Tribunal Criminal Tribunal for the Former Yugoslavia

Page 21305

 1                          Friday, 15 February 2008

 2                          [Open session]

 3                          [Rule 98 bis]

 4                          [The accused entered court]

 5                          --- Upon commencing at 9.07 a.m.

 6            JUDGE AGIUS:  Good morning.

 7            Madam Registrar, could you call the case, please.

 8            THE REGISTRAR:  Good morning, Your Honours.

 9            This is the case number IT-05-88-T, the Prosecutor versus Vujadin

10    Popovic et al.

11            JUDGE AGIUS:  Thank you, madam.

12            All the accused are here.  I think Defence teams are also a full

13    house.  Yes.  And Mr. McCloskey is appearing for the Prosecution.

14            I see Mr. McCloskey on his feet.  Yes.

15            MR. McCLOSKEY:  Just briefly, Mr. President.

16            Mr. Lazarevic had identified another small section relating to the

17    indictment, and those two, where there was no evidence on.  And would you

18    like me to just acknowledge that orally, or we can file something as well.

19            JUDGE AGIUS:  I think you can file something.  I think it will be

20    useful.  Or else you make a passing reference to it on Monday, when you

21    start your --

22            MR. McCLOSKEY:  We can file something very simply.  Thank you.

23            JUDGE AGIUS:  Thank you.

24            So it's, I think, your turn, Madame Fauveau.

25            MS. FAUVEAU: [Interpretation] Yes, Mr. President.

Page 21306

 1            Mr. President, Your Honours, the question today is whether the

 2    Prosecution has adduced evidence such as to warrant convicting General

 3    Miletic for the counts alleged in the indictment.  We say, no, they did

 4    not bring this evidence.

 5            First of all, I shall review the evidence pertaining to crimes

 6    against humanity, deportation.  Crimes against humanity, the Prosecutor

 7    did not bring all the constitutive elements of that crime.

 8            Then, concerning General Miletic in particular, the Prosecution

 9    did not bring any evidence -- sufficient evidence of his taking part in

10    the joint criminal enterprise and of his intention to justify -- to

11    justify his conviction should have been criminal.  I am therefore pleading

12    for the acquittal of General Miletic of all counts concerning him; in

13    particular, 4, 5, 6, 7 and 8.

14            First of all, I will look at count number 8, the crime against

15    humanity of deportation.

16            In paragraph 84 of the indictment, the Prosecution alleges

17    deportations were perpetrated, the forced displacement of Muslim men from

18    Zepa who had to cross the Drina River to Serbia.  This displacement of

19    population by restricting the aid and bombardments and attack, but the

20    only thing which could distinguish this from the forced transfer in count

21    number 7 is the crossing of the Drina River, passing the border.  In the

22    indictment, the only people who crossed the river were the Muslim men of

23    Zepa. Therefore, the only victims of this deportation would have been

24    Muslim men of Zepa.

25            Following Article 5 of the Statute of the Tribunal, crimes against

Page 21307

 1    humanity must have been committed during an armed conflict, whether

 2    international or domestic, and directed against a civilian population,

 3    whatever is this population.  In his report of the 8th May 1993, paragraph

 4    47, the Secretary-General of the United Nations wrote that crimes against

 5    humanity are directed against a civilian population.  Those are those

 6    specific crimes against civilian population.

 7            In the Blaskic case, the Appeals Chamber considered, on its

 8    judgement of the 29th of July, 2004, at paragraph 107, that both the

 9    status of victim as a civilian, as a scale on which it's committed, or the

10    level or organisation involved characterize a crime against humanity;

11    therefore, it is not enough that the attack itself be directed towards the

12    civilian population, it is not enough that civilian zones be bombarded and

13    attacked, shelled.  Victims have to be civilians.

14            Now, in this case, we are talking about deportation.  Therefore,

15    it would have been necessary that the victims of deportation, those who

16    crossed the River Drina, should have been civilians -- have to be

17    civilians.

18            Now, in the case at hand, we know that the individuals who were

19    allegedly deported were men and able-bodied men of military age.  Nobody

20    may reasonably presume that these men were civilians, since a reasonable

21    presumption would rather suggest that these men were considered as

22    military.  The fact of a victim being a civilian is one of the elements

23    which constitutes the crime against humanity, and it is for the

24    Prosecution to prove all the elements of the crime, including the status

25    of individuals who fell victim to such action.  Now, we have no evidence

Page 21308

 1    that these men were civilians.  The Prosecution never deduced the

 2    slightest evidence that these men were not military.  We have heard

 3    Witness PW-155, who crossed the Drina after the fall of Zepa.  On the 5th

 4    of February, 2007, page 6831 of the transcript, this witness acknowledged

 5    and admitted that he was on the defence line, that he took part in the

 6    defence of Zepa, and this amounts to being a combatant.

 7            Then we heard Witness 49, who stated, on the 2nd of April, 2007,

 8    at page 9826, when talking about the brigade of Zepa, that part of these

 9    troops were armed and some of them succeeded in making it to Serbia.

10            On 7th of November, 2007, at page 17633, speaking about military

11    forces of Bosnia-Herzegovina in Zepa, General Smith stated that these

12    continued to fight in the area and that in most cases they crossed the

13    Drina into Serbia.  Therefore, those who crossed the Drina, who left for

14    Serbia, were members of military forces, those who were fighters and were

15    continuing to fight.

16            Last, the military expert, Richard Butler, stated on the 17th of

17    January, 2008, and this is at page 19945, that the members of the Army of

18    the Republika Srpska were speaking about what they were actually seeing,

19    i.e., Muslim soldiers who, rather than to surrender to the Army of

20    Republika Srpska, were trying to cross the River Drina and to go to

21    Serbia.  Therefore, we know that an individual who took part in the

22    defence of Zepa crossed the River Drina, that part of the armed troops

23    belonging to the Zepa Brigade, the military forces of Bosnia-Herzegovina,

24    those who continued to fight and the Muslim soldiers.  There can be no

25    doubt about that.  There are no civilians among those who passed the River

Page 21309

 1    Drina.

 2            The Prosecutor never adduced the slightest evidence that these

 3    men, who fled Zepa towards Serbia, were not military, while in order to

 4    prove a crime against humanity, he should have done so.  Since the

 5    Prosecutor has not given any evidence that the men who crossed the River

 6    Drina were civilians, he failed to furnish the proof of the existence of

 7    the crime against humanity, which is deportation, and therefore General

 8    Miletic should be acquitted of that count.

 9            I will now speak about the alleged participation of General

10    Miletic in a criminal -- joint criminal enterprise aimed at expulsing --

11    deporting the population from Zepa, Muslim population from Zepa.

12            General Miletic is accused of having taken part in a joint

13    criminal enterprise to deport the population -- Muslim population from

14    Zepa.  According to the Prosecution, this criminal -- joint criminal

15    enterprise was aimed to force transfer and deportation of the Muslim

16    population from this enclave for individual murders, such as

17    assassination, murder against humanity, and murder, a violation of the

18    laws and customs of war, and persecution.  This crime would have been the

19    aim of this joint enterprise.

20            The Appeal Chamber Judge decided, in the Brdjanin case in its

21    judgement on the 3rd April, 2007, paragraph 365, that in order to be

22    sentenced for taking part in the first form of the joint criminal

23    enterprise, the accused must have had the intention to commit this crime

24    and the intention to take part in the joint plan with the goal -- the goal

25    of which was to commit this crime.

Page 21310

 1            Liability founded on the participation of an accused in a joint

 2    criminal enterprise requires the participation of the accused himself.

 3    Further to the judgement made in the Brdjanin case, paragraph 424, this

 4    participation may take the form of assistance or helping or contribution

 5    to the implementation of the common goal, but the Appeal Chamber decided

 6    in the same judgement, at paragraph 427, that any sort of behaviour does

 7    not equate to contribution sufficiently important to make the accused

 8    criminally liable.  If the Appeal Chamber observed that this contribution

 9    shouldn't be substantial, nevertheless it decided at paragraph 430 that it

10    has to be significant so that the accused may be judged as guilty.  The

11    Prosecutor, therefore, had to adduce the evidence of a significant

12    participation of General Miletic in the joint criminal enterprise and of

13    his intention to commit the crime and to take part in the joint plan to

14    commit the forced transfer and deportations.

15            What would be the evidence of General Miletic's participation to

16    the joint criminal enterprise?  Only his position in the General Staff of

17    the Republika Srpska in 1995.  And yet this position remains more than

18    fuzzy, woolly.  The Prosecutor tells us in the indictment, in French, that

19    General Miletic was the chief of staff per interim, which is probably one

20    of the possible translations of "standing in for."

21            Now, all the witnesses, without any exception, including the

22    military expert of the Prosecutor, stated that General Milovanovic was the

23    chief of staff during all the war including in 1995, including in July

24    1995. General Milovanovic himself stated, on the 29th of May, 2007 - this

25    can be read at page 12146 - that he was the head of -- the chief of staff

Page 21311

 1    of the Republika Srpska all along the war of -- in Bosnia-Herzegovina, and

 2    he repeated this on the 31st of May, 2007, at page 12303.

 3            The other officers of the Army of Republika Srpska confirmed that

 4    General Milovanovic was, in July 1995, the chief of staff of the Army of

 5    the Republika Srpska.  For instance, Mirko Trivic, on the 22nd of May,

 6    2007, page 11937; Bogdan Sladojevic on the 27th of August, 2007, page

 7    14388; Nedeljko Trkulja on the 10th of September, 2007, page 15074.

 8    Miomir Sakic on the 13th of September 2007, page 15323; Petar Skrbic on

 9    the 17th of September, 2007, at 15507.

10            The officers of UNPROFOR also stated that General Milovanovic was

11    the chief of -- was the chief of the Army of Republika Srpska and General

12    Smith, commanding the armed forces for Bosnia-Herzegovina in 1995 stated

13    the same on the 7th of November, 2007, at page 17619.  And General

14    Nikolai, who was chief of staff, UNPROFOR, confirmed this on the 29th of

15    November, 2007, page 18448.  Edward Joseph also stated this on the 22nd of

16    August, 2007, page 14148.

17            Finally, the military expert of the Prosecutor, Richard Butler,

18    also stated this during the hearing on the 23rd of January, 2008, pages

19    2240 to 241, that General Milovanovic was the general chief of staff --

20    the main chief of staff in July 1995.

21            General Milovanovic is indeed the chief of staff of the Republika

22    Srpska Army in 1995.  He performs the duties, the obligations, and tasks

23    as chief of staff.  We have seen the documents he signed during all this

24    period between March and July 1995, and we may mention P2687, a document

25    concerning the convoys of the 7th of April, 2007, and also Exhibit P2669A,

Page 21312

 1    an order signed by General Milovanovic on the 27th of May, 1995.

 2            The Prosecutor shows the documents designating General Miletic as

 3    representative of the chief of staff.  There is no doubt that his name is

 4    and features on these documents and that his duties are described as being

 5    the representative of the chief of staff, only nobody really knows what

 6    this term really means and what exactly is exactly the functions and

 7    duties of the representative of the chaff, what are his powers and what is

 8    his authority.  The fact is that when General Milovanovic was physically

 9    absent from the staff, and I have to underscore "physically" because his

10    absence was only physical, some of his duties, which he couldn't perform

11    by reason of his physical absence, were performed by other generals.

12            In his capacity as chief of staff, General Milovanovic had contact

13    with UNPROFOR.  General Nikolai stated on the 29th of November, 2007, at

14    page 18448 that his principal contact was General Milovanovic, and he

15    added that when General Milovanovic was not present, he spoke to other

16    generals. Only General Miletic does not feature among the generals with

17    whom General Nikolai had contacts.

18            General Milovanovic, in his capacity of the General Staff, was

19    going in the field.  He did indeed go to Zvornik in April and May 1995,

20    which is shown by Exhibits P2891, 5D714, and we know that General Miletic,

21    in 1995, did not only even once go to check the status of the units on the

22    ground, in the field.  Other officers went there.

23            On the 31st of May, 2007, and this is to be seen at page 12309,

24    General Milovanovic said that General Miletic would put in for him for

25    daily activities, and he added that General Miletic never had the

Page 21313

 1    powers -- all the powers which he, General Milovanovic, held. And on the

 2    28th of January, 2008, at page 20548, the military expert of the

 3    Prosecutor stated that he did not believe that General Miletic had the

 4    authority or the powers enabling him to perform the duties which had been

 5    those of General Milovanovic.

 6            Based on all the evidence which we have seen, on the base of all

 7    the documents which bear the name of General Miletic as the representative

 8    of the chief of staff, nobody could reasonably conclude that General

 9    Miletic had totally replaced General Milovanovic in his capacity of chief

10    of staff of the Army of the Republika Srpska.  At most, these documents

11    and evidence presented lead to a conclusion that General Miletic did sign

12    some documents, and I say "some documents," when, for a reason or another,

13    General Milovanovic was prevented from signing them.  Once again, none of

14    these documents bear the famous letters "SR" which means that it was

15    personally signed by the person named in the document.  According to the

16    explanation given by the expert witness Richard Butler on the 17th of

17    January, 2008, at page 19871 of the transcript.

18            And If we follow the indictment, we can read that for the

19    Prosecution, General Miletic would have been the principal adviser of

20    General Mladic.  There, again, there is no evidence.  Indeed, during his

21    statement of the 21st of August, 2006, at page 383, the Prosecutor quoted

22    the names of four generals, including General Miletic, who would have been

23    the closest adviser or closest officer of General Mladic.  The only thing

24    is that this thesis is supported by no evidence.  Differently from all

25    other generals of the staff and differently from all the commanders of the

Page 21314

 1    corps, who were all subordinated directly to General Mladic, General

 2    Miletic was not even a direct subordinate.  He was subordinated to General

 3    Milovanovic.

 4            General Milovanovic stated on the 31st of May, 2007, page 12303,

 5    as well as Richard Butler on the 28th of January, 2007, at page 20547,

 6    stated that because General Mladic was not a direct superior of General

 7    Miletic, General Miletic had no reason to have direct contacts or regular

 8    contacts with General Mladic.  Besides, General Milovanovic affirmed on

 9    the 31st of May, 2007, at page 12311 that General Mladic did not

10    particularly like General Miletic.

