troops who had swam across the

21     Drina River fleeing Zepa on the 1st and 2nd August, 1995, finding refuge

22     in the FRY, for receiving those, some of whom expressed a wish to move on

23     to other countries and ones who remained as refugees within the FRY.

24             Whatever the attempts to ignore this or to misinterpret the fact

25     that Perisic did everything in respect of these people who sought refuge

Page 14903

 1     in the FRY to keep them within the FRY rather than have them return to

 2     the place they fled.  Look at testimony by Witness Borovic at transcript

 3     page 14003 and this, among other things, was the trigger that prompted

 4     Milosevic to send a letter to both Mladic and Alija Izetbegovic to ask

 5     them to stop the war and the trigger was in fact this incident where

 6     people swam across the Drina River and this is in Exhibit D490 and 489.

 7             As for Perisic's role in the liberation of the French pilots and

 8     liberation of the French hostages, Medecins Sans Frontieres, you heard a

 9     great deal about it.  You heard the Prosecution's interpretation of the

10     evidence as well as the Defence's.  I will not add to this further since

11     Mr. Guy-Smith spoke of the significance that the freeing of the French

12     pilots had internationally.  When we spoke of influence and control in

13     our final brief, we explained to what direction his actions tended when

14     he dealt with General Mladic and what sort of role this had in the war

15     itself.  General Clark -- and this is what expert Treanor mentioned in

16     his expert report P375 paragraph 240 where he said that at the meeting

17     with Tudjman and Holbrooke, Clark said that Perisic in his view had --

18     was unable to exert influence over Mladic.

19             Perisic, throughout his tenure at the head of the General Staff,

20     was afraid of the reactions the conflicts might have in

21     Bosnia-Herzegovina and Croatia and the bearing it might have on the

22     stability of the FRY.  To gain an insight into this, you can look to many

23     minutes of the SDC meetings where Perisic spoke of the various problems,

24     of the potential for the conflict to spill over into the FRY, and of the

25     problem which arose at the time which was that of Kosovo.  Unfortunately,

Page 14904

 1     his foreboding proved true, the war in Kosovo occurred in 1999, and you

 2     also heard evidence to the effect of his role in fighting for -- in

 3     asking that the war be averted.  He didn't want the war in Kosovo.  He

 4     feared it and saw it coming.  That's why he signed the agreement with

 5     General Clark.  This is D752, about agreeing to the arrival of

 6     international observers in Kosovo.  He was still the Chief of the General

 7     Staff.  He did this because he knew what might happen if the entire

 8     international community turned against them.  A moment ago I read out

 9     Milosevic's words from a meeting in 1995 about his fears as to what would

10     become of Bosnia-Herzegovina if the entire international community turned

11     against it and why was it that Milosevic -- that these words slipped his

12     mind when he was contemplating the war in Kosovo.

13             Because of this attitude of his towards the participation of the

14     army and the war in Kosovo and avoiding the spread of conflict,

15     Milosevic, under quotation marks, rewarded Perisic by dismissing him and

16     even initiating criminal proceedings against him.  Demoting him

17     altogether.

18             I would like to refer to an episode that occurred while Perisic

19     was still Chief of General Staff and this was the focus of attention.  We

20     saw how many times he clashed with Milosevic.  We saw the episode with

21     General Boro Ivanovic, and this is directly linked to the evidence.

22     However, there was something that happened in public for the first time,

23     he took a position in relation to Milosevic's policy.  General Perisic

24     expressed that in 1997 during the so-called student protests.  Perhaps I

25     am a bit partial when I say this, and a Defence attorney should not be

Page 14905

 1     partial, we have adduced evidence showing that General Perisic did not

 2     allow the army to interfere in any way in that conflict between Milosevic

 3     and those who were protesting and both the students and the opposition

 4     and the democratic public in the FRY and worldwide supported that.

 5             As for Milosevic, he distanced himself from him very clearly in

 6     public.  This move was supported by the students who were protesting, of

 7     course, the democratic opposition in Serbia, in the Federal Republic of

 8     Yugoslavia at the time.  I think that by then it was the State Union of

 9     Serbia and Montenegro.  It was the first time that this came to the fore,

10     this relationship between Milosevic and Perisic, and the international

11     community recognised that.  We wrote about that in our final brief and we

12     see all these moves that he took, and we are closing the circle by saying

13     that when General Perisic was a member of the federal parliament of

14     Serbia and Montenegro, he voted in favour of changing laws and

15     regulations concerning co-operation with The Hague Tribunal, making it

16     possible to have citizens of the country sent to The Hague Tribunal,

17     those who were suspects and who were indicted.

18             Mr. Perisic was the only one who then knew that he might be here

19     before you, but he nevertheless voted in favour of that law and in having

20     his fate put into your hands.  Then, in his public statement concerning

21     his voluntary surrender, he said that there was no dilemma in his mind as

22     to whether he would appear before this Tribunal, because he said that

23     that was the only way in which he would defend his honour, the reputation

24     of the army, and the dignity of the people.

25             In his introductory remarks when this trial started, he stated

Page 14906

 1     that he was confident that without prejudice, professionally and

 2     carefully you will reach an honourable and fair judgement.

 3             Your Honours, you are to assess these words of his.  Without

 4     prejudice that, and all of us who interpret the facts and events are full

 5     of prejudice.  This should be done professionally and in the spirit of

 6     what the international community has entrusted you with, accepted

 7     standards in assessing innocence or responsibility.  This is the priority

 8     of your task.

 9             Only after a judgement is reached in this way, can the

10     international community face the other part of the mandate that was given

11     to this Tribunal, justice for the victims and the return of trust among

12     the peoples in the territory of the former Yugoslavia.  That has to be

13     the order taken, the sequence of events that should follow.  First, the

14     truth should be established, facts beyond a reasonable doubt.  I am going

15     to use a social, a societal term, it is the truth that has to be your

16     priority because on the basis of the truth, there can be justice for the

17     victims and it is only through justice for the victims that there can be

18     reconciliation for the peoples of the former Yugoslavia.  If you

19     establish the truth and if you free all of us of prejudice, all of us

20     from the former Yugoslavia, then you would have accomplished your

21     mission.

22             We believe that General Perisic defended his honour before this

23     court, the reputation of the army, and the dignity of the people.  That

24     is why we ask that he be acquitted of all charges in all counts of the

25     indictment.