11            We have heard, on the 5th and 6th of November, 2007, General Smith

12    speak of a lot of meetings he had with General Mladic in 1995, and we saw

13    minutes or reports of these meetings.  Those are Exhibits P2933, P2934,

14    P2942, P2943, P2747, P2947.  We can only notice total absence of General

15    Miletic at these meetings.  No trace of his presence, no evidence that

16    General Mladic would have consulted him before such meetings or even would

17    have had transmitted the results of the meetings after those.  No, nothing

18    much.

19            The Prosecutor will certainly say that General Miletic was not in

20    charge of these meetings, in particular with UNPROFOR or with

21    international organisations.  Agreed.  But in that case, how could he have

22    had the central pivotal role in the distribution of humanitarian aid?  I

23    shall come back on this point later.  For the moment, let us accept that

24    his role was not to deal or prepare meetings, but to help General Mladic

25    in military operations.

Page 21315

 1            During the Srebrenica operation in July 1995, General Mladic came

 2    in the field, on the ground, and we know that he is present on the 11th of

 3    July, 1995.  General Mladic is at Srebrenica, but without General Miletic.

 4    Several meetings took place on the 11th and 12th of July in Bratunac.  I

 5    shall not speak of the meetings in the Hotel Fontana, but I note that

 6    General Miletic is not present.

 7            What is most significant is that on the 11th or 12th of July,

 8    1995, is that a meeting would have taken place in Bratunac, where the

 9    continuation of military actions towards Zepa was decided and planned,

10    elaborated.  Mirko Trivic stated on the 21st of May, 2007, at page 11841

11    to 842 that General Mladic was present at least for part of the meeting,

12    for part of the meeting, but General Miletic did not -- was not present,

13    did not attend.  No proof -- no evidence exists that General Mladic

14    consulted the general before this meeting or that he informed him of the

15    conclusions or decisions made in this meeting, after it had taken place.

16    Simply, there is no evidence that at the time, General Mladic would have

17    contacted General Miletic or that General Mladic wanted to contact, not

18    even that he tried to contact him.

19            We also know that General Mladic went to Zepa.  Many witnesses

20    confirmed this point.  General Smith, on the 6th of November, 2007, page

21    17556; Edward Joseph on the 23rd of August, 2007, page 14160; Thomas Dibb

22    on the 15th of October, 2007, page 16293; Witness 49 on the 30th of March,

23    2007, page 9729 and 9732, and as well as reports such as P2946 and P2944.

24            As for General Miletic, he did not go to Zepa in 1995, not even

25    once before that, during or after the military actions which happened

Page 21316

 1    there.  He did not help General Mladic either in Zepa nor in conducting

 2    military action, nor in the negotiations which he, himself, Mladic, had

 3    conducted on the spot.

 4            We also know that General Mladic took part in the departure of

 5    General Zivanovic on the 20th of July, 1995, in the Jela Restaurant,

 6    accompanied by his chief of staff, General Milovanovic. General

 7    Milovanovic confirmed this on the 29th of May, 2007, page 12206, as well

 8    as Mirko Trivic on the 21st of May, 2007, at page 11876.  Once again,

 9    General Miletic was not present.

10            We finally know that all the generals of the Main Staff were

11    present at Banja Luka at the beginning of August 1995 to sign the letter

12    which was supporting General Mladic, and this is Exhibit P1026.  Once

13    again, General Miletic was not present.

14            Isn't this a strange adviser, who never accompanies the one he

15    should be advising?  Obviously, General Miletic is not accompanying

16    General Mladic.  This is not all.  No element of the case file indicates

17    that General Mladic ever contacted General Miletic to ask him some advice.

18      Once again, there is absolutely nothing.

19            In the indictment, the Prosecutor sustains that General Miletic

20    was the main officer in charge of transcribing the intentions, orders, and

21    directives of the commander.  Agreed, but then one had to prove that he

22    had done so for Srebrenica and Zepa, and this is not at all the case.

23    Indeed, we have directive number 7, but directive number 7 is not even a

24    directive from the commander.  It is from the Supreme Command, President

25    Karadzic.  Let us examine this directive number 7, which is Exhibit P5,

Page 21317

 1    for its face value without entering a possible interpretation of what it

 2    means or what is the meaning of the sentence concerning civilian

 3    population in the enclaves.

 4            We do not deny that General Miletic had taken part in its

 5    drafting, the drafting of this directive, but he did not actually conceive

 6    it.  He did not formulate it.  This text is not his text.  It is the text

 7    of the Supreme Command, President Karadzic.

 8            In his statement on the 21st of August, 2006, page 399, the

 9    Prosecutor stated that General Miletic, in person, had drafted the

10    sentence concerning the civilian population in the enclaves of Srebrenica

11    and Zepa, but during the presentation of evidence, he did not show in any

12    way that General Miletic had written or drafted this sentence.  He in fact

13    carefully avoided this matter.

14            Now, on the 30th of May, 2007, at page 11277, General Milovanovic

15    stated that President Karadzic may have added this sentence against the

16    will and wish of General Miletic and that, anyway, even if General Miletic

17    had opposed this, this opposition would have led to nothing.

18            On the 29th of January, 2008, pages 20585 to 586, the military

19    expert of the Prosecution confirmed that Radovan Karadzic may have

20    modified or amended certain parts of the directive before he signed it,

21    and that he may have added this sentence against the will of the members

22    of the staff.

23            The question of knowing who wrote or drafted this sentence remains

24    completely open.  Was it General Mladic who after his meeting with General

25    Smith on the 5th of March, 1995, where he announced there would be a

Page 21318

 1    restriction on the convoys General Smith spoke about it on the 6th of

 2    November, 2007, at page 17478, and indeed what General Mladic said was

 3    reported in an UNPROFOR report dated 6th March 1995, Exhibit P2933.   Was

 4    it President Karadzic who added this sentence for some reason or another?

 5    We do not know.  But the Prosecution gave us no evidence, and also he

 6    furnished no evidence that General Miletic would have written it or

 7    drafted it.

 8            Now, the onus probandi is for the Prosecutor.  He should have

 9    furnished his evidence for his argument according to which General Miletic

10    would have written this sentence, and he has not done so.  The fact that

11    the name General Miletic features on this directive is no evidence,

12    because this directive was not his.  It emanates from President Karadzic.

13    At most, what can be concluded from this directive is the fact that

14    General Miletic would have known about the general policy concerning the

15    enclaves, knowledge, but not the fact that he would adhere to this policy.

16            And further to this directive, we also have directive 7.1, Exhibit

17    361, a directive in which the sentence in question does not feature.  If

18    General Mladic wrote this sentence concerning the civilian population at

19    Srebrenica and Zepa, he may have thought again and changed his mind, if it

20    was President Karadzic who had written it.  General Mladic may probably

21    have decided not to follow these directives.

22            Whatever the case may be, on the basis of the evidence presented

23    in this case file, this sentence cannot be put at the door of General

24    Miletic.

25            The Prosecutor wants us to believe that directive 7 and 7.1 were

Page 21319

 1    the starting point -- the cause of the future events which took place in

 2    Srebrenica and Zepa, and besides the date of directive number 7 on the 8th

 3    of March, 1995, is the date of the creation of the joint criminal

 4    enterprise which is alleged.  The Prosecutor did not bring any evidence

 5    that those directives had as an aim to attack Srebrenica or Zepa.  He

 6    adduced no evidence of a nexus of causality between this directive and the

 7    elements which took place in the eastern enclaves of Bosnia, in the

 8    enclaves of eastern Bosnia in 1995.  The orders of General Milovanovic

 9    initiating military action around Srebrenica, which referred to the

10    directives, do not countenance the taking of the enclaves.  The taking of

11    the enclaves was a sudden decision made on the 9th of July, in the

12    evening, and I will express myself on this a bit later.

13            None of these two directives, 7 and 7.1, mentions an attack

14    against the enclaves.  Directive 7.1 does not even speak of the enclaves.

15    The directive just speaks about the separation of the enclaves.  And since

16    this directive indicates that the enclaves have to be separated, obviously

17    it does not envisage to deport the Muslim population, because without the

18    Muslim population, the enclaves would not have existed, and therefore

19    separating them would have had no reason.

20            The separation of the enclaves, which is envisaged in the

21    directive, did not envisage the transfer of population.  This is not a

22    crime.  This is a military objective, an objective which was actually

23    consistent and consonant with the agreement signed in 1993 between the

24    Army of the Republika Srpska and the Army of Bosnia-Herzegovina and


Page 21320

 1            The Prosecutor needs directive 7 for -- in this case.  He thinks

 2    that this directive, mentioning humanitarian convoys, may tie up General

 3    Miletic to the events which took place in July 1995 at Srebrenica and

 4    Zepa, but do we have evidence that the restriction to humanitarian aid

 5    increased after the directive?  A great number of orders concerning the

 6    passage of convoys show that this policy, this controlled policy, already

 7    existed since the beginning of the war. Besides, do we have any evidence

 8    that humanitarian aid was particularly restricted in the case of

 9    Srebrenica and Zepa?   No, we do not have any.  The policy towards convoys

10    was the same for all the enclaves.

11            Do we have any evidence that the humanitarian situation in the

12    enclaves was a consequence of the restrictions imposed on the convoys?

13    No, we don't have any.  We know or saw that there were some foul play

14    taking place.  Exhibits 5D31 and 5D509 affirm this.   But whatever the

15    case, the situation in Srebrenica, as such, could very well be a

16    consequence of this foul play of the Bosnian authorities locally and for

17    which General Miletic is not at all responsible.

18            The Prosecutor brought evidence that the restriction to

19    humanitarian aid was the cause of the humanitarian situation at

20    Srebrenica, but he did not do so.   We have about 50 reports of the

21    Zvornik Brigade which show the number of convoys which went through to go

22    to Srebrenica and Zepa during the period from March to July 1995, and we

23    have the document of UNPROFOR, Exhibit 5D728, which states that in March,

24    93 per cent of the humanitarian aid provided for Srebrenica reached,

25    indeed, Srebrenica.  93 per cent is practically the total.

Page 21321

 1            Yes, the name of General Miletic does appear on the documents,

 2    which are only information sent to the subordinated units to inform them

 3    that convoys may pass and to tell them what -- where the convoys for whom

 4    the passage was not allowed or authorised.  Yes, his name does feature on

 5    this document, he was the chief of the administration in charge of

 6    operational matters, and he was therefore in charge of transmitting this

 7    type of information to the subordinated -- the units subordinated to the

 8    Main Staff.

 9            If one looks very carefully at these documents, one can see that

10    for most of them, those were the United Nations UNPROFOR convoys, the

11    passage of which were limited.   Convoys of UNPROFOR did not transport

12    humanitarian aid, and General Miletic is accused exclusively to have taken

13    part in the restriction of humanitarian aid to the Muslim population.

14            In his statement of the 21st of August, 2006, page 442, the

15    Prosecutor declared that General Miletic played a very important role in

16    the organisation of convoys and that he decided which were the convoys who

17    could leave and those who couldn't.  But he adduced no evidence that

18    General Miletic decided anything concerning the convoys.  The only element

19    of evidence, just a shred of evidence which, by the way, does not confirm

20    at all the argument of the Prosecutor, are two conversations, P1237 and

21    P1266, which show that General Tolimir, together with General Mladic, were

22    deciding about the passage.  The Exhibit P1266 also shows that the

23    coordinating organ gave the authorisations.

24            We know that Colonel Djukic, an officer of the staff, was a member

25    of this coordination unit.  We have Exhibit 6D7, which lists the members

Page 21322

 1    of that organ.  The military expert of the Prosecution, Richard Butler,

 2    confirmed on the 1st of February, 2008, on page 20950 that General

 3    Djordjic [realtime transcript read in error "Djukic"] was not subordinated

 4    to General Miletic.  Besides, a great number of orders, Exhibit P2749,

 5    5D372, 5D374, 5D378, 5D605, 5D725, signed by General Mladic, General

 6    Milovanovic, and even General Tolimir, which were given much before

 7    directive number 7, determined what were the lines concerning the

 8    procedures applied to the convoys.

 9            We have seen about meetings concerning humanitarian aid where

10    General Miletic did not attend.  We have seen orders concerning the

11    passage of convoys signed by some generals, but none was signed by General

12    Miletic.  We have discovered that there was a unit or organ in charge of

13    humanitarian aid presided by Professor Koljevic, whose role has not been

14    elucidated.

15            Finally, Exhibit 5D615 shows that the Ministry of Internal Affairs

16    was also taking part in matters concerning the passage of convoys, and of

17    course we do not know exactly what was the role of this Ministry.

18            In all this, there is no evidence that General Miletic had any

19    other role than to transmit information concerning the passage of convoys

20    to the subordinated units.  Beyond the fact that we have no evidence that

21    General Miletic had personally signed these documents, the Prosecution

22    himself, referring to -- in his statement of the 21st of August, 2006, at

23    page 444, one of these documents which became later Exhibit P2497, stated

24    that none of this was criminal, and indeed there is nothing criminal about

25    these documents, nothing illegal or illicit.  Humanitarian aid was partly

Page 21323

 1    used for the needs of the Muslim army.  The convoys were a means of

 2    illegally bringing weapons in the enclaves, as is shown by Exhibits 5D518

 3    and 5D519, and therefore certain restrictions were imposed and a control

 4    was performed.

 5            As the Prosecutor stated, this procedure does not contain any

 6    criminal elements.