Page 14907

 1             Thank you for having given us this opportunity of making our

 2     closing arguments.  Thank you.  I'm prepared to answer any questions you

 3     may have now.

 4             JUDGE MOLOTO:  Thank you very much, Mr. Lukic.

 5             Mr. Harmon, any rebuttal?

 6             MR. HARMON:  Yes, Your Honour, we have a few submissions.  It

 7     won't take long but we need the podium moved from the Defence side.

 8     Thank you.  And the way we will proceed, Your Honours, is Ms. McKenna

 9     will make submissions first, Mr. Thomas will go next, and I will

10     conclude.

11             JUDGE MOLOTO:  Thank you very much.

12             Madam McKenna, good morning to you.

13                           [Prosecution Rebuttal]

14             MS. McKENNA:  Good morning, Your Honours.  I'll be making two

15     brief submissions in rebuttal.

16             Firstly, the Defence conflates the basis for Article 7(1)

17     liability and Article 7(3) liability.  The issue of whether a

18     superior-subordinate relationship existing between Perisic and the

19     members of the personnel centres is relevant only to a Article 7(3)

20     analysis.  Equally, the issue of whether personnel centre members were

21     part of the VJ chain of command has no relevance to an assessment of

22     Perisic's liability under Article 7(1).  The Defence conflates these

23     issues.  Throughout Mr. Lukic's submission on Perisic's liability under

24     Article 7(1) for the provision of personnel, he discussed whether the

25     personnel centre members remained within the VJ chain of command.  So for

Page 14908

 1     example, at T-14802, line 1 and onwards, with reference to the officers

 2     transferred to the VRS, he stated that "from that moment onwards, they

 3     became part of that single chain of command.  They had their own oath and

 4     they had their own superiors.  They were part of a functioning army

 5     within their chain of command established by law."

 6             He then went on to undertake a detailed review of VRS documents

 7     relating to the appointment of certain officers to particular posts

 8     within the VRS, in support of the Defence proposition that those officers

 9     were solely within the chain of command of the VRS.  And I will return to

10     this issue of appointment in my second submission.

11             But under Article 7(1), the relevant issue is whether Perisic

12     provided assistance which had a substantial effect on the crimes

13     committed.  In the Prosecution's submission, this assistance included

14     personnel, the provision of personnel through the personnel centres.

15     However, an inquiry into whether the chain of command between Perisic and

16     members of the personnel centres was broken when they were serving in the

17     VRS, whether they were under a dual chain of command while they were

18     serving there, or whether Perisic continued to be their superior while

19     they were in Bosnia-Herzegovina is relevant only to an examination of

20     Perisic's liability under Article 7(3).  In the Prosecution's submission,

21     by maintaining and sustaining the VRS officer corps through the personnel

22     centres, including by ensuring that the officers' status rights will be

23     fully protected and enjoyed while they were serving outside the FRY by

24     the effective regulation of those officers' service, thereby assuring the

25     officers of their livelihood and assuring the VRS command of a solid


Page 14909

 1     command structure, Perisic's acts had a substantial effect on the crimes

 2     alleged.

 3             Turning to my very brief second submission, and this relates to

 4     appointments.  The Defence stated with reference to the Prosecution brief

 5     and the Prosecution closing arguments, that it was the Prosecution claim

 6     that Perisic had the authority to appoint within the VRS itself.  And

 7     that's at T-14831, line 23 and following.  The Defence misunderstands the

 8     Prosecution position.  As stated in the Prosecution's closing arguments,

 9     at lines T-14698 and following, the Prosecution does not dispute that the

10     VRS and the SVK made the majority of decisions as to assignment to duty

11     within those armies, and that the duties to which those officers were

12     assigned in the personnel centres reflected the decisions that had been

13     made by the VRS and the SVK commands.  And if I may move very briefly

14     into closed session, Your Honour.

15             JUDGE MOLOTO:  Closed or private?

16             MS. McKENNA:  Sorry, private session.

17             JUDGE MOLOTO:  May the Chamber please move into private session.

18                           [Private session]

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 14910

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6                           [Open session]

 7             THE REGISTRAR:  We are back in open session, Your Honours.  Thank

 8     you.

 9             JUDGE MOLOTO:  Thank you so much.

10             Yes, Madam McKenna.

11             MS. McKENNA:  The paragraph of the Prosecution brief, paragraph

12     183 to which the Defence referred in its submission, reads:

13             "Having transferred VJ officers to the personnel centres, the VJ

14     also regulated internal appointments to different units within the VRS

15     and the SVK ensuring the effective functioning of the personnel centre

16     system."

17             Your Honours, for the avoidance of any confusion, the Prosecution

18     does not suggest that Perisic made appointments within the VRS or the

19     SVK.  Rather it is the Prosecution's submission that while the VRS and

20     the SVK made determinations as to appointments to particular duties

21     within those armies, in accordance with their needs of service, Perisic

22     and the VJ had the ultimate authority as to whether an individual

23     returned to the FRY.

24             And contrary to Mr. Lukic's suggestion this morning, this was

25     discussed -- this issue was discussed in the Prosecution's closing


Page 14911

 1     submissions on Monday and is also discussed in the final brief, in the

 2     Prosecution's brief at paragraphs 190 to 193.

 3             Your Honours, unless you have any further questions, that

 4     concludes my submissions.

 5             JUDGE MOLOTO:  Thank you, Madam McKenna.

 6             MS. McKENNA:  Thank you, Your Honours.

 7             JUDGE MOLOTO:  Mr. Thomas.

 8             MR. THOMAS:  Thank you, Your Honours.  I'd like to discuss

 9     briefly, Your Honours, a point made by my learned friend Mr. Lukic

10     yesterday, elements of which have emerged again in his submissions to you

11     this morning.  A position that he took yesterday was that under the VJ

12     law, under the law of the army, personnel transferred to the VRS or the

13     SVK did not come under the responsibility of the VJ any longer, as they

14     had been assigned outside of the VJ and that therefore as a result,

15     Perisic did not have any obligation to discipline them if the need arose

16     or to otherwise carry out the duties of a superior.

17             The position adopted by the Defence was that in respect of such

18     individuals assigned outside of the VJ, that if anyone besides the army's

19     concerned, that is, the VRS and SVK had that responsibility, it was the

20     Ministry of Defence.  That position misunderstands the Law of the VJ and

21     it misunderstands the evidence relating to it.  And what I would like to

22     do, Your Honours, is to go through the parts, the transcript references

23     and state the Prosecution's position in relation to each of the

24     propositions made by my learned friend and once I've done that, I will

25     take Your Honours to the relevant legal provisions.

Page 14912

 1             But before I do, Your Honours, as a -- as a brief introductory

 2     point, it is trite after all of the evidence that we have heard that the

 3     Law of the VJ did not contemplate the sending of VJ officers to another

 4     army.  It does not provide for that.  It simply does not contemplate it.

 5     Those are what the provisions of the Law on the VJ state, and the

 6     evidence in relation to those provisions, Your Honours, is discussed in

 7     paragraph 172 of the Prosecution's final trial brief.

 8             What the Law on the VJ did permit was for the Chief of the

 9     General Staff to make assignments of VJ officers to units or

10     organisations outside of the VJ, including the Ministry of Defence, but

11     not limited to the Ministry of Defence.  The Law of the VJ, as I said,

12     did not extend to sending officers to another army.  General Perisic knew

13     that, that's what he told the SDC when advocating for the formation of

14     the personnel centres themselves.  It was because of the complete absence

15     of any legal basis to send officers to these armies that we have the

16     personnel centres being advocated for in the first place.  The benefits

17     of those centres have been described in various ways, but one of the

18     reasons for their genesis lay in the absence of any legal basis for what

19     the FRY, the SDC, General Perisic were proposing and what they had been

20     doing up until that point when he became Chief of the General Staff of

21     the VJ.

22             So if I move -- before I move, Your Honours, to the transcripts,

23     having created the personnel centres, the difficulty arose as to how to

24     legally categorise and classify these particular individuals for, amongst

25     other thing, the application of the law.  How was the Law on the VJ to

Page 14913

 1     apply to these officers.  How were the regulations and laws relating to

 2     the regulation of status, promotion, other service rights, all things

 3     that that apply to all servicemen supposed to apply to these people who

 4     now had been transferred out of the FRY into Bosnia or Croatia, in

 5     contravention of the law or in the absence of any express provision

 6     regulating that in the Law of the VJ.  The response of the courts, the

 7     response of the VJ itself was to categorise these individuals as VJ

 8     members who had been assigned outside of the army.  That is the language

 9     used throughout the military court decisions.  That is the language

10     described throughout the military court decisions that we have seen

11     tendered in this case.

12             JUDGE MOLOTO:  Mr. Thomas, do you have a glass of water in front

13     of you.

14             MR. THOMAS:  Actually something else, Your Honours, may I just

15     have a moment.

16             The language used in the decisions of the supreme military courts

17     and other decisions is that these persons were governed by the laws

18     relating to VJ servicemen, because they were to be considered members of

19     the VJ who had been assigned outside the army of the VJ, who had been

20     assigned outside the VJ.  And that is a term of art.  It is a legal term

21     of art that is drawn from the Law of the VJ itself.  It is language that

22     is also used by General Nikolic, the systems and status related issues

23     chief from the FRY MOD when he testified, and this was a position that

24     the VJ itself before those military courts never challenged.  It was

25     agreed and all of those proceedings resulting in all of the judgements

Page 14914

 1     that Your Honours have been provided with during the course of this

 2     trial, it was agreed by the VJ that these officers were VJ members

 3     serving outside the VJ, that that is the status that they enjoyed in

 4     terms of being able to classify them under the Law of the VJ.

 5             I'd like to directly answer individual propositions made by my

 6     learned friend before going to those provisions, Your Honour, and

 7     Mr. Registrar, if it is possible, I wonder if we could have yesterday's

 8     transcript, T-14811, at line 25 on the screen.

 9             Now, Your Honours, if you go to line -- if we can go to line 25,

10     right.  Mr. Lukic says at that point:

11             "Even if they had been," and we are talking about the officers in

12     the 30th and 40th Personnel Centres, "even if they had been members of

13     the VJ serving outside the VJ, they were no longer part of their chain of

14     command.  The army of -- the Law of the Army of Yugoslavia which is

15     Exhibit 197, stipulates that precisely ..."  Let me be very clear.  It

16     does not stipulate that.

17             On the next page at line 7:  "The Law on the Army of Yugoslavia

18     is quite precise in respect of the status and rights and obligations of

19     those serving outside the VJ."  Yes, we are agreed.  It is, in respect of

20     the rights and obligations of those termed as serving outside the VJ.

21     "They were definitely outside the chain of command of the Army of

22     Yugoslavia under Article 8(2) of the law."  No, that is incorrect,

23     Your Honours.  The only people who could possibly fall into that

24     category, because they were expressly provided for in this respect, were

25     VJ officers assigned to the Ministry of Defence.

Page 14915

 1             "Those outside -- sorry, "Those serving outside the VJ," the next

 2     line, "they had the same rights and obligations as if they were members

 3     of the army unless provided otherwise by the law."

 4             Well, there was no provision otherwise in respect of people

 5     serving in the 30th and 40th Personnel Centres, and yes, we agree that

 6     they had the same rights and obligations as if they were members of the

 7     army.

 8             If we move to page 812, line 20, please.  It's there on the

 9     screen.

10             My learned friend said:  "The Law on the Army of Yugoslavia,

11     Your Honours, has to do with the commanding officers serving outside the

12     VJ, regulating their status in relation to their promotion, appointment

13     to duty, transfer, and termination of service ..."

14             Yes, up to that point we agree with that submission.

15             "... defining that these aspects lay solely with the Ministry of

16     Defence."

17             Absolutely not.  It lay with the Ministry of Defence only in

18     respect of servicemen assigned specifically to the Ministry of Defence.

19             "The Army of Yugoslavia" -- sorry, the next line down,

20     Your Honours, "The Army of Yugoslavia has no input including the

21     General Staff and its chief."

22             In relation to those assigned to the MOD, that is correct.  In

23     respect of everybody else, that is mistaken.

24             Page 813, line 5:  "If a VJ officer is serving outside the VJ,

25     all of the aspects of his service were exclusively in the remit of those

Page 14916

 1     who were in charge of the armies where they served, not the VJ.  That is

 2     stipulated by the law."