 7            We can take it one step further.  This procedure complies with the

 8    Geneva Conventions, Article 23, paragraph one of the 4th Geneva Convention

 9    provides as follows:

10             "Each high contracting party shall allow the free passage of all

11    consignments of medical and hospital stores and objects necessary for

12    religious worship intended only for civilians of another high contracting

13    party, even if the latter is its adversary.  It shall likewise permit the

14    free passage of all consignments of essential food stuffs, clothing and

15    tonics intended for children under 15, expected mothers, and maternity

16    cases."

17            Furthermore, paragraph 2 of Article 23 of the Geneva Convention

18    stipulates:

19             "The obligation of a high contracting party to allow the free

20    passage of the consignments indicated in the preceding paragraph is

21    subject to the condition that this party is satisfied that there are no

22    serious reasons for fearing, (a), that the consignments may be diverted

23    from their destination; (b), that the control may not be effective, or,

24    (c), that a definitive advantage may accrue to the military efforts or

25    economy of the enemy."

Page 21324

 1            Indeed, when a warring party may have serious grounds for thinking

 2    that the scope and frequency of the consignment can foster the military

 3    efforts or the economy of the adversary, or if it has reasons to believe

 4    that the humanitarian aid is used for military purposes, it is entitled to

 5    deny the free passage.

 6            We have the judicial notice in this case that part of the

 7    humanitarian aid was used for the needs of the Army of Bosnia-Herzegovina.

 8            Even if we admit that for the sake of the argument, the passage of

 9    the consignments was restricted and that the situation, from a

10    humanitarian standpoint in the enclaves, was bad, nonetheless the

11    Prosecutor has not demonstrated that the policy that applied to the

12    convoys was a consequence of directive number 7, and the consequence was

13    due to the restriction imposed on the convoys.  The Prosecution did not

14    demonstrate what the part -- what part was played by General Miletic in

15    the implementation of such a policy, other than he sent information to his

16    subordinates.  Other than that, the Prosecution did not demonstrate that

17    the procedure that applied to the convoys, which was fully compliant with

18    the Geneva Convention, was aimed at driving out the Muslim population from

19    the enclaves.

20            I shall now address the situation on the ground.

21            What knowledge did General Miletic have of the situation on the

22    ground, not only during the period when these events took place, but also

23    before that, the events in Srebrenica and Zepa?

24            In his opening statement on the 21st of August, 2007, the

25    Prosecution stated the chief of operations is someone that is involved in

Page 21325

 1    the military operations of the corps and the brigade.  This is not someone

 2    who is in charge of logistics.  This is not someone who is in charge of

 3    technical matters.  This is someone who truly operates on the ground.  I

 4    shall not address this issue as to whether the Prosecutor attributed the

 5    right role to the person in charge of operations and whether this was his

 6    true role.  I shall just say that at the time, the war was waged on all

 7    fronts in the Republika Srpska, in the areas of the 6th Corps and by a

 8    hundred or so brigades and other units.  And the Prosecutor admits in its

 9    opening statement on the 21st of August, 2006, page 396, that in July

10    1995, the Sarajevo front line was a main front line for Serbs.  Indeed,

11    this is not Western Bosnia [as interpreted], but the Sarajevo front line

12    and the Bihac front line, that concerned the Main Staff at the time.

13            Line 23, we should read not "Western Bosnia" but "the Sarajevo

14    front line and the Bihac front line."  One should read "Eastern Bosnia"

15    and not "Western Bosnia."

16            JUDGE AGIUS:  Thank you for that.  Go ahead.

17            MS. FAUVEAU: [Interpretation] Whatever the case may be, it was

18    simply impossible for the chiefs of operations of the Main Staff to

19    operate on the ground and to take part in any military operation led by

20    all the corps and brigades.  Besides, the military expert of the

21    Prosecutor contradicts this theory, for he restricts intervention of the

22    Main Staff in military operations to very specific cases.  He stated at

23    the hearing of January 29, 2008, page 20587, and I quote:

24             "It is only when several corps commanders needed to intervene

25    that the issues were complex and that the relationships between the

Page 21326

 1    various commanders needed to be addressed, and that it was only then that

 2    the Main Staff intervened."

 3            But let's address the Prosecutor's case and see whether there is

 4    any evidence to show that the chief of operations did take part in some of

 5    these military operations.  This is what we are interested in, but the

 6    answer is quite a simple one.  There was none.

 7            During the presentation of its case, the Prosecutor provided no

 8    evidence to show that in 1995, General Miletic was on the ground in

 9    Western Bosnia during -- before, during and after the operations in

10    Srebrenica and Zepa, and General Milovanovic ascertained, on the 31st of

11    May, 2007, page 12311, that General Miletic was assigned on the front line

12    for the last time when he was lieutenant colonel, so we are very far now

13    from 1995.

14            We know that some Main Staff officer did go to the area of the

15    Drina Corps in the period running from March to July 1995, and amongst

16    others General Milovanovic, the person who should have been in Western [as

17    interpreted] Bosnia.  General Milovanovic goes in April and then again in

18    May 1995. Exhibits P2891 and 5D714 confirm that.  General Milovanovic went

19    there --

20            JUDGE AGIUS:  Yes, Mr. --

21            MR. McCLOSKEY:  I'm sorry, but you may want to clear up. I think

22    there's been some translation issues that probably should be cleared up

23    now.  I hate to interrupt you, but I think you meant "1993" when you

24    said -- it says "we are far from 1995."

25            MS. FAUVEAU: [Interpretation] I did say it, we are very far from

Page 21327

 1    1995. I did say that.

 2            MR. McCLOSKEY:  I apologise, and I think we've got "Western" and

 3    "Eastern" mixed up too, but --

 4            JUDGE AGIUS:  What we have in the transcripts now, that there is

 5    no evidence from the Prosecution that General Miletic, in 1995, was ever

 6    on the ground in Western Bosnia, before, during, or after the operations

 7    in Srebrenica and Zepa; lines 20, 21 and 22 of page 22.

 8            MS. FAUVEAU: [Interpretation] Line 18 should be read as "Eastern

 9    Bosnia."

10            JUDGE AGIUS:  All right.  Having said that, I think we can

11    proceed, and then we can change whatever needs to be changed.

12            Yes, Madame Fauveau.

13            MS. FAUVEAU: [Interpretation] Thank you very much.

14            Therefore, General Milovanovic went to Eastern Bosnia in 1995, but

15    General Miletic did not go there.  We have no evidence that General

16    Miletic went there before the Srebrenica operation to observe the state of

17    the Muslim forces or the units of the Army of Republika Srpska.  Besides,

18    the observation of Muslim forces was not part of his assignment.  This was

19    the role of the intelligence services, and if these services in some

20    armies belong to the same one -- the same department as the operations, as

21    is the case in the British Army, where General Smith was in charge of the

22    operations as well as security matters, as he stated on the 5th of

23    November, 2007, pages 17462, 17463, this is not the case in the Army of

24    the Republika Srpska, where, at the Main Staff level, these two

25    departments are totally separate.  Richard Butler confirmed this on the

Page 21328

 1    28th of January, 2008, page 20581, that intelligence services and security

 2    matters are a separate branch under the responsibility of General Tolimir.

 3    But whatever the case may be, contrary to the other officers of the Main

 4    Staff, namely, General Milovanovic, who went several times during this

 5    period to the area under the responsibility of the Drina Corps, General

 6    Miletic in 1995 did not go there.  Consequently, as far as the situation

 7    in the area of Srebrenica and Zepa is concerned, he can't have seen

 8    anything whatsoever.

 9            During this period, the Prosecutor mentioned several incidents.

10    The Bratunac Brigade purportedly shelled Srebrenica on the 25th of May,

11    1995, following an order from the Main Staff.  We do not dispute the

12    shelling of the 25th of May, 1995, only we have never seen an order given

13    by the Main Staff to that effect, and the Prosecutor provided no evidence

14    of this order or that the order existed.  We have no order from the Main

15    Staff concerning this bombing, and we have no report informing the Main

16    Staff that the shelling actually took place. We have no evidence to show

17    that any information relating to this shelling ever reached the Main

18    Staff.

19            And once again General Miletic is not on the ground and can have

20    no knowledge of these events, if the latter were not reported to the Main

21    Staff.

22            Then there was the takeover of the observation post by UNPROFOR,

23    the Post Echo.  Once again, we have no detailed information that could

24    establish a connection between this and General Miletic.

25            The Prosecutor would like us to believe that this action is a

Page 21329

 1    direct consequence of the order given by General Milovanovic on the 27th

 2    of May, 1995, but this is not the case.  The two exhibits referred to by

 3    the Prosecutor on the 1st of February, 2008, at the testimony --

 4    additional testimony of Mr. Butler, Exhibit P3161, and the Zvornik Brigade

 5    Exhibit P3162, only concerns UNPROFOR members who were deployed in

 6    Gorazde.  Neither of these exhibits have any connection whatsoever with

 7    the Post Echo.

 8            However, P2894, which is the order of General Zivanovic, which

 9    relates to the operation that led to the takeover of the Post Echo, does

10    not refer to any order or action on the part of the Main Staff.  However,

11    if we were to accept the theory of the Prosecution; i.e., that the events

12    that took place at the Post Echo have anything to do with General

13    Milovanovic, this theory is not inculpatory for General Miletic.  Quite

14    the contrary, it is exculpatory, because he is not solely in charge of

15    Western Bosnia, he is there to give orders to the Drina Corps.

16            General Miletic does not personify the Main Staff.  He cannot be

17    held responsible for the acts or conducts of other members of the Main

18    Staff or other members of the army, and especially he cannot bear the

19    responsibility for the orders of his superiors, which he did not carry out

20    and which he probably was not even aware of.  And we have no evidence that

21    General Miletic purportedly took part, in one way or another, in the

22    drafting of the order provided by General Milovanovic or that he would

23    have had a hand in its implementation.

24            The Srebrenica operation had been planned within the Drina Corps,

25    and all the preparation work had been done by the Drina Corps.  No

Page 21330

 1    document, no testimony, involves the Main Staff of the Army of the

 2    Republika Srpska; namely, the planning and preparation of this operation.

 3    Quite the contrary, Mirko Trivic confirmed on the 22nd of May, 2007, page

 4    11194, that this was an operation led by the Drina Corps.  The military

 5    expert of the Prosecution, Richard Butler, on the 29th of January, 2008,

 6    stated on page 20587, and I quote:

 7             "As far as Krivaja-95 is concerned and the entire planning

 8    process that it involves, this could really have been carried out by the

 9    corps or the corps chief of staff.  It was, therefore, not necessary for

10    the Main Staff to plan every detail of this operation."

11            True to fact, on that same day, the 29th of January, 2008, page

12    20588, Richard Butler ascertained that it was not before the evening of

13    the 9th of July that the Main Staff intervened in the Srebrenica

14    operation.  A lot of things happened in the course of that evening of the

15    9th of July, 1995.  President Karadzic orders the operation to continue

16    and to enter Srebrenica.  This order given by President Karadzic

17    profoundly changes the meaning of the Srebrenica operation.

18            Richard Butler, the military expert, confirmed this on the 29th of

19    January, 2008, page 20588, that the primary objective was the separation

20    of the enclaves, and that the objective was changed during that evening on

21    the 9th of July, 1995.  This order, given by President Karadzic, was

22    passed on by General Krstic to General Tolimir.  This is Exhibit number

23    P89 [as interpreted].

24            The document forwarding the order of President Karadzic is a

25    document which, normally speaking, should have been written and signed by

Page 21331

 1    the officers who were part of the Operations Department.

 2            The military expert, on the 29th of January, 2008, stated at page

 3    20590 that this document, P849, is exactly the type of document that the

 4    operations body would prepare, but this particular document, P849, the key

 5    document involving the Main Staff in the Srebrenica operation, did not

 6    leave the Operations Administration.  It is not General Miletic who

 7    drafted it.  It is not General Miletic who signed it.  It is not General

 8    Miletic who sent it off.  There is no evidence, either, that General

 9    Miletic had any knowledge of the fact at the time.

10            Nobody explained why General Miletic and the administration in

11    charge of military operations were not involved in the forwarding of this

12    document to the Drina Corps, so we can only speculate on the matter.

13    Either General Miletic was simply not present at the Main Staff at that

14    time, which does not tell us why another officer in his administration did

15    not draft this document or for one reason or another General Miletic and

16    his administration were excluded from this part of the operation.

17            Let me emphasise once again that logically, according to the

18    military organisational structure of the Main Staff of the Army of

19    Republika Srpska, General Miletic should have, to all intents and

20    purposes, been involved in the drafting of this document.  Once again, I

21    would like to stress this.  The document is self-explanatory.  General

22    Miletic was not involved.  This document proves, as clearly as not, that

23    one cannot rely on someone's position to ascertain his responsibility.

24    Material evidence need to be shown to -- that go to the acts and the

25    conduct of a particular person.

Page 21332

 1            In the course of this trial, the Prosecutor insists on the duties

 2    of General Miletic, not his acts, and hoping thus that the Chamber would

 3    be convinced that his position was such that nobody could do without

 4    General Miletic within the Main Staff of the Army of Republika Srpska.

 5    The Prosecution is so convinced of the importance of the position held up

 6    by General Miletic that it forgot to show the proof of his acts, the only

 7    proof that would sustain a conviction of General Miletic.

 8            This document, however, proves -- disproves the theory of the

 9    Prosecution.  Indeed, the name of General Miletic is mentioned in the

10    reports that pertain to the situation on the ground, but once again none

11    of these reports mention "SR," which according to the report means "on

12    behalf of" or should be signed by him personally.

13            We know that during at that time, General Nikolai tried to contact

14    someone, a general, never mind which one at the Main Staff, and we know

15    that this happened on the 8th and 10th of July and that the reply came

16    back saying that there was no one authorised to talk to him. Perhaps --

17    P2750 [Realtime transcript read in error "P2790"], P976 [as interpreted].

18            Perhaps General Miletic was not authorised to speak to the head of

19    the Main Staff or UNPROFOR, or perhaps he just simply was not at the Main

20    Staff.  There are, at any rate, only these two possibilities; there isn't

21    a third.