 3             Well, obviously Mr. Lukic couldn't cite to any such provision.

 4     It doesn't exist in the Law of the VJ, which does not contemplate

 5     anything of the sort.

 6             Page 813, line 11:  "The Army of Yugoslavia is competent to

 7     initiate disciplinary procedure only vis-a-vis those people who are

 8     within the chain of command of the Army of Yugoslavia."

 9             Yes, agreed, but the position that Mr. Lukic has miscalculated is

10     that those who are assigned, VJ members who are assigned outside of the

11     VJ including the 30th and 40th as they were treated, still fall within

12     this category under law.  Disciplinary responsibility is retained by the

13     VJ and I will demonstrate that in a moment, Your Honours.

14             "In respect of the individuals who are outside the chain of

15     command of the Army of Yugoslavia, for instance, the law refers to the

16     Ministry of Defence, Article 181 confers the sole responsibility for the

17     initiation of a disciplinary procedure upon the Ministry of Defence."

18             Only, only, Your Honours, in respect of VJ servicemen assigned to

19     the MOD.  In respect of everybody else, that disciplinary responsibility

20     is retained by the army.

21             So, let me take you to just several of these provisions which can

22     illustrate that for you.  If we could have P197 on the screen, please,

23     Mr. Registrar.  I'm looking, please, first of all for Article 8, which is

24     on page 3 of the English and page 2 in the B/C/S.  Page 3 in the English,

25     sorry, Mr. Registrar.  Your Honour, this article, Article 8, is the

Page 14917

 1     provision which states for us that service in the VJ includes service

 2     outside of the VJ.  It's referred to in the second paragraph of Article 8

 3     which reads:

 4             "Service in the army shall also include military and other duties

 5     in the Federal Ministry of Defence, other state organ, company or other

 6     organisation performed by professional members of the army assigned there

 7     by an order of an authorised officer (hereinafter assignments outside the

 8     army)."

 9             Service in the army shall include assignments outside the army.

10     Now, as I've said, there's no express inclusion of transfer to another

11     army, which of course, is not contemplated for a moment by this law.  But

12     for the purposes of this law, the VJ and the courts, as I've already

13     identified, treated 30th and 40th Personnel Centre officers as officers

14     assigned outside the army or serving outside the army.  Under Article 8,

15     that is service in the VJ.  So we begin there.

16             If we could go to Article 152, please.  And, Mr. Registrar, that

17     is on page 38 of the English and page 13 of the B/C/S.  Now, Article 152,

18     Your Honours, regulates the number of tasks or responsibilities of the

19     Chief of the General Staff and commanding units, promotion, appointments

20     and so on, matters relating to the service of an individual.  But

21     paragraph 5 states that the Chief of the General Staff shall "decide on

22     the assignment of professional members of the army to duties outside the

23     army, while assignment to the Federal Ministry of Defence shall be

24     carried out at the request or with the approval of the Federal Minister

25     of Defence, or a commanding officer authorised by him."

Page 14918

 1             So we have for the first time the special category created of an

 2     assignment to the Federal Ministry of Defence as opposed to an assignment

 3     to any other duty outside of the VJ which remains within the sole remit

 4     of the army.

 5             We go from there, Your Honours, to Article 158, which is on page

 6     39 of the English, and I expect the next page in the B/C/S.  Now, under

 7     Article 158, the ability of the MOD to regulate status or make decisions

 8     relating to the service of officers outside the army as claimed by my

 9     learned friends is specifically limited to those who have been assigned

10     to the Federal Ministry of Defence.

11             "Authorisation from Article 152 of this law to decide on service

12     relations of professional soldiers and civilian personnel assigned to the

13     Federal Ministry of Defence, shall be carried out by the Federal Minister

14     of Defence."  That is the limit of the federal minister of defence's

15     ability to decide on the service of anyone serving outside the VJ.  VJ

16     officers serving in the Federal Ministry of Defence only.

17             If we move, Your Honours, to Article 53.  And, Mr. Registrar,

18     that's on page 13 in the English and page 5 in the B/C/S.  Now, this

19     provision, Your Honours, establishes that, to all intents and purposes,

20     there is little difference, none, between an officer, a VJ officer

21     serving in the VJ, and a VJ officer serving outside the VJ.

22             Article 53, the second paragraph:  "A professional officer or

23     non-commissioned officer assigned outside the army shall have the same

24     rights and duties of professional officers and non-commissioned officers

25     assigned to the army, unless otherwise stipulated by this law."

Page 14919

 1             And there is no such otherwise stipulate.  So VJ officers serving

 2     outside the army have the same rights and duties as VJ officers serving

 3     in a VJ duty or post.  Well, what happens if a VJ officer serving outside

 4     the army commits a disciplinary infraction or offence?  For that,

 5     Your Honours, we go to Article 159.  It's page 39.  Thank you,

 6     Mr. Registrar, you are way ahead of me.  Right.

 7             "A service member who violates military discipline in the

 8     performance of his service or in connection with the performance of his

 9     service shall be held responsible for disciplinary infractions or

10     disciplinary offences."

11             There is no distinction drawn in this provision between an

12     officer serving in the VJ, a VJ officer serving in the VJ or a VJ officer

13     serving outside the VJ.  Under Article 8 service in the VJ includes both.

14     So a service member under Article 9 -- under Article 159 is a service

15     member as defined by Article 8 which includes VJ officers serving in VJ

16     posts and VJ officers serving outside the VJ.

17             All right.  So once a VJ officer serving outside the VJ commits

18     an offence for which he is liability under VJ law, who has the

19     responsibility of disciplining?  Is it the Ministry of Defence or is it

20     somebody else?  And for that, Your Honours, we go to Article 181, which

21     states:

22             "The following individuals are authorised to bring the

23     perpetrator of a disciplinary offence before a military disciplinary

24     court:  In the Federal Ministry of Defence," so that's limited to the

25     Federal Ministry of Defence, "the federal minister of defence and

Page 14920

 1     commanding officers of the units directly subordinated to him."

 2             The only other alternative in the army, that is the VJ, army

 3     commander, or senior officer holding an equal or higher position.  So,

 4     Your Honours, there is no room, there is simply no room to interpret the

 5     Law on the VJ as saying, as my learned friend does, that somehow if you

 6     are assigned to a post outside of the VJ, that there is no longer

 7     authority over that person, disciplinary responsibility over that person,

 8     or that you are outside the VJ chain of command.

 9             Unless Your Honours have any questions for me, those are my

10     submissions.

11             JUDGE MOLOTO:  Thank you, Mr. Thomas.

12             Mr. Lukic, any rejoinder?  I beg your pardon, I'm sorry,

13     Mr. Lukic, my apologies.  Mr. Harmon, I apologise to you too.

14             MR. HARMON:  No problem, Your Honour, I accept them.  Thank you.

15             Your Honour, first of all, let me comment on Mr. Lukic's correct

16     assertion that Prosecution Exhibit 2710 is quoted out of context in

17     paragraph 785 of our brief.  I do accept that.  I apologise for that, but

18     I also note, Your Honours, that the Prosecution Exhibit 2710 is quoted

19     in, and the relevant portions of it are quoted in paragraph 78 and they

20     are quoted in the proper context in that.

21             Now, let me also address a point that Mr. Lukic made this

22     morning, and that is, as you recall, the beginning of my opening remarks,

23     I informed the Trial Chamber that we would not proceed further under

24     Article 7(3) failure to prevent in respect of the counts in Zagreb.  The

25     Defence this morning has submitted that this action by the Prosecutor


Page 14921

 1     undercuts our assertion that Perisic had effective control over

 2     General Celeketic and others.  The Prosecution's proper exercise of

 3     discretion and discharge of his responsibilities does no such thing.  And

 4     I would ask you when you consider, first of all, the facts relating to

 5     the events in Zagreb, and I need to go into private session for just a

 6     minute, Your Honour.

 7             JUDGE MOLOTO:  May the Chamber please move into private session.

 8                           [Private session]

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 14922











11  Page 14922 redacted. Private session.















Page 14923

 1   (redacted)

 2                           [Open session]

 3             THE REGISTRAR:  We are back in open session, Your Honours.  Thank

 4     you.

 5             JUDGE MOLOTO:  Thank you so much, Mr. Mr. Registrar.

 6             Yes, Mr. Harmon.

 7             MR. HARMON:  Your Honour, I would like to address Defence

 8     submissions that were made at page 14807 and 14808.  Those submissions

 9     that the Defence made were as follows:  That General Perisic attempted to

10     persuade members of the SDC that people who came from Bosnia and from

11     Croatia who did not want to fight for their homeland had no place in the

12     VJ.  Mr. Lukic says that General Perisic could not persuade members of

13     the SDC to accept such a firm position and when General Perisic's

14     proposal was rejected by the SDC, the Defence asserted the following:

15             "General Perisic lost his position of authority which would

16     enable him to order something to anyone to do anything."

17             Next:  "He lost his power to issue an order from his position of

18     superior to send anyone to the VRS."

19             And lastly:  "His order, therefore, did not have a binding

20     nature, a binding character."

21             Now, I'd like to explore the facts.  Your Honours have received

22     Prosecution Exhibit 709 which is the transcript of the 14th session of

23     the SDC and in the English version of that, Your Honour, I'm referring to

24     pages 32 to 36 of that, the context is this:  General Perisic had

25     submitted to the SDC a document in which he proposed to the SDC that


Page 14924

 1     people who did not want to serve in Croatia or in Bosnia should be

 2     expelled from the army if they refused.  Now, we submit, Your Honour, and

 3     in fact, Mr. Bulatovic who was a member of the SDC agreed with

 4     General Perisic.  He did, in fact, persuade the SDC of the position he

 5     was advocating.  They just didn't want the sanctions to be imposed on

 6     people who refused to go to the other armies to be so direct.  They

 7     wanted to indirectly sanction people for their refusals.

 8             As Mr. Bulatovic said in this text, he says that it was in the

 9     vital interests of the state not to elevate this.  He said, he discussed

10     the document that General Perisic had submitted to the SDC and he said,

11     "If this document were to fall in anybody's hands, it would keep us under

12     sanctions for ten years."

13             Mr. Bulatovic said, as a member of the SDC, "I am in favour of

14     applying certain restrictive measures to those who fail to respond to a

15     call-up to defend their people, but not in such a direct manner."

16             General Perisic responded on page 35 of the transcript that he

17     had found a way to solve the problem.  I will read General Perisic's

18     solution to the problem of what to do with people who refused orders to

19     go to the VRS or the SVK.  And this is at page 35:

20             "I have already issued an internal order that they are all

21     supposed to go there; whoever doesn't want to go has to find a mode; we,

22     too, have found the appropriate criteria.  For instance, if someone

23     doesn't want to go and has over 30 years of pensionable employment, we

24     can give him early retirement so that we are not accepting this.  We will

25     tell him that he is not performing his duties in a satisfactory manner

Page 14925

 1     and other things, but we won't write down that he did not want to go

 2     there.  So we won't give them any kind of legal stronghold.  However, we

 3     can rework this order," this is the document that I say parenthetically,

 4     this is the document that he had presented to the SDC for its

 5     consideration, "however, we can rework this order in all its other

 6     segments and submit it to the president, and just leave out the part

 7     related to their having to go.  We'll find another way of getting rid of

 8     them."

 9             Now, both the SDC, as I say, and General Perisic agreed that

10     people who didn't want to go should be out of the army.  It's just the

11     way in which that would be -- that problem would be resolved.  Now,

12     Your Honour, contrary to the Defence assertion, General Perisic did not

13     lose his position of authority as a superior to send someone to the VRS

14     or to the SVK.  That's simply not correct.  He did send people to the VRS

15     and the SVK.  That is in our brief, and I made some submissions on that

16     in my earlier remarks, where there are orders to transfer.  We saw an

17     order to transfer people from the various personnel centres back and

18     forth.  But he in fact did and he persisted in doing that throughout the

19     war to the end of the war.  So he did not lose his authority.