22            These reports that bear the name of General Miletic and that were

23    sent to President Karadzic, are the reports which were sent on a daily

24    basis.  These reports have no link whatsoever with Srebrenica.  These

25    reports were sent every day at the same time, whatever happened, no matter

Page 21333

 1    whether there was fighting or not.

 2            Since the beginning of the war, since the first day the Republika

 3    Srpska was formed, every day an officer in charge of the administration of

 4    military operations summarises and collates the information which is sent

 5    off to the 6th Corps and to the president of the corps -- of the Republic

 6    and to the corps.

 7            Following the order of President Karadzic, the order is completely

 8    unknown to General Miletic and his administration, and that is when the

 9    Army of the Republika Srpska entered Srebrenica.

10            We then have the Main Staff document, that of General Mladic.

11    None of these orders stem from General Miletic.

12            We also have the order dated 11th of July, 1995, P3038, and then

13    on the 13th of July, 1995, Exhibit 5DP35.  Both bear the letters "SR."  So

14    two of these documents should have been signed by General Mladic

15    personally.

16            On the 11th and 13th of July, General Mladic was not at the Main

17    Staff.  General Miletic was there neither on the 11th and the 13th [as

18    interpreted] .  And General Mladic -- and there is no prove that General

19    Miletic at the time had knowledge of these orders.  Once again, the

20    Prosecutor shows no evidence that General Miletic was purportedly

21    involved, in one way or another, in the events in Srebrenica.  All the

22    knowledge that General Miletic may have had about the events in Srebrenica

23    before and during the fighting, as well as after the Army of Republika

24    Srpska entered Srebrenica, stem from the reports he received.  These

25    reports did not tell us much, and very often they were inaccurate.  We are

Page 21334

 1    very far from the Prosecution's theory according to which General Miletic

 2    would have observed the status of the Muslim forces before, during, and

 3    after the attack on Srebrenica and Zepa, would have observed the surrender

 4    of the Muslim forces after the fall of Srebrenica and Zepa; would have

 5    observed the surrender, the activities of the VRS in the areas of

 6    Srebrenica and Zepa; would have followed up on the transfer of the

 7    civilian population from Zepa and Srebrenica.  Besides, he was unable to

 8    observe or follow up on these activities for the simple reason that he

 9    wasn't there, neither he nor his subordinates were on the ground, besides

10    other officers were present.

11            How much does General Miletic know about the fall of Srebrenica

12    and the transfer of the population?  The only information that arrived was

13    on the 12th of July, 1995.  This reached the Main Staff and pertained to

14    the transfer.  This is contained in a report which was mentioned over the

15    telephone from Potocari to Panorama.  The code name is "Main Staff."  This

16    is recorded in the intercept of the 12th of July at 12.40.  This is a

17    short conversation, Exhibit number P1112, and the relevant part deserves

18    to be read in its entirety.

19            [In English]"  We are starting the relocation of those who want to

20    go toward Kladanj and entering force with trucks and buses, and a water

21    tank should be sent to give them water and food.  This morning, we

22    organise it here.  We will give them everything.  I talked with them, and

23    we will accept all of civilians who want to -- who want to and they can

24    stay.  Those who don't want to can choose where they will go."

25            [Interpretation] Indeed, there is another intercept recorded ten

Page 21335

 1    minutes later that states the contrary, but this does not involve the Main

 2    Staff.

 3            The only information that reached the Main Staff and that General

 4    Miletic could therefore have had access to stated that everything had been

 5    organised, the water, the food, and those that wished to stay could stay,

 6    and those that wished to go could go and could choose where they wanted to

 7    go.  A report indicates that the Geneva Conventions were fully respected,

 8    for if Article 49 of the 4th Geneva Convention prohibits forced transfer,

 9    paragraph 5 also prohibits forced retention.

10            The involvement of General Miletic in the Srebrenica operation and

11    the ensuing events are clearly stipulated in the conversation that was

12    recorded on the 12th of July at 12.40, when two people, discussing the

13    question of fuel, referred to a certain Miletic.  The Miletic in question

14    does not know where to find the fuel, and he does nothing to try and find

15    it.

16            The Prosecutor ascertains that the man in question is General

17    Miletic.  Well, so be it, in that case the Prosecution should accept that

18    once again General Miletic has no knowledge of anything that he should

19    have known about.  And the impact of this conversation is even greater.

20    General Miletic does nothing to try and find the fuel.  He does not get

21    involved.  This is none of his business and he does not get involved.  Of

22    course, he is in charge of drafting the report, and he does.  He drafts it

23    on the basis of the reports he gets.  He has no direct knowledge of what

24    is happening on the ground.

25            The Prosecutor will say that some documents were addressed to

Page 21336

 1    General Miletic, asking him for information or additional orders.  Yes,

 2    there are some.  We have Exhibit number P192, 13th of July, 1995, signed

 3    by Lieutenant Colonel Siromir Leftic [phoen], commander of the military

 4    police of the 65 Regiment of Protection,  Zoran Malinic, should have

 5    contacted General Miletic, but we have no evidence that Zoran Malinic did

 6    anything, according to the document.

 7            Whatever the case may be, we do not even know whether General

 8    Miletic had occasion to see this document, which, by the way, was not

 9    addressed to him.  Nobody has yet been convicted on the basis of what

10    someone else asks him or her to do without the acts and conducts of the

11    person in question --

12            THE INTERPRETER:  Interpreter's correction:  Without establishing

13    the acts of the person in question.

14            MS. FAUVEAU: [Interpretation] Yes, we do have documents stating

15    that -- P2754.  General Miletic informed the Drina Corps and the Zvornik

16    Brigade that a unit of the 1st Krajina Corps was going into the area, but

17    what is strange about this document, the Prosecution admitted in its

18    opening statement on the 27th of August, 2006, page 461, when it said,

19    speaking about the document, that it was only a matter of sending in extra

20    troops to the fighters.

21            The Prosecution stated that General Miletic was observing the

22    Muslim forces, that General Miletic only reacted and received the reports.

23    He still is a person who does not take any decisions.  It is General

24    Mladic.  This is stated by the expert on the page 1618.  If the report of

25    the Zvornik Brigade addresses the issue of prisoners, these reports do not

Page 21337

 1    reach the Main Staff.  They are sent to the Drina Corps.

 2            The military expert, Richard Butler, was quite clear when he said,

 3    on the 1st of February, 2008, on page 20971:

 4            "When we go up the chain of command, we do not address the issues

 5    that relate to the separation of people or that kind of thing."

 6            There is indeed a report which was sent to the Main Staff on the

 7    13th of July, 1995, Exhibit PP113, but I would like to say that this was

 8    specifically sent to the intelligence services, and if by any chance

 9    General Miletic did see this report, and I do say "if by any chance he did

10    see it" because this was not sent to him, he may have understood

11    that an exemplary evocation was taking place in Potocari.  Adequate

12    medical care was provided, with addition to water and food which had

13    reached the refugees, according to the report of the 12th of July, at

14    12.40, information forwarded over the telephone.

15            The reports which reached the Main Staff contain so little

16    information and are so far removed from reality that General Mladic went

17    to see -- that General Mladic had to go on the ground to check what was

18    happening [as interpreted].  This order by General Mladic is P927 on the

19    record.

20            When these officers come back to -- from the Zvornik Brigade, they

21    have not much to say.  In 2007, we have Bogdan Sladojevic who testified in

22    2027, page 14373.  In replies to Zepa, that generals of the Main Staff on

23    the ground, General Tolimir and General Mladic, and these are the men who

24    are on the ground who observe how the Muslim forces are moving and their

25    surrender.  They conduct the search operation.  They are observing the

Page 21338

 1    movements of the units of the Republika Srpska in the area, and they are

 2    the people who follow up on the transfer of the population.  Those are the

 3    people on the ground, not General Mladic, not General Miletic.  Not

 4    General Miletic.

 5            General Tolimir does send documents, reports, to General Miletic,

 6    but we have no evidence that Tolimir's proposals were ever implemented.

 7            We know that General Tolimir had asked UNPROFOR people not to come

 8    on the ground, and we know that they did come.  We know that General

 9    Tolimir asked for chemical weapons to be used, but we have never heard

10    anything to that effect.  General Krstic also writes to General Miletic

11    and informs him, on the 5th of July, 1995, document P3015, that Zepa had

12    been freed.  We know that on the 20th of July, 1995, Zepa had not been

13    liberated.  Why did such erroneous information reach General Miletic?  We

14    don't know.

15            The military expert of the Prosecutor stated on the 29th of

16    January, 2008, page 20648, and I quote:

17             "Looking at the overall information on the subject, in many cases

18    the VRS felt that the situation was going one way, whereas they discovered

19    afterwards that this was not the case.  Was it someone's intention or were

20    these mistakes?  We don't know."

21            General Miletic has no other information about the situation on

22    the ground, other than what he gets from the officers who are in the

23    field, and none of this information tells anything about anything that

24    might be criminal, irregular, or unusual.

25            So where is General -- why -- how can one establish General

Page 21339

 1    Miletic's responsibility here?  He was part of the army.  The army is not

 2    a criminal body, as such.  The mere fact that General Miletic belonged to

 3    this army and the Main Staff does not turn him into the person responsible

 4    for the acts committed in Srebrenica and Zepa, and the Prosecution showed

 5    no evidence that he, himself, was involved in one way or another in what

 6    happened in and around these two enclaves.

 7            The Prosecutor showed no evidence of the fact that General Miletic

 8    knew, before the Army of the Republika Srpska entered Srebrenica, that the

 9    enclave had been taken [as interpreted].  He provided no evidence that the

10    intention of General Miletic was to drive out the Muslim population from

11    the enclaves, to forcibly transport them, and provided no evidence that

12    such an inference can be drawn and that that would be the sole reasonable

13    conclusion.

14            Therefore, I request the acquittal of General Miletic on all

15    counts of the indictment.

16            Thank you.

17            JUDGE AGIUS:  Merci, Madame Fauveau.

18            It's time for the break, in any case, Mr. Josse.

19                          [Trial Chamber confers]

20            JUDGE AGIUS:  Mr. Josse, I suggest we have the break now, 25

21    minutes, and then --

22            MR. JOSSE:  Could I briefly mention one matter which you might

23    want to consider during the break?

24            JUDGE AGIUS:  Yes.

25            MR. JOSSE:  And that relates to timing.

Page 21340

 1            Now, Your Honour, I hope I'm going to be no more than the 90

 2    minutes I'm permitted, but could I invite the Chamber to consider what it

 3    said on the 9th of November of last year at page 17837, when Your Honour,

 4    the learned Presiding Judge, stated:

 5             "We are not going to intervene or interfere as to who should go

 6    first amongst yourselves, and I think that we can safely say that you can

 7    also agree amongst yourselves to make use of any disposable, leftover time

 8    that remains, excepting that you will have an hour and a half each."

 9            Bearing in mind that my learned friend Mr. Zivanovic has not made

10    a submission, Mr. Lazarevic has not used up all his time, am I permitted

11    to do use in excess of 90 minutes if I need to?

12            JUDGE AGIUS:  How much more?  We need to finish today, basically,

13    once we have arrived at this stage, so that next week, Monday and Tuesday,

14    we'll have the responses.  I think with your experience, Mr. Josse, you

15    can conclude in an hour and a half.

16            What I can offer is perhaps Mr. Haynes might entertain the idea of

17    going first, not exceeding, say, 20 minutes that he said yesterday and

18    that he mentioned yesterday, and then you can have the rest, but --

19            MR. JOSSE:  I'll discuss that with him, Your Honour, but I

20    think --

21            JUDGE AGIUS:  Okay.  But let's make an effort to conclude the

22    submissions -- the Defence submissions today, once we have arrived at this

23    stage, rather than have them continue on Monday, and then Monday and

24    Tuesday Mr. McCloskey will finish.  He said he will finish Tuesday

25    morning.

Page 21341

 1            MR. JOSSE:  My difficulties will become clear as I proceed.

 2            JUDGE AGIUS:  Yes, okay, thank you.

 3            Twenty-five minutes.  And the time now is 10.31.

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

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

 6            JUDGE AGIUS:  Yes.  I understand you are going first, Mr. Josse.

 7            MR. JOSSE:  May it please Your Honours.

 8            JUDGE AGIUS:  Yes, and you have an hour and a half.

 9            MR. JOSSE:  Thank you.

10            Over the last two days --

11            JUDGE AGIUS:  You're starting at 11.00.  Yes, go ahead.

12            MR. JOSSE:  -- this Trial Chamber has heard some excellent and

13    dare I say it thought-provoking submissions which we trust will give the

14    Chamber something to mull over.  Thereafter, of particular note, you might

15    think, was the first address from my learned friend Mr. Meek.  If it is to

16    be his swan song, then it's a performance that those of us who had the

17    good fortune to hear it will long remember.  He reminded us, rather

18    conveniently, bearing in mind he set the ball rolling on these 98 bis

19    submissions, of why we were here and some of the central tenets of a fair

20    criminal justice process.  Some of his assertions, in particular his

21    quotations, most -- perhaps everyone in this room will agree with and

22    cannot argue with.  Other of his remarks were perhaps a tad more

23    controversial.

24            General Gvero's lawyers look forward, with genuine relish, to our

25    opportunity to address this Chamber on the merits of the case, and we look

Page 21342

 1    forward to our opportunity to make submissions on his behalf as to why we

 2    contend the Prosecution have failed singularly and lamentably to prove the

 3    case against him, and we say that bearing in mind what has been said

 4    against our client, and in particular we note recently two rather strong

 5    attacks on our client by my learned friend Mr. Thayer, in particular, who,

 6    in these submissions, gave what we would characterize as a ranting type of

 7    argument more akin to a closing speech than one that was appropriate for a

 8    submission in the middle of a trial.