20             Next, contrary to the Defence position that his orders did not

21     have a binding effect, a binding character, it's our submission, first

22     off, that the Law on the Army, P197, Article 37, requires a member of the

23     service to follow an order.  If you don't follow an order, Your Honour,

24     it's a disciplinary offence.  And according to Mr. Starcevic, a

25     subordinate who received an order was required to obey it.  You'll find

Page 14926

 1     Mr. Starcevic's testimony at page 5463, lines -- well, 5463, Your Honour.

 2             Now, when I say the failure to follow an order was a disciplinary

 3     offence, I refer Your Honours to P197, Article 160, subpart (1).  It's

 4     our submission, contrary to the Defence submission, that none of

 5     General Perisic's legal authority was vitiated by the SDC's decision.

 6             Let me turn, Your Honour to another aspect of Mr. Lukic's

 7     submissions.  We had a discussion yesterday and today about context and a

 8     large amount of time was the discussion relating to the FRY's desire to

 9     have peace at some point in time.  And that point in time was when the

10     Contact Group had made a proposal and at that point in time we can see a

11     political divergence between the political leaders of the RS and the

12     political leadership of the FRY.  When the RS leaders rejected the

13     Contact Group plan, there was a shift in the attitude of the FRY

14     political leadership.  Milosevic was quite upset.  The FRY was under

15     sanctions.  According to the text we've seen, he wanted the RS leaders to

16     accept the peace plan.

17             Now, his -- as a result of the rejection of the peace plan, the

18     FRY introduced sanctions against the RS.  Those sanctions were introduced

19     on the 4th of August, 1994.  I have submitted in evidence Prosecution

20     Exhibit 222, Your Honour, and let me tell you what 222 is.  It is report.

21     It is an article from a newspaper reporting on the Drina River border

22     being closed and reports on the sanctions.  And what it says is, and I'll

23     read this:

24             "The Republika Srpska leadership by rejecting peace has committed

25     the worst act against the Federal Republic of Yugoslavia, the Serbian and

Page 14927

 1     Montenegrin people, and all other citizens living in these territories.

 2     Therefore, the federal government has decided to:  Cut political and

 3     economic ties with the Republika Srpska; ban Republika Srpska top

 4     officials (Assembly, Presidency, government) from FRY territory; the FRY

 5     border is closed for all shipments into Republika Srpska except food,

 6     clothes, and medicine."

 7             Now, Your Honour, this political set of factors that have been

 8     described by Mr. Lukic and which resulted in the sanction are quite

 9     interesting, but have little bearing on General Perisic's responsibility

10     under Article 7(1) for aiding and abetting by providing men and materiel

11     to the forces in the VRS.  I say that, Your Honour, because

12     General Perisic's assistance never did change in respect of the

13     assistance he rendered to the VRS.  The FRY border was closed.  The

14     assistance continued.  We've briefed that point in our final brief.  You

15     can find that at paragraphs 283 to 286.  The FRY continued to support the

16     VRS with a brief exception, that exception being that they stopped the

17     payment of salaries for a period of five months to the VRS, while at the

18     same time they continued to provide some support to the families of those

19     VRS personnel who were serving -- or those VJ personnel who were serving

20     in the Republika Srpska.  At the same time, Your Honour, when the FRY

21     salaries had been cut off, P851 shows that General Perisic sent

22     General Mladic 500.000 dinars to assist in the payment of salaries.

23             Now, we also had, Your Honour, a reference today to a meeting

24     that took place in August of 1995.  That meeting was a meeting where a

25     decision was to be taken as to who would represent the Serb interest at

Page 14928

 1     Dayton.  Milosevic was there, General Perisic was there, General Mladic

 2     was there, political leaders from the RS were there.  And so was a Serb

 3     Orthodox Bishop by the name of Bishop Irinej [phoen], and at some point

 4     in the text of those meetings which you have at Prosecution Exhibit 230

 5     and at page 11, Bishop Irinej advocated to President Milosevic the

 6     lifting of the Drina River blockade.  This is in August of 1995.

 7     President Milosevic responded to the Bishop.  He said, "the blockade was

 8     merely a formality and that aid flows daily."

 9             Now, Your Honour, I also refer Your Honours to the testimony of a

10     witness.  The transcript reference is 3.522 to 3.525, a discussion about

11     the assistance to the RS, to the VRS.  Not only was logistical supplies

12     continued to be directed toward the VRS by General Perisic, but he also

13     continued to send personnel to the VRS.  And in that respect, Your

14     Honour, I refer Your Honours to two documents that we have presented.

15     One is Prosecution Exhibit 2519.  It's referred to in our -- it refers to

16     an individual by the name of Jankovic.  He is discussed in our brief at

17     paragraphs 546 and 547.  Let me tell you about P2519.  This is a letter

18     that was written by General Mladic to the VJ General Staff and to Perisic

19     requesting specifically that Jankovic be sent to the VRS, a specific

20     request for Jankovic.  Jankovic at the time was serving in the VJ General

21     Staff 2nd administration.  This request was made months before the events

22     in Srebrenica and you will recall Mr. Jankovic.  Mr. Jankovic, if you

23     recall the meetings at the Hotel Fontana that are in evidence, the

24     meetings -- there were three.  In those meetings, Mr. Jankovic is

25     present.  Specifically, you will recall the meeting on the night of the

Page 14929

 1     11th of July, 1995, when General Mladic is sitting talking to a Muslim

 2     representative and saying to that Muslim representative, The fate of your

 3     people depends on your decision.  It's a very ominous and chilling and

 4     threatening conversation with General Mladic and this Muslim

 5     representative.  Mr. Jankovic was seated next to General Mladic at that

 6     time, taking notes and the like.

 7             Now, you'll see also, Your Honour, another document, P2518.

 8             JUDGE MOLOTO:  Let me just find out how long are you going to be

 9     on this point.

10             MR. HARMON:  Five minutes, Your Honour.

11             JUDGE MOLOTO:  We are five minutes -- almost three minutes beyond

12     the break time.

13             MR. HARMON:  I will conclude my remark.  I'll continue,

14     Your Honour, if you like, I'm at your disposal, Your Honour.

15             JUDGE MOLOTO:  I have no way of knowing how much longer you are

16     going to be.  Finish off.

17             MR. HARMON:  I'd be glad to, Your Honour.  The next document is

18     2518, it deals with an individual by the name of Kosoric.

19     Colonel Kosoric was also a member of the -- he was a member of the

20     Special Unit Corps which was subordinated to General Perisic.  There was

21     request for Mr. Kosoric by General Milovanovic, specifically naming

22     Kosoric to come to the VRS.  That was dated the 23rd of May, 1995.  About

23     a month before the events, a little bit, five weeks before the events in

24     Srebrenica.  And Mr. Kosoric is also identified in our trial brief, as I

25     say, paragraphs 549 to 553.  You may recall that Kosoric at the


Page 14930

 1     conclusion of the meeting with -- on the morning of the 12th of July in

 2     the Hotel Fontana informed various people that the inhabitants of

 3     Srebrenica were going to be separated, the men were going to be separated

 4     and they were going to be executed.

 5             Now, I say --

 6             JUDGE MOLOTO:  Did he tell them then that that they were going to

 7     be executed?

 8             MR. HARMON:  Yes, he said they were going to be killed.  It's in

 9     our brief, Your Honour.  I can't tell you the specific paragraph,

10     somewhere between paragraph 549 and 553, you should find that reference.

11     In any event, Your Honour, I think the context that we've heard,

12     Your Honour, from the Defence about Mr. Milosevic wanting peace,

13     asserting peace has little bearing on the 7(1) case that we have against

14     General Perisic.  It's our submission, Your Honour, that General Perisic

15     continued to assist the VRS supplying both military materiel and

16     personnel, notwithstanding the political differences between Milosevic

17     and Karadzic and Krajisnik and the like.

18             That, Your Honour, concludes my remarks.  I have nothing further

19     to submit, Your Honour.  Thank you.

20             JUDGE MOLOTO:  Okay, we'll then take a break and come back at

21     half past.  Court adjourned.

22                           --- Recess taken at 12.06 p.m.

23                           --- On resuming at 12.32 p.m.

24             JUDGE MOLOTO:  Mr. Lukic.

25                           [Defence Rejoinder]

Page 14931

 1             MR. LUKIC: [Interpretation] Thank you, Your Honours.  I will have

 2     several comments to make on the submissions we've just heard from our

 3     learned friends with regard to the final submissions, the closing

 4     arguments of the Defence.  I would first like to express a position ever

 5     of the Defence that Ms. McKenna referred to, namely, whether the

 6     structure and the chain of command of the Army of Yugoslavia had anything

 7     to do with the assistance provided and the provision of the officers

 8     corps which in their view has to do with effective control and

 9     Article 7(3) with regard to Mr. Perisic's responsibility.  We don't share

10     the few of the Prosecution at all.  We think that the Prosecution may

11     have neglected the indictment itself because there in paragraphs 29, 30,

12     and 31, where an aspect of aiding and abetting is referred to on the part

13     of the Army of Republika Srpska, and considers all the individuals

14     mentioned in these paragraphs as subordinates of General Perisic and

15     explain the underlying position supporting his command responsibility in

16     relation to them, in that context, what we said about the membership of

17     the army and the superior-subordinate relationship and whether anyone was

18     within or without the VJ, all of this is relevant to establish

19     responsibility under 7(1), if for nothing else then for their allegation

20     of atmosphere of impunity.

21             Now, let me address what Mr. Thomas had to say in relation to my

22     yesterday's words, namely the provisions of the army -- of the Law on the

23     Army of Yugoslavia, I referred to those provisions as did he, and you

24     yourselves, Your Honours, will have to examine them in your assessment of

25     the evidence.  The Law on the Army of Yugoslavia, as all of us here in

Page 14932

 1     the courtroom are well aware and as Mr. Thomas mentioned a moment ago,

 2     does not provide for the possibility of dispatching VJ personnel to a

 3     different country.  This was something that Witness Starcevic testified

 4     about and it is something you heard the positions of both parties on.

 5     You also heard the words of General Perisic at a meeting of the

 6     Supreme Defence Council when he discussed the possibilities under the law

 7     at a time he was within the Army of Yugoslavia.

 8             The Law on the Army of Yugoslavia regulates something else that I

 9     discussed, as well as what Mr. Thomas mentioned, and I agree with.  An

10     officer of the Army of Yugoslavia, and please look at Article 7, which

11     provides for the composition of the Army of Yugoslavia, who it is who

12     makes up the Army of Yugoslavia.  Now, I'm referring to the law.  Under

13     that law, an officer of the VJ can be assigned within the Army of

14     Yugoslavia and outside it.  The provision of the law that both I and

15     Mr. Thomas referred to deal with the status rights and obligations of the

16     VJ officer who is within the VJ and outside it.  The law is quite precise

17     in relation to the Ministry of Defence and in relation to what I invoked,

18     the regulation of the various aspects of the service, appointment,

19     promotion, and termination of service, this has been stipulated very

20     specifically in relation to the Ministry of Defence, because there is a

21     certain hierarchy within the Ministry of Defence.  We heard Witnesses

22     Nikolic and Starcevic on this issue.  For this reason, the Law on the

23     Army which regulates the status of the VJ personnel within the MOD is

24     very specific.  An officer of the VJ, such as Starcevic and Nikolic who

25     were seconded to the MOD, they were, as such, outside of the chain of

Page 14933

 1     command of the VJ and within the hierarchy of the MOD.  However, their

 2     service and their status within that service is regulated as if they were

 3     members of the VJ.  When an officer of the VJ is, for instance, assigned

 4     to a special-purpose industry, he will not be taken out of the VJ chain

 5     of command, simply because special-purpose industry doesn't have its own

 6     chain of command.  That's what the law states and that's why -- that's

 7     why they don't have specific provisions referring to them as the MOD does

 8     in Articles 151, 158, and 181, so we have a situation whereby the law

 9     does not provide for the possibility of a foreign officer to join a

10     different army and we have the status being brought in line with that of

11     the Ministry of Defence and which is specifically envisaged under the

12     law.  This particular situation could not have been envisaged by the law,

13     simply because the law does not stipulate that personnel can join an army

14     in a different country.  Simply, such a scenario was not envisioned.

15             This was the reason why fictitious virtual documents had to be

16     drawn up on appointments to a different army, something that does not

17     exist in essence, but as we were submitting, they are leaving the chain

18     of command of the VJ simply because they've entered the chain of command

19     of a different army, and simply because you cannot have two chains of

20     command functioning.

21             At transcript page 10532, Witness Starcevic spoke about what the

22     actual state of affairs was given that the law itself did not envisage

23     the possibility for someone to join the ranks of a different army.  All

24     of the submissions we made in relation to the provisions of the law

25     indicated how someone in relation to the MOD when it came to appointment,

Page 14934

 1     transfers, termination of service and promotions and specifically

 2     disciplining, all of this is outside of the VJ, when the individual is

 3     within the Ministry of Defence.  Including disciplining.