 9            But, Your Honour, the result of all this is that we, the general's

10    lawyers, realise that this is not the opportunity for us to proclaim our

11    client's innocence and it's not our opportunity to say why Mr. Thayer is

12    wrong and why his rants should be rejected by this Trial Chamber.  We do

13    assert strongly that General Gvero is an innocent man in relation to the

14    allegations made against him so far as both Srebrenica and Zepa are

15    concerned, but we appreciate that our time to deal with these particular

16    matters, our time for rhetoric, for speeches, for assertions of that sort,

17    will come later.  And as I've already said, we look forward to our

18    opportunity to make those submissions in due course and to tell this Trial

19    Chamber why the Prosecution case is so wrong.

20            In the course of the submissions I make in the next 88 minutes or

21    so, nothing should be read by this Trial Chamber as an acceptance on the

22    part of my learned leader Mr. Krgovic or myself that the Prosecution have

23    discharged their ultimate and heavy burden against General Gvero.

24            Before I turn to my main submission, which is going to relate to

25    count 8, could I say a word or two about count 7.

Page 21343

 1            We make no submission today in relation to count 7, but something

 2    that Mr. Bourgon said yesterday is of concern to us.  At page 21265 of the

 3    proceedings, Mr. Bourgon broke down the forcible transfer count and,

 4    paraphrasing, he said that it fell into three different groups; firstly,

 5    the women and children, secondly the able-bodied men, and thirdly the

 6    members of the Muslim 28th Division.  He went on to say that in his

 7    submission, count 7 applies only to the first of these groups, namely, the

 8    women, children and elderly.

 9            Now, Your Honour, let me make it clear.  We wholeheartedly support

10    that submission on behalf of General Gvero.  I dare say virtually all the

11    Defence lawyers are going to support that submission.  But the reason I

12    draw it to your attention at this stage is to ask you to consider whether

13    now is the appropriate time to make a finding in relation to that.  I'm

14    not making a submission on count 7.  Others have not made a submission on

15    count 7.  In effect, those of us who are not submitting on count 7 are

16    deprived of an opportunity to make further submissions on what could be an

17    important issue in the case, and our concern is that the Court will reject

18    Mr. Bourgon's submission, which as I say we wholeheartedly support, and we

19    will be hamstrung with that ruling for the rest of the case.  And, of

20    course, we say that our opportunity to address that important issue should

21    come at the close of the evidence, when you consider count 7 in relation

22    to General Gvero.

23            Now, how that impacts on Drago Nikolic is not a matter for me to

24    address, nor a matter for me to concern myself with, and I make no

25    comments so far as that's concerned.  I'm only concerned so far as General

Page 21344

 1    Gvero is concerned.  But in relation to him, we submit now is not the time

 2    to make that particular ruling, in particular since we are not making any

 3    submissions upon it.

 4            Now, having said what I'm not going to talk about, namely, count

 5    7, let me begin my address on count 8, the deportation count.  And some of

 6    what I have to say has already been covered by Madame Fauveau in the

 7    submissions that she made this morning.  I'm going to go into the matter

 8    in a little more detail, if I may, but forgive me if I cover ground that

 9    she has already dealt with or alluded to.

10            The offence is contrary, as we know, to Article 5(d) of the

11    Statute of this Tribunal, and it's a crime against humanity, and the

12    central thrust of the submission I'm going to make, and as I say, Madame

13    Fauveau has already made it, is that the victims, if I could use that

14    word, in that count have to be civilians, and if they're not civilians,

15    the count will fail.

16            Now, the issue of crimes against humanity and what victims of

17    crimes against humanity amount to has been extensively reviewed recently

18    at this Tribunal by the Trial Chamber in the case of Mrksic and others,

19    and the rather large tomb which I asked Madam Registrar to hand you at the

20    beginning of my submissions, is that judgement, and the reason is I'm

21    going to go through a number of paragraphs of it in some considerable

22    detail.  I've also handed a copy to my learned friend Mr. McCloskey.

23    Those of my colleagues co-defending with me will perhaps forgive the fact

24    that we haven't provided copies to them, but they can find this judgement

25    on the internet which they can access at any time.

Page 21345

 1            Now, if Your Honours would turn to section B of this judgements

 2    which is jurisdiction under Article 5 (crimes against humanity), it deals

 3    with the chapeau requirements, it then deals with issues to deal with

 4    widespread or systematic attacks, a nexus to the attack, and I'm going to

 5    go straight to the section headed "C" directed against any civilian

 6    population, and paragraph 440, please.  There, it says the attack must be

 7    directed against any civilian population.  442, the term "civilian

 8    population" must be interpreted broadly and refers to a population that is

 9    predominantly civilian in nature.

10             "A population may qualify as civilian even if non-civilians are

11    among it, as long as it is predominantly civilian.  The presence within a

12    population of members of armed resistance groups or former combatants who

13    have laid down their arms does not, as such, alter its civilian nature."

14            This jurisprudence is in line with Article 50(3) of Additional

15    Protocol 1, and I'm paraphrasing here, going on, which states that:

16              The presence within the civilian population of individuals who

17    do not come within the definition of civilians does not deprive the

18    population of its civilian character.

19            Then it goes on, Your Honours, at paragraph 443 in a section

20    headed "Applicability of Article 5" to non-civilian victims.  I beg your

21    pardon, I said -- I've got it right, 443.  I was right.

22            A related but distinct legal issue arises in the circumstances of

23    the present case.  While it has been clarified by the jurisprudence of the

24    Tribunal that mere presence of non-civilians among what is a predominantly

25    civilian population does not alter the civilian character of the

Page 21346

 1    population for the purposes of this chapeau requirement of Article 5, the

 2    jurisprudence of the Tribunal has not yet been called upon to pronounce

 3    the question whether the notion of crimes against humanity is intended to

 4    apply to crimes listed in Article 5, when the individual victims of such

 5    crimes are not civilian.

 6            And then the Trial Chamber deals with the question it posed to the

 7    parties.  It then deals with the submissions made by the parties.  I'm not

 8    going to deal with that.  I'm really going to turn perhaps to the answer

 9    and the discussion.  Paragraph 448, please.

10            At the outset, the Chamber would observe that all parties appear

11    to be in agreement that the victims of a crime against humanity must be

12    civilians.  The Defence for each of the three accused, by explicitly

13    advancing this proposition, and Prosecution implicitly by accepting that

14    all victims of the crime charged under Article 5 of the present indictment

15    qualify as civilians.

16            The issue in dispute appears to be the definition of "civilians"

17    that should be applied.  And thereafter, in the succeeding paragraphs, I

18    can inform this Chamber that the judgement sets out the history of the

19    matter.  I'm not going to deal with that in any great detail, but we can

20    go to paragraph 451, please, where it says:

21             "This approach, however, was rejected by the Blaskic Appeals

22    Chamber in 2004, when it overturned the Trial Chamber's decision.  The

23    specific status of the victims at the time of the crime may be

24    determinative of his civilian or non-civilian status."

25            Basing itself on Article 51 of Additional Protocol 1, the Appeals

Page 21347

 1    Chamber held that members of the armed forces or members of militias or a

 2    volunteer corps forming part of such armed forces cannot claim civilian

 3    status, and neither can members of organised resistance groups.

 4            Going on, if I may, to the next paragraph, it says that the

 5    jurisprudence was later followed by the Appeals Chamber in Kordic, which

 6    says that the term "civilian" needs to be defined in accordance with

 7    Article 50 perhaps I should say "(1)" of Additional Protocol 1.

 8            Moving on to 453, it says in some, the jurisprudence of the

 9    Tribunal consistently refers to Article 50 of Additional Protocol 1 when

10    interpreting the term "civilian" in Article 5 of the Statute.  It accepts

11    that the mere presence of non-civilians among what it is predominantly a

12    civilian population does not alter its characteristic.  Again

13    paraphrasing, Likewise it adopts the definition of "civilian" in Article

14    50(1) which has to be reflective of the customary international law.

15            If I may move to paragraph 555, please, the judgement then deals

16    with the submission that the Prosecution had made in relation to Blaskic.

17    In the middle of that paragraph, it says:

18             "This is precisely why the Blaskic Appeals Chamber overturned the

19    Blaskic Trial Chamber.  The criterion is not the position of the victims

20    at the time of the crime, but their status as civilians under Article 50

21    of Additional Protocol 1, together with Article 4 of Geneva Convention 3,"

22    and then Article 43 of additional Protocol 1.

23            Paragraph 457 deals with a terminological evaluation, which might

24    be important, and basically it says that whether the conflict is

25    international or non-international, it amounts to the same.  That's how

Page 21348

 1    it's summarised, that paragraph, and we can then move on to 458, please,

 2    which is particularly important in the context of this case.

 3            In addition to the reasons set out above, there is yet another

 4    reason why the Chamber cannot accept the Prosecution's proposition that

 5    the definition of "civilian" under Article 5 of the Statute is broad and

 6    includes all persons who are not participating in hostilities, including

 7    combatants who order combat.  Certain crimes listed in Article 5 of the

 8    Statute can only be committed against civilians, not against combatants.

 9    For example, deportation, under Article 5(d), cannot be committed against

10    prisoners of war.

11            And the paragraph then, Your Honours, goes on and deals with a

12    brief analysis of the historical origins of the crimes against humanity

13    dealing with 6(c) of the Nuremberg Charter, goes on and deals with the

14    requirement about an attack being widespread or systematic, and then

15    importantly, towards the bottom of the paragraph, in that jurisprudence a

16    preponderance criteria has been developed.  The population must be

17    preponderantly civilian, inspired by Article 50(3) of Additional Protocol

18    1, but this does not have the effect of abandoning the underlying

19    principle, i.e., the crimes against humanity as opposed to war crimes, are

20    directed against civilian victims.

21            Paragraph 460 really deals with the importance of the Tribunal not

22    filling the gap, if there be a gap, in the law through what's described as

23    the telelogical interpretation, and I draw that to the Chamber's attention

24    and what the Mrksic judgement said in that paragraph.

25            461 says:

Page 21349

 1             "In view of the above, the Chamber concludes that the term

 2    'civilian' in Article 5 of the Statute has to be interpreted in accordance

 3    with Article 50 of Additional Protocol 1, and therefore does not include

 4    combatants or fighters or the combat."

 5            462 says that the Chamber is aware, and I'm paraphrasing, that the

 6    Tribunal hadn't yet decided this particular issue.  The jurisprudence

 7    accepts that the attack requirement for crimes against humanity allows for

 8    the presence of non-civilians in the population.  That is, the target of a

 9    widespread or a systematic attack.  There is nothing to suggest that a

10    crime listed under Article 5 of the Statute would qualify as a crime

11    against humanity if the victims were non-civilians.

12            Excuse me.

13                          [Defence counsel confer]

14            MR. JOSSE:  Your Honours, you'll be glad to hear I'm very near the

15    end of my review of this particular judgement, because we get to the

16    conclusion, which is paragraph 463 and 464, so the conclusion in this

17    judgement was:

18             "The Chamber therefore concludes that for the purposes of Article

19    five of this Statute, the victims of the underlying crime must be

20    civilians.  If the victims are non-civilians, the more appropriate charge

21    is war crimes.  In the view of the Chamber, this is a proper and specific

22    requirement for the application of Article 5, which takes into account the

23    historical origins and developments of crimes against humanity as a

24    category distinct from war crimes.  In reaching this conclusion, the

25    Chamber does no more than to interpret Article 5 of the Statute in the

Page 21350

 1    context of the factual situation in which it is called upon to apply the

 2    article, which is without precedent in the Tribunal's jurisdiction.

 3             "The analysis above leads the Chamber to conclude that in order

 4    for a crime in Article 5 to constitute a crime against humanity, it is not

 5    sufficient for that crime to be part of a widespread or systematic attack

 6    against the civilian population.  The victims of the crime must also be

 7    civilians.  Accordingly, a crime listed in Article 5, despite being part

 8    of a widespread or systematic attack against the civilian population, does

 9    not qualify as a crime against humanity if the victims were

10    non-civilians."

11            Finally, paragraph 464 says there is no case law defining the

12    required mens rea.  The jurisprudence has only considered the mens rea in

13    relation to the armed conflict, the nexus requirement and the attack.  And

14    then the remaining words are extremely important, and I'm going to analyse

15    those in detail in a few moment's time:

16             "As the civilian status of the victims is only a jurisdictional

17    requirement and not an element of the crime, the Chamber believes that it

18    is sufficient for the perpetrator to have been aware of the factual

19    circumstances that established the status of the victim."

20            And the Chamber might wish to look at the footnote there, which is

21    1722, which says:

22             "The Chamber does not consider this to be an element of the crime

23    that needs to be established by the Prosecutor.  Under International

24    Humanitarian Law, the civilian status of a victim is presumed, absent

25    evidence to the contrary."

Page 21351

 1            And then it quotes Article -- Additional Protocol 1, Article

 2    50(1), where it says:

 3             "In case of doubt whether a person is civilian, that person shall

 4    be considered to be a civilian."

 5            And, Your Honour, that may have some practical implications in

 6    this case, which I'm going to come to in a moment.

 7            The Defence for General Gvero accept and respectfully endorse

 8    everything stated in that judgement, except that bit at the very, very end

 9    which relates, of course, to the burden of proof.  And as I say, I'll come

10    to that in a moment.

11            It might be worth, at this juncture, a very quick look, in terms

12    of the framework of this legislation, for the Chamber to have in front of

13    it both Article 50 from Additional Protocol 1, I think it is, and also

14    Article 4, Geneva Convention 3.  We've got copies of those, if that's of

15    assistance to the Chamber, and perhaps we could hand those out.

16            JUDGE AGIUS:  Thank you, Mr. Josse.

17            MR. JOSSE:  And I know it's being handed up, and since you're

18    going to have it in front of you, it's going to save me quite a lot of

19    time.  But basically the Chamber will see how Article 50(1) of Protocol 1

20    defines "civilian" in relevant part by exclusion from the category of

21    combatants, and then, in conjunction with that, the Chamber can look at

22    Article 4 of Geneva Convention 3, which defines at some length what a

23    combatant is.