 4             Let's make it simple.  For instance, I, as a VJ officer, joined

 5     the Ministry of Defence where I committed a breach of discipline.  It is

 6     only within the authority of the minister of defence to initiate

 7     disciplinary proceedings against me under the law, and not

 8     General Perisic or anyone else from the army.  Once I returned to the

 9     ranks of the Army of Yugoslavia when I'm assigned to a specific duty,

10     from that point on, General Perisic, or the individuals as regulated by

11     the army service rules, have the authority to initiate disciplinary

12     proceedings or whatever actions against me.

13             This is the submission by the Defence, you have the OTP position

14     with relation to law, and they know themselves because we've been dealing

15     with these facts for the past two years that this is something that was

16     not envisaged by the law.  I will not be invoking all the other

17     provisions of the law.  I will merely say that this is our interpretation

18     of the law.  Mr. Thomas presented us with their interpretation of the

19     law.  The two parties, however, do agree on one score on that's that,

20     under the law, it was not envisaged that a VJ officer may be assigned to

21     a different army.  What the OTP did not mention, and this is something

22     that we've been discussing for the past two days, first, in relation to

23     aiding and abetting by the provision of the officers corps, and through

24     active actions by General Perisic, i.e., the setting up of the personnel

25     centres, this particular officers corps was given vitality, which enabled

Page 14935

 1     them to exist as such, we challenged these OTP submissions, but received

 2     no response whatsoever.

 3             Your Honours, the army is not an ambivalent, disorganised mass.

 4     Every army is a structured organisation which has particular posts

 5     occupied by certain individuals.  This is what makes up the chain of

 6     command and that's how the army works.  It is our submission that these

 7     individuals whilst they were within the 30th and 40th Personnel Centres,

 8     and via those in the Army of Republika Srpska and the Army of Serbian

 9     Krajina were not within the chain of command of the Army of Yugoslavia,

10     and I will not dwell on this point any longer.

11             There is one other topic I'd like to address.  I'd like to make

12     two brief comments and then I'll finish and they have to do with what

13     Mr. Harmon mentioned a moment ago.  They have to do with the sanctions

14     imposed by the FRY after the rejection of the Contact Group Plan.  I

15     think that the rebuttal in this sense went beyond the scope of our

16     discussions, but still I have to address the comments he made to the

17     effect that the sanctions imposed by General Perisic were not honoured.

18             First off, what we mentioned, above all, in relation to political

19     leaderships and the relationship between the Army of Yugoslavia and

20     leadership of the VRS and SVK, is something that we presented in relation

21     to influence and control, in relation to the existence or non-existence

22     of a superior-subordinate relationship, which you need to establish in

23     order to establish command responsibility.

24             The Defence never contested, and we even invoke these documents,

25     this was earlier on in private sessions, we are in public session now,

Page 14936

 1     but we can say that the Federal Republic of Yugoslavia, despite the fact

 2     that it introduced sanctions upon Republika Srpska in August of 1994, a

 3     certain while later resumed the provision of assistance to both the VRS

 4     and the SVK, as well as to both these countries, the RS and the RSK.

 5             I'll remind you that we showed these Supreme Defence Council's

 6     decisions from May and June of 1995 to witnesses and especially after

 7     Storm when it was said quite decidedly that assistance to the RS would

 8     continue, in view of the general situation which posed a threat to the

 9     stability of the FRY, insofar as it may pose a threat to its combat

10     readiness.  That's what the decision said.  And we take no issue with the

11     statement by Milosevic which Mr. Harmon referred to this that this

12     assistance was continued.  We submit that it did not continue throughout

13     the existence of the sanctions, that the Army of Yugoslavia consistently

14     enforced these sanctions insofar as it concerned the powers of the VJ

15     until such time as the SDS ordered that assistance should be provided

16     again.

17             JUDGE MOLOTO:  Sorry --

18             THE INTERPRETER:  Interpreter's correction:  SDC.

19             JUDGE MOLOTO:  Thank you.

20             MR. LUKIC: [Interpretation] Yes, we wanted to correct that part

21     of the transcript.  Page 65, line 25, I said Supreme Defence Council.

22     SDC.

23             JUDGE MOLOTO:  SDC.  Okay.  You may proceed, Mr. Lukic.

24             MR. LUKIC: [Interpretation] Now that I've stopped, let me make a

25     small correction.  Page 63, line 4, I said Witness Nikolic, not Witness

Page 14937

 1     Starcevic at that point.

 2             Mr. Harmon mentioned the Exhibit which had to do with the loan of

 3     500.000 dinars that General Perisic gave to General Mladic.  Those were

 4     two documents.  One was Perisic's and the other was Mladic's letter.

 5             JUDGE MOLOTO:  I don't think Mr. Harmon characterised it as a

 6     loan.  I do not --

 7             MR. LUKIC: [Interpretation] Very well.  Bear with me, please.

 8     Then I misinterpreted him.  I use the term "loan" because that was how

 9     the amount was characterised in one of these two documents, so my

10     apologies to Mr. Harmon, but that was also the testimony of Witness

11     Petrovic, and as you will see one of the two documents used the term

12     "loan".  Bear with me for a moment, Your Honours.

13             To avoid any confusion with regard to the Defence's position on

14     this issue, and in paragraph 365 of our final trial brief in relation to

15     the loan of 500.000 dinars, we expressed what our view was in relation to

16     the loan.  We assert that, at the time, the Defence minister

17     Pavle Bulatovic was privy to that loan and even discussed it, you have it

18     in footnote 658 of our trial brief, where we referred to one of his

19     statements in the minutes, 572 page 89, that's minutes of the

20     Supreme Defence Council.

21             Thank you, Your Honours.  If you have any questions, I'm prepared

22     to answer them.  But these were the comments that we wished to make in

23     relation to the Prosecutor's rebuttal.

24             JUDGE MOLOTO:  Thank you very much, Mr. Lukic.  It remains for

25     the Chamber just to thank the parties for the conduct of the trial from

Page 14938

 1     the beginning to now.  We've now reached the end, almost, and pursuant to

 2     Rule 87A, of the Rules of Procedure, the Chamber declares the hearing

 3     closed and the Chamber will retreat to go and deliberate, and the parties

 4     will hear judgement on a date to be determined.  Court adjourned.

 5                           --- Whereupon the hearing adjourned at 12.51 p.m.