24            As I say, I'm not going to go through that now, but that might be

25    useful for later.

Page 21352

 1            What the Defence do say is that the men who crossed the Drina, or

 2    certainly to adopt the words, in fact, of the Trial Chamber in the Mrksic

 3    judgement, the preponderance of those men were undoubtedly members of an

 4    armed forces, they were combatants.  Exactly which category of Article 4

 5    they fit into is not something we suggest we need to concern ourselves

 6    with, but the legislation is there -- or the convention is there, perhaps

 7    I should say, if it's of assistance to the Trial Chamber.  We contend it's

 8    certainly not our duty, that is, those defending, at this stage or indeed

 9    any stage of the case, to say which of the criterion Article 4 these men

10    fitted into.

11            Now, Your Honour, I said I was going to deal with this issue of

12    the burden of proof, because it's quite seriously problematical, we

13    suggest, what is stated in that -- in paragraph 464 and footnote 170 of

14    1722 of the judgement we've just been through in some detail.

15            It appears, we would suggest, from a reading of the Mrksic

16    judgement, that the status of the victims in question in that case was not

17    actually in dispute, bearing in mind the concessions made by the parties,

18    so it probably didn't matter who or in what manner the burden of proof

19    actually lay in that case.

20            In this case, as will become apparent when we look at the evidence

21    in a few moments' time, it probably does matter, and the Defence

22    emphatically reject any submission that the burden of proof on this issue

23    shifts to the Defence.

24            We have had an opportunity to, for example, have a cursory glance

25    at the international edition of Archbow, and at no point does that

Page 21353

 1    textbook suggest that the burden ever shifts in international criminal

 2    law.  Were it to do so, we would suggest, it would have to shift by an

 3    express provision in a statute.  It can't shift in any other manner.  In

 4    short, if it's a requirement of Article 5 of the Statute that the victims

 5    be civilians, then we contend that the Prosecution need to prove that in

 6    the normal way.

 7            We can advance some brief explanation as to why we think the Trial

 8    Chamber in Mrksic ended up with the conclusion that it did.  If one looks

 9    at footnote 1722, we see the reference to International Humanitarian Law,

10    and under International Humanitarian Law, it might well be right, in case

11    of doubt whether a person is a civilian, that person shall be considered

12    to be a civilian.  Indeed, I have no reason to suppose it's not right.

13    That is correct in International Humanitarian Law, but that is not to say

14    that that is the position in international criminal law.  And we submit

15    that International Humanitarian Law needs to be read in the light of

16    international criminal law and, in particular, the golden thread of

17    criminal justice, which is the burden of proof, and therefore we suggest

18    the Mrksic judgement, exemplary as it is, in that regard simply can't be

19    right, because the reality is, if it's right, the burden on this quite

20    important issue shifts, and if the burden shifts, then it's undermining

21    what I've already described as a golden thread of criminal justice.

22            Now, the importance of that is going to become clear, I hope, in

23    the next ten minutes or so, when I briefly review the evidence on this

24    particular topic.

25            What is the evidence in regard for the combatant or civilian

Page 21354

 1    status of the men who crossed the Drina?  Well, Your Honour, there are a

 2    significant number of documents in evidence, we would suggest, which

 3    indicate that this was an armed brigade, and I'm going to summarise them

 4    fairly quickly, I hope; first of all, 6D83, which doesn't need to be put

 5    into e-court and anyway shouldn't to be broadcast, but it's a document

 6    from Avdo Palic to the 1st Corps of the Armed Forces of the Sarajevo,

 7    dated the 2nd of February, 1994, giving some background to the Zepa

 8    military detachments.  There's 6D73, dated the 17th of February, 1995,

 9    which deals with helicopter flights and the arming of the Zepa Brigade by

10    the ABiH.  There's 5D265, which in fact is a document dated 28th of May,

11    1996, but dealing with events a year earlier, and again the supply of the

12    Zepa Brigade.  There's evidence from Witness 49 of weapons and ammunition

13    being delivered to Zepa by helicopter in the second half of 1994 and early

14    1995, at pages 9722 and 9783 of the transcript.  There's the development

15    of the arsenal of the Zepa Brigade described by the witness Savcic at

16    15330.  There's evidence, Your Honours, of coordination between the ABiH

17    and the 1st Zepa Light Brigade; for example, 6D73, dated the 17th of

18    February of 1995, 5D228, dated the same day, an order from Brigadier

19    General Hadzihasanovic to, amongst others, the 1st Zepa Brigade Command,

20    6D75, an instruction dated the 2nd of June, 1995; from a Captain Bektic to

21    the Zepa Brigade giving military instructions.  There's 6D77, dated the

22    29th of June, 1995; a report from Ramiz Becirovic to both Tuzla and to

23    Zepa.  There's the evidence of Mirko Trivic as to what he discovered, in

24    terms of opposition, military opposition, that is, when he arrived in Zepa

25    on the 13th of July, and what he saw thereafter.  That's at page 11903.

Page 21355

 1            MR. McCLOSKEY:  If I could maybe save you some time, I will

 2    stipulate that significant numbers of those men that went across the

 3    river, perhaps even the majority, would be considered part of the army, if

 4    that will help.  I think the facts are clear about that.

 5            MR. JOSSE:  Well, Your Honour, I smile, because that's why I

 6    wanted a right of reply.  You see, the whole issue here was I, of course,

 7    have never known exactly how the Prosecution were going to respond to this

 8    submission.

 9            JUDGE AGIUS:  Please proceed.  Forget the reply.  If there is a

10    real need for a reply, we might consider that then, but for the time being

11    we have no intention of doing that.

12            MR. JOSSE:  No, I understand, and in which case I'm going to go

13    on, if I may.

14            JUDGE AGIUS:  Yes, please, please, go ahead.  But do take into

15    account what Mr. McCloskey has just said.

16            MR. JOSSE:  Yes.  Well, as best I can.

17            There's 6D104, which is similar evidence, dated the 13th of July,

18    1995.  I will deal with this very quickly, because I want to put it on the

19    record.  5D275, 6D34.  And then 6D107 I'll deal with in a little more

20    detail.  That's dated the 18th of July, and it's from Mr. Izetbegovic to

21    General Delic.  Number 2 in that document, it says:

22             "Perhaps in this case we could insert a brigade or battalion of

23    soldiers to Zepa across the forest path and thus continue the combat with

24    more success.  These men from Zepa say they could find between 500 and

25    1.000."

Page 21356

 1            Similarly, the following day, 6D36, a letter from the president of

 2    Zepa to Mr. Izetbegovic, where he says, amongst other things, the troops

 3    continue to resist.

 4            And, Your Honour, my final point in relation to this is rather

 5    ironic, bearing in mind Mr. McCloskey's helpful intervention, was a

 6    similar intervention that he made when I think it was me but it may have

 7    been another counsel was cross-examining Mr. Dzebo at 9635 of the

 8    transcript, where Mr. McCloskey says:

 9             "Just to remind counsel these issues are not in contest. We've

10    gone over this issue and the policy of the Bosnian army, and these have

11    been part of this Prosecution's case for a long time.  So this witness is

12    answering his question, we could go on forever with this issue, which is

13    really not in context."

14            If I could mention briefly Ms. Palic, because she doesn't help the

15    Prosecution in relation to this particular issue.  At 6918 of the

16    transcript, she says:

17             "I knew there were negotiations on the surrender of Zepa,

18    surrender of the army, evacuation of civilians."

19            And then at 6964, she's talking about 26th-27th of July:

20             "Avdo of course refused to surrender at that time.  He received

21    reports that General Smith was heading to Zepa to arrange to negotiate

22    about the fate of the troops and that's what I also heard from Visoko."

23            So we obviously rely heavily on her use of the word "troops" in

24    that context.

25            We would invite the Chamber to examine in this regard the evidence

Page 21357

 1    of Witness 49 at page 9819, where he was commenting on an UNPROFOR

 2    document to Lieutenant General Janvier, which talks about there being

 3    1,500 BiH troops remaining in Zepa, and Witness 49 confirmed that.

 4            General Smith's evidence was of a similar tenor at 17633 of the

 5    evidence and a few pages thereafter.  General Smith's clearly of the view

 6    that he was dealing with the men in the hills, and they were military men.

 7            Now, Your Honour, one of the issues that we are not sure we need

 8    to deal with at this particular juncture, but feel we better, well,

 9    embrace it, is the position of the SJB and Territorial Defence of Zepa.

10    Now, again, if Mr. McCloskey is going to concede that they are combatants,

11    then I don't need to develop this particular submission.  But unless he's

12    prepared to do that, I'm going to have to go on and try and submit that

13    they clearly did form part of the combatant body.  I should say, in fact -

14    the thought only occurs to me now - that in fact there is no evidence, as

15    such, that anyone from the SJB or the TO actually crossed the Drina.  I'm

16    going to turn in a few moments to the one witness we've heard from.

17    That's PW-155.

18            JUDGE AGIUS:  Yes, Mr. McCloskey.

19            MR. McCLOSKEY:  Yes, I think the one witness you're referring to

20    was a police officer.  I will look over the weekend, but it strikes me

21    that a police officer is not a civilian.  But I would also remind counsel

22    that the other witness said that he was a civilian, and at this stage, at

23    the 98 bis stage, taking that in the light most favourable to the

24    Prosecution and the inference that this group is much like the Srebrenica

25    column, there are going to be civilians in it, at this stage -- this is a

Page 21358

 1    fascinating argument, but at this stage I believe it's not appropriate,

 2    because the evidence, as it sits, is in our favour.  But, again, that's so

 3    you know our position.  Perhaps that will help you.

 4            MR. JOSSE:  That's very helpful.

 5            When Mr. McCloskey talks about the other witness, does he mean

 6    other than 155?  Was he talking about Mr. Dzebo.

 7            MR. McCLOSKEY:  I can get you -- it's the fellow who did actually

 8    go across the river.

 9            MR. JOSSE:  That's 155, and I'm going to turn to his evidence in

10    some detail.

11            We had always anticipated that the Prosecution response in this

12    submission was likely to rely on 155, and I'm going to address that,

13    square on, in a few moments' time.

14            JUDGE AGIUS:  Yes, go ahead.

15            MR. JOSSE:  Your Honour, I think in the light of what

16    Mr. McCloskey has just said, the Chamber will be relieved to hear I'm not

17    going to go through the competence status of the SJB and the TO.  It

18    appears that he has basically conceded that.

19            JUDGE AGIUS:  So you'll take less than the 90 minutes?

20            MR. JOSSE:  Well, I'm very keen to say a few other things about

21    one other topic, but we'll see.

22            MR. McCLOSKEY:  You know, I wouldn't take it as conceding that.

23    Whether a police officer is acting under his authority, a police officer

24    is a big issue, but I --

25            JUDGE AGIUS:  You'll have a right to respond, Mr. McCloskey.

Page 21359

 1            MR. JOSSE:  Could I -- I'll perhaps deal with that in passing when

 2    I look at 155 in a few moments' time.

 3            Your Honour, could we next turn to the issue of the mens rea of

 4    this offence, because we go back, in our submission, to paragraph 464 of

 5    the Mrksic judgement, because I am trying to have my cake and eat it,

 6    because having criticised that part of the judgement where it deals with

 7    the burden of proof shifting, by the same token we do rely on what that

 8    judgement says in terms of the mens rea for this offence, because it

 9    states, and I've read it before:

10             "It is sufficient for the perpetrator to have been aware of the

11    factual circumstances that establish the status of the victim."

12            This, we would suggest, indicates that the mens rea is that the

13    perpetrator needs to know that the status of the victim is, in fact, a

14    civilian rather than a combatant, bearing in mind everything that we've

15    hitherto said about Article 5.

16            In relation to the mens rea, in this case we contend that the

17    Serbs who collectively for this purpose can be described as the

18    perpetrators, consistently referred de facto to this group of men in its

19    entirety as combatants.  They expressed, that is, the alleged

20    perpetrators, their willingness to afford POW status to these men and also

21    to participate in prisoner exchange.  By way of example, we'd invite the

22    Chamber to look at 6D103, a document dated the 19th of July, where it

23    talks at number 4 about a Serb condition, a list would be compiled of

24    these men by the Red Cross, and they would be taken to a holding centre

25    for processing and they would be exchanged after an agreement is reached

Page 21360

 1    "with our government."  Number five talks about all-for-all exchange, and

 2    so on, looking at that document.

 3            JUDGE AGIUS:  Mr. Josse, please always keep a distinction between

 4    Serbs, that is, Serbs from Serbia, and Serbs, Bosnian Serbs, because we

 5    would like to know exactly where, to limit or distinguish between the two

 6    ethnicities.

 7            MR. JOSSE:  Yes, of course I'll do that, and I appreciate that

 8    particularly bearing in mind the facts of this count, that is important

 9    because of where these men indisputably ended up.  The document I was

10    referring to clearly refers to the Bosnian Serbs, in our submission, but

11    the Chamber will perhaps need to read it for themselves.  I mean,

12    paragraph 5 talks about Mladic and Tolimir, immediately before the bit

13    that I just read out.

14            JUDGE AGIUS:  Thank you.

15            MR. JOSSE:  Witness Tom Dibb, at page 16371 of the transcript,

16    said that Mladic would like to get into a prisoner swap with ABiH troops

17    from Zepa and BSA prisoners.  And on the other side he was commenting that

18    word from Sarajevo was to hang on, and they wanted an all-for-all

19    exchange.

20            6D108, which is a Baxter document dated the 26th of July, 1995,

21    says at one point:

22             "Secondly, that the Bosnian fighters will lay down their weapons

23    and accept POW status on the basis of a putative POW exchange."

24            And it goes on about those sort of negotiations.

25            It says later on that Torlak stated that Mladic still supported

Page 21361

 1    the proposals for an all-for-all POW exchange, that is, 1,500 to 2.000 men

 2    of military age from Zepa, in exchange for the BSA POWs held by the

 3    Bosnian government.  And then later on it goes on about guarantees that

 4    Mladic was giving in relation to this POW exchange.

 5            Similarly, P2496, an undated document also from Lieutenant Colonel

 6    Baxter, talks about a POW exchange, and we suggest that if one looks at

 7    these documents, it's quite apparent that as far as the Bosnian Serbs were

 8    concerned, the alleged perpetrators, these men were military men, were

 9    combatants, and were not civilians, and therefore another hurdle the

10    Prosecution need to get over at this juncture is that of the mens rea of

11    this offence as it is defined in the Mrksic judgement.

12            Perhaps I should also add, in relation to this argument, we'd

13    invite the Chamber to look at the evidence of Colonel Trivic at page 11903

14    in this regard, his belief that these men were combatants.

15            And at paragraph 480 of the Mrksic judgement - perhaps you could

16    turn to that for a moment - the situation, in fact, in that case, in

17    relation to this issue, appears quite similar.  If I could go to the

18    middle of that paragraph, it says:

19             "Given the evidentiary difficulties, the absence of adequate

20    evidence before this Chamber to establish a role of a few of those victims

21    in the Croat forces in Vukovar does not establish that these victims had

22    no such role or that the Serb forces acted in error in some cases.  These

23    matters cannot be resolved on the available evidence.  It is established

24    by the evidence, however, and the Chamber finds that the member of the

25    Serb forces who had custody of the victims on 20th November 1991 and those

Page 21362

 1    who executed them that evening and night at Opcara acted in the knowledge

 2    and belief that the victims were involved in the Croatian forces at

 3    Vukovar.  In their awareness of the factual circumstances, the victims

 4    were prisoners of war, not civilians.  That, we say, is akin to the

 5    situation so far as count 8 is concerned and the mens rea of the alleged

 6    perpetrators of that alleged crime.

 7            Now, Your Honour, we had prepared further submissions on the

 8    history of Article 5, in effect, and of the necessity for victims of

 9    crimes against humanity to be civilians.  Now, I'm going -- the Court will

10    be grateful relieved to know I'm going to hugely summarise that by simply

11    saying that if one looks at the juxtaposition of Article 147 in Geneva

12    Convention number 4, and Article 4 -- excuse me --

13            JUDGE AGIUS:  Do you contest that, Mr. McCloskey, that in terms of

14    Article 5 they need to be civilians?

15            MR. McCLOSKEY:  Absolutely.

16            JUDGE AGIUS:  Okay.

17            MR. McCLOSKEY:  And I hope he'll look at the Krstic law.

18            JUDGE AGIUS:  I have asked you this question so that no one gets

19    carried with the idea that there is agreement that Article 5 is to be

20    interpreted in that way and then in no other way.

21            MR. McCLOSKEY:  And I think everyone knows this is on appeal and

22    this issue will be dealt with.

23            JUDGE AGIUS:  Yes, exactly.

24            MR. JOSSE:  That's very helpful.  I am going to go through it,

25    then, if I may.

Page 21363

 1            JUDGE AGIUS:  By all means, within the 90 minutes.

 2            MR. JOSSE:  Indeed.

 3            We would -- I am going to summarise it, however.

 4            Basically, we suggest that the precursor of Article 5 is Article

 5    6(c) of the Nuremberg Charter, which defines a crime against humanity as

 6    "committed against any civilian population and includes deportation."

 7    That's taken on in Article 5(c) of the Charter of the International

 8    Military Tribunal for the Far East, in similar terms.  Article 2(1)(c) of

 9    (Allied) control council law in number 10 talks about the law in similar

10    terms, and the finding of the United States Military Tribunal in the case

11    of Alfred Krupp et al also deals with this point and was cited approvingly

12    at paragraph 291 of the Stakic appeals judgement in this Tribunal.

13            Going back through the history of it, in effect Geneva Convention

14    number 4 Article -- of 1949 deals with civilian protection.  It sets it

15    out, and we submit that the avoidance of any doubt -- could I have a

16    moment?

17                          [Defence counsel confer]

18            MR. JOSSE:  For the avoidance of any doubt and for the record,

19    Convention 4, Article 4, simply says:

20             "Persons protected by the Geneva Convention, relative to the

21    treatment of prisoners of war of 12th August 1949 shall not be considered

22    as protected persons within the meaning of the present convention," which

23    we say emphatically refers to civilians and proves our point again.

24            Finally in this regard, a recent ICRC study on customary

25    international law, one of 2005, states as follows at Rule 129:

Page 21364

 1             "Parties to an international armed conflict may not deport or

 2    forcibly transfer the civilian population of an occupied territory, in

 3    whole or in part, unless the security of the civilians involved or

 4    imperative military reasons so demand."

 5            And it says something similar in relation to non-international

 6    armed conflict.

 7            Your Honour, I said I would move on, and I'm going to, to PW-155,

 8    because that is something we need to address head-on, and we concede we

 9    need to address that head-on.

10            As is accepted by the Defence, he is the only victim, using that

11    word advisedly, of this crime, or alleged crime perhaps I should say, to

12    have given evidence before this Tribunal.

13            We suspect that the Trial Chamber might want or need, for the

14    purpose of this submission, to scrutinize his evidence very carefully.

15    Much of his evidence does not stand up to much examination or belief.

16            On the essential point, it appears that he actually claimed he

17    crossed the Drina River with one other person only.

18            Again, if I can have a moment, I can give you the citation for

19    that.

20            6836 of his evidence.

21            Leave aside for a moment whether his evidence is truthful or not.

22    Taken at its highest, we suggest that those two people could not possibly

23    be said to be a representative sample of the alleged victims of count 8.

24            If we could move into private session for a moment.

25            JUDGE AGIUS:  Yes, let's do that.  One moment, Mr. Josse.

Page 21365

 1                          [Private session]

 2  (redacted)

 3  (redacted)

 4  (redacted)

 5  (redacted)

 6  (redacted)

 7  (redacted)

 8  (redacted)

 9  (redacted)

10                          [Open session]

11            JUDGE AGIUS:  We are back in open session, Mr. Josse.

12            MR. JOSSE:  What does this amount to?  Well, we, of course, submit

13    that the victims of count 8 must be viewed as civilians.  We suggest that

14    the preponderance of the evidence overwhelmingly suggests that in fact

15    they were combatants.

16            We go on and submit that, in any event, it's for the Prosecution

17    to prove the opposite, in other words, that they were civilians, and of

18    course remembering the words of the Trial Chamber in Milutinovic and the

19    test at the 98 bis stage of proceedings, "so that a reasonable trier of

20    fact could be satisfied beyond a reasonable doubt" that they were

21    civilians.  We suggest that that simply hasn't happened.

22            We've already accepted that there are arguments the Prosecution

23    have in regard to PW-155.  We've already said he appears to be the only

24    victim called in relation to count 8, and he describes crossing the Drina

25    with one other person only.  He's silent about all the other alleged

Page 21366

 1    victims of this particular count.  So we suggest that his evidence, in

 2    effect, is de minimis on the count and doesn't help the Prosecution at

 3    all.

 4            We also submit that his evidence, in the light of the vast amount

 5    of evidence to the contrary of what he's saying, i.e., that these men were

 6    combatants, could not allow a reasonable trier of fact to be satisfied

 7    beyond a reasonable doubt at this juncture.

 8            We go on and submit this:  That even if his evidence was thought

 9    at first blush to support the Prosecution case, then he's a classic

10    example of the other limb of 98 bis, where, in the Milutinovic judgement,

11    Judge Bonomy said:

12             "However, if the only relevant evidence is so incapable of belief

13    that it could not properly sustain a conviction, even when the evidence is

14    taken at its highest for the Prosecution, then the motion must succeed."

15            Now, Your Honour, it's all very well Mr. McCloskey saying there's

16    a very low hurdle to cross, but there is a hurdle to cross, and you, as a

17    tribunal of law rather than as a tribunal of fact, do need to make a

18    qualitative judgement.  That's what the law says, and you do need to look

19    at this particular evidence.  Of course, my submission, we only get to

20    this point, let me emphasise again, if all my previous submissions are

21    rejected, about the fact that he only describes crossing the Drina with

22    one other person, there's no evidence about any of these other men at all,

23    we totally reject Mr. McCloskey's assertion that an inference can be

24    drawn.

25            What inference from where?  I mean, why, why, why does it follow

Page 21367

 1    that the column in Srebrenica is anything like these men in Zepa?  There's

 2    no basis.  That's pure speculation, not inference at all.  The Chamber

 3    mustn't speculate, can only infer from evidence, and in fact the evidence

 4    suggests the opposite, the inference suggests the opposite.

 5            As -- but we submit, as I've already said, that the limb I've just

 6    read out from the 98 bis test as annunciated by Judge Bonomy is there for

 7    a particular, and it designs to this particular situation where the

 8    evidence is so flimsy, where the witness admittedly is so incapable of

 9    belief, combined with all the other factors in the case, that it simply

10    can't be right to let a case go to the tribunal of fact on that basis

11    alone.

12            Your Honour, could I make this reference as well to remark in

13    relation to something else that Mr. McCloskey helpfully said.  The

14    evidence is one thing, that is, the test as enunciated in Rule 98 bis, and

15    it's accepted, as it must be, by the Defence that the hurdle the

16    Prosecution need to get over is a very low one.  But the law is different.

17    The law isn't a case of this Chamber making a determination of law that's

18    most favourable to the Prosecution.  The law is either right or wrong.

19    You're being invited by us to make a ruling as to law, so far as this

20    particular count is concerned.  What the Chamber can't do, we suggest, is

21    to say, "Well, we're going to give the most favourable ruling of law to

22    the Prosecution because that's in line with the 98 bis test."  That's not

23    right.

24            Like any decision of law, you, the Chamber, need to come to a

25    decision, and it's a right-or-wrong answer, or a yes-or-no answer is

Page 21368

 1    perhaps the best way for me to put it.  It's a heavy duty to perform, but

 2    it's one that these accused can expect you to perform, and no doubt you

 3    will do so.  But we do reject any suggestion that because the law might be

 4    equivocal, that favours the Prosecution. That simply isn't the position.

 5    Law is completely different to facts.

 6            Could I have a moment.

 7                          [Defence counsel confer]

 8            MR. JOSSE:  I have very nearly finished on this topic.  I've been

 9    reminded that I've forgotten to mention something which might be

10    important, particularly so far as PW-155 is concerned, so excuse me if I

11    take this slightly out of turn.

12            But PW-155 conceded -- we'll need to go into private session,

13    please.

14            JUDGE AGIUS:  Let's go into private session, please.  One moment.

15                          [Private session]

16  (redacted)

17  (redacted)

18  (redacted)

19  (redacted)

20  (redacted)

21  (redacted)

22  (redacted)

23  (redacted)

24  (redacted)

25  (redacted)

Page 21369

 1  (redacted)

 2  (redacted)

 3  (redacted)

 4  (redacted)

 5  (redacted)

 6  (redacted)

 7  (redacted)

 8  (redacted)

 9  (redacted)

10  (redacted)

11  (redacted)

12  (redacted)

13  (redacted)

14  (redacted)

15  (redacted)

16  (redacted)

17  (redacted)

18  (redacted)

19  (redacted)

20                          [Open session]

21            JUDGE AGIUS:  We are now in open session, Mr. Josse.

22            MR. JOSSE:  PW-155 confirmed, 6831, that he participated in the

23    defence of Zepa after the fall of Srebrenica, when there was intense

24    shelling and attacks on the lines, and he also accepted that he was at a

25    Stublik [phoen] check-point.  He monitored the Drina Canyon to monitor

Page 21370

 1    whether Serb soldiers would enter the village and kill civilians.  We

 2    would suggest that by his own admission there, that categorises him as a

 3    combatant.

 4            Excuse me for dealing with that in a slightly disjointed manner,

 5    but I've rightly been reminded that that was an important piece of

 6    evidence, and we would invite the Chamber to consider it.

 7            So, Your Honour, broadly speaking, I've got to the end of this

 8    part of my submission.  I hope that the position is clear.  We say that

 9    these men were clearly combatants.  We've dealt with PW-155.  We say the

10    burden is on the Prosecution, it can't and doesn't shift.  And we say that

11    based on that, there simply can be no case to answer, in a true legal

12    sense, true strict legal test, exactly what 98 bis is here for, in

13    relation to that particular count for General Gvero and clearly result

14    that the -- all the other accused to meet and to answer.

15            Now, Your Honour, I was going to move on and deal with the issue

16    that was referred to yesterday by Mr. Lazarevic at 21301 of the

17    transcript, where he made submissions in relation to paragraph 31(1)(c) of

18    the indictment.

19            Again, the Chamber will be greatly relieved to know that the wind

20    has been rather taken out of my sails by the concession of Mr. McCloskey.

21    It's an interesting concession, because of course it suggests that counts

22    can be split, contrary to Trial Chamber judgements in Milutinovic,

23    Milosevic, Krajisnik, and perhaps other cases that have suggested that

24    counts can't be split at this particular juncture of a case, because of

25    course if the Prosecution is able to make the concession, then in reality

Page 21371

 1    the Prosecution is conceding that part of a count goes at this particular

 2    juncture.  But on reflection, I'm not going to get into an academic

 3    discussion as to whether that's the right thing to do or whether it's

 4    possible to do.  Clearly, we accept the concession, and we're glad that we

 5    don't have to answer that part of the count.

 6            There is an argument, we would contend, to say that where a count

 7    alleging murder, and in this case multiple murders is set out in this

 8    particular way, it simply can't be right to debar a Defence submission on

 9    the base that it all forms part and parcel of one count.  After a

10    resumption of the offences, these are allegations of multiple murder to be

11    made, and if there is no case to answer in relation to particular multiple

12    murder, then the defendant is surely entitle to do make a submission at

13    this particular stage.

14            However, I repeat that bearing in mind Mr. McCloskey's concession,

15    I'm not going to develop that further, save to say that in the light of

16    that concession, we suggest that the Chamber does need to look at all the

17    alleged murders described in paragraph 31, the opportunistic killings, and

18    satisfy itself, as has been suggested in another context by many of my

19    learned friends who have gone before me, satisfy itself that there is, in

20    fact, a case for each given accused to meet so far as those particular

21    murders are concerned.  They're specific crimes, they're different crimes,

22    we suggest, and they shouldn't be lumped together.

23            I've managed it in 75 minutes, Your Honour.  You were right, as

24    always.

25            JUDGE AGIUS:  Don't expect any rewards from us, Mr. Josse, but we

Page 21372

 1    do appreciate your efforts.

 2            MR. JOSSE:  That's all I needed to hear.

 3            JUDGE AGIUS:  Thank you.

 4            I told Mr. Haynes before we started that I don't know of any

 5    British lawyer who requires more than an hour and a half to deal with a

 6    Rule 98 bis submission.

 7            So, Mr. Haynes, do you prefer to have the break now?

 8            MR. HAYNES:  I would, actually, because I've informed Mr. Josse

 9    that I'd like to see Judge Kwon for once in this case, so I'm going to

10    move to address over there.

11            JUDGE AGIUS:  So we'll have a 25-minute break.  The time now

12    according to this is 12.16.

13            Thank you.

14                          --- Recess taken at 12.16 p.m.

15                          --- On resuming at 12.46 p.m.

16            JUDGE AGIUS:  Yes, Mr. Haynes.

17            MR. HAYNES:  Mr. President, Your Honours --

18            JUDGE AGIUS:  You're starting at 12.46.

19            MR. HAYNES:  -- learned colleagues, I don't seem to be able to

20    find a happy medium in this case.  Either I'm leading from the front with

21    excruciatingly long cross-examinations or I am, as on this occasion,

22    bringing up the rear.

23            I will make submissions on counts 2, 7 and 8, and in bringing up

24    the rear on this occasion, having heard the excellent and well-researched

25    submissions of all of those who have gone ahead of me, I'm bound to say I

Page 21373

 1    feel rather like a lonely subleton sitting on a bicycle, about to cycle

 2    across the battlefield where the tanks have already passed.

 3            I trust you know by now that I am not repetitious by nature, and I

 4    will, throughout most of these submissions, simply adopt what has been

 5    said ahead of me.

 6            I trust you will indulge me to this extent, that if I feel

 7    submissions can be improved upon, I will do so, and if I feel multiple

 8    submissions can be drawn together, I will do so.  I also have a particular

 9    duty to my client, and there are specific matters I must address on his

10    behalf.

11            In dealing with counts 7 and 8, as it were, generically, can I

12    make this one general observation at the outset.  In my submission, the

13    approach of the Prosecution to this indictment is inconsistent with its

14    historical approach to those said to have been responsible for these

15    crimes in July of 1995.  To borrow a point mentioned by Mr. Bourgon, but

16    to expand it, history relates that General Krstic faced no indictment

17    alleging any offence at Zepa, General Zivanovic, despite the fact that he

18    was commander of the Drina Corps until the population were evacuated from

19    Potocari, faced no indictment at all, notwithstanding his regular lunch

20    engagements in Eileen Gilleece and Colonel's Trivic and Andric, who were

21    like my client, commanders in Tactical Group 1, faced no indictment at

22    all.  This, of course, is not determinative of any decision you have to

23    make at this stage in this case, but I do submit it is an indication that

24    the Prosecution's approach historically to the Srebrenica and Zepa

25    offences has been zonal, consistent with the advice or the assistance they

Page 21374

 1    were being given by their military analyst.

 2            On this indictment, absolutely every accused has been charged with

 3    counts 7 and 8, irrespective of what position they hold in any chain of

 4    command and irrespective of their physical whereabouts at the time those

 5    offences were said to have been committed.  And I submit that is

 6    ill-thought, it's illogical, it's inconsistent with the Prosecution's

 7    prior approach, and in relation to my client at this stage, it is

 8    unsupportable on the evidence.

 9            Forgive me if I deal with things in reverse, but it just seemed

10    simpler to do so, given the way in which things have unfolded.

11            In relation to count 8, I wholly support and identify with the

12    submissions developed by Madame Fauveau and Mr. Josse.  In our submission,

13    on the evidence before this Court at this stage, the allegation made in

14    count 8 is incapable of amounting to a crime against humanity.  And

15    perhaps I will say no more than that, save this:  In our submission, an

16    army has three choices.  It can fight to the death, it can lay down its

17    arms and surrender, or it can seek to withdraw, perhaps to another

18    country.

19            I was very much put in mind, when we heard the evidence, such as

20    it was, about the flight of the Muslim forces across the River Drina, to a

21    rather more glorious example of the same thing, which was on the Dunkirk

22    beaches in 1940, when it is often forgotten that amongst the British

23    forces were also General de Gaulle and the French troops who evacuated

24    themselves to Britain.  That wasn't a deportation, that was a defeated

25    army retreating to safety, and that is, I submit, precisely what we have

Page 21375

 1    heard about to in relation to count 8.

 2            Particularly with respect to my client, can I make these few

 3    observations.  The evidence is really almost beyond dispute.  Vinko

 4    Pandurevic removed himself and his forces from a position some distance

 5    from Zepa on the early morning of the 15th of July.  Mr. Bourgon has

 6    illustrated the point, but I will give you some references.  Pages 12596

 7    to 7 and page 12598, the evidence of Miodrag Dragutinovic.  There is no

 8    evidence in this case that that force, prior to its removal, had carried

 9    out any offensive act at all.  It had simply moved itself to a position

10    and was to move further forward on the 15th at the time it was with

11    withdrawn.

12            The other evidence in the case I suggest amounts to this:  An

13    assault began on the surrounding villages to Zepa, which was ceased on the

14    19th of July.  There were a succession of meetings on the 19th and 20th of

15    July, further fighting on the 22nd of July, and a total withdrawal to the

16    hills by the Muslim forces on the 26th of July.  The evacuation of the

17    civilian population was completed by the 26th or the 27th of July.  I say,

18    for the avoidance of doubt, we have heard not a word of evidence that

19    would support paragraph 67 of the indictment, and therefore there was no

20    provable act against Vinko Pandurevic, that he did anything other than

21    move forces into place prior to an anticipated assault on Zepa.

22            The Prosecution had it within their gift to ask Miodrag

23    Dragutinovic whether that had happened or to ask Colonel Trivic whether

24    that had happened.  They chose not to, for their own reasons.

25            Furthermore, the evidence of Colonel Trivic, transcript pages

Page 21376

 1    11968 and 11969, on the 23rd of May, is that he was wounded on the 29th of

 2    July and that no unit of the Zvornik Brigade had returned to Zepa by then.

 3            The evidence of Dragutinovic, transcript reference is 12705 on the

 4    15th of July -- sorry, the 15th of June, is that no unit or personnel of

 5    the Zvornik Brigade returned to the Zepa operation before the 31st of

 6    July, after they had left the area on the 15th, and even if they had, so

 7    what?  Certainly Vinko Pandurevic did not return with them, and those

 8    units were not subject to his command whilst he was in Zvornik and they

 9    were under the command of General Krstic at Zepa.

10            Accordingly, I submit that in relation to count 8, whatever your

11    findings as to the merits of the count as a matter of principle, there is

12    no evidence of any act by Vinko Pandurevic which might have given any

13    effect to a joint criminal enterprise.

14            Can I turn now to count 7.

15            I fully endorse and align myself with Mr. Bourgon's impeccable

16    analysis of the interaction of the two concurrent joint criminal

17    enterprises alleged in this indictment.  But with respect to Mr. Bourgon,

18    I submit that there is probably no real argument on that point, because I

19    submit that if you read count 7 of the indictment carefully, you will

20    discover that, in truth, it does not aver that the march of the column was

21    a forcible transfer.  True, it does mention the movement of the column as

22    background fact, but where the forcible transfer is particularised, and I

23    invite you to look carefully at paragraphs 61 to 64, mention of the column

24    is conspicuous by its absence.

25            It is my submission that this indictment invites no such finding,

Page 21377

 1    that the column was forcibly transferred.  It is moreover interesting to

 2    note that no such finding was made about the column in the Trial Chamber's

 3    decision in Blagojevic.  Only the women and children bussed through

 4    Potocari were said to have been forcibly transferred, and you might want

 5    to glance at paragraph 616 to 618 of the Blagojevic judgement.

 6            An ancillary point, and I am conscious that I'm just adding

 7    seasoning to the mixture here - I take it you have digested the

 8    submissions made by Mr. Bourgon on this point, I'm simply adding a few

 9    little extras - of course as of the 12th of July, which is the paragraph

10    avered in paragraph 61 of the indictment, none of the population had in

11    fact left the enclave.  Whether they were at Potocari, Jaglici, or

12    Susnjari, they were firmly still within the enclave, and you might want to

13    remind yourself of the geography by glancing at Mr. Ruez's map of the OPs

14    to help you establish that fact.  It's map 6 in your hard-copy binder.  I

15    shan't bother calling it into e-court.

16            It makes an interesting comparison, the way in which the

17    particulars of the indictment are drawn in relation to Srebrenica, with

18    the way in which the indictment is drawn in relation to Zepa, where I

19    submit the military men who swam the Drina are said to have been deported,

20    how so where in count 7 the march of the 28th Division is not avered as a

21    particular of the forcible transfer.

22            About the bussing of the population, because I submit that that is

23    what count 7 is about, again I adopt the submissions of Mr. Bourgon on

24    that topic.  The units present at Potocari were under the command of the

25    Drina Corps commander, who at that time was General Zivanovic.

Page 21378

 1            Mr. Bourgon has dealt with control of the population leaving

 2    Potocari.  I have to deal specifically with paragraph 77(a), insofar as it

 3    relates to my client.

 4            It is alleged in paragraph 77(a) that Vinko Pandurevic supported

 5    the joint criminal enterprise to forcibly transfer the population of

 6    Srebrenica and Zepa, in that he commanded and ordered forces involved in

 7    the attack on Srebrenica and Zepa enclaves from the 6th of July through

 8    the 14th of July, 1995, knowing one of the main objectives of the attack

 9    was to force the Muslim population to leave Srebrenica and Zepa enclaves.

10    I submit that that sentence is indivisible.  You must find both of the

11    averments in that particular paragraph to be proved for that to amount to

12    an act capable of being supportive of a joint criminal enterprise.

13            There is not one word of evidence in this case which would support

14    a finding that Vinko Pandurevic knew one of the main objectives of the

15    attack was to force the Muslim population to leave the Srebrenica and Zepa

16    enclaves.  There is not one word of evidence in this case that he had ever

17    seen directive 7 or any document written in similar terms.  Again, this

18    was within the gift of the Prosecution.  They had PW-168 here, they had

19    Miodrag Dragutinovic here, they had Mirko Trivic here, and neither of

20    those men, those latter men, active in Tactical Group 1, gave any evidence

21    of their understanding of the purpose of the objective of Krivaja or

22    Stucenica-95 [phoen] were.

23            As to Krivaja-95, I submit that the evidence of Richard Butler can

24    leave you in no doubt that its aims were lawful and militarily

25    justifiable.  In support of his evidence about that topic, you will recall

Page 21379

 1    he produced for you target maps with keys and references, and I do invite

 2    you to consider those.  He also gave a very useful analogy at page 20356,

 3    lines 9 to 23, on Tuesday, the 24th of January, about the applicability of

 4    Article 239 of the Criminal Code.  There is no evidence, indeed there is

 5    evidence to the contrary, that any forces commanded by Vinko Pandurevic

 6    ever fired a shell at the town.

 7            The Operation Krivaja-95 was concluded by the 9th of July of 1995,

 8    and the evidence, I submit, supports the contention that the population,

 9    during a period of inactivity, removed itself from the town, but not from

10    the enclave, the following day.

11            There is no evidence, I submit, that Vinko Pandurevic was aware of

12    any wider purpose to the military operation which he conducted and

13    prosecuted by fighting a line towards Zeleni Jadar, according to the

14    evidence of those who fought alongside him.

15            Accordingly, I submit that there is an insufficiency of evidence

16    for you to conclude that he was a party to any joint criminal enterprise

17    to forcibly transfer the population from Potocari out of the enclave.

18            Lastly, can I turn to count 2.

19            I say, by way of commentary, that as a British lawyer, the concept

20    of joint charges of conspiracy and a substantive count together is an

21    anathema.  Under British law, it is simply impossible to allege murder and

22    conspiracy to murder.  The Prosecution has to elect which one it goes

23    with.

24            I ask this practical, rhetorical question:  What does the

25    conspiracy count add to this indictment?  How does it help you?  If you

Page 21380

 1    cannot find, through the multiplicity of variants of culpability offered

 2    to you by Article 7(1), three variants of a joint criminal enterprise, and

 3    Article 7(3), how on earth are you going to come to the conclusion that my

 4    client entered into an agreement which, as has been eloquently laid before

 5    you, is the essence of the conspiracy, count two?

 6            In fact, and I believe this is a point that Mr. Lazarevic touched

 7    upon, and I hope I'm not being repetitive, but I'll take you to it, if I

 8    may, it's rather more than a simple conspiracy.  The conspiracy is

 9    particularised in particular 36 of the indictment.  Mr. Lazarevic read it

10    out to you yesterday.  I'm not going to do the same today.  But in our

11    submission, it really amounts to two separate conspiracies.  First, it is

12    said there was an agreement to execute the men of military age found to be

13    at Potocari, and I submit, maybe boldly, that that is not a conspiracy to

14    commit genocide.  You simply could not find that a decision to kill the

15    men at Potocari was an agreement to commit genocide.  But, it is said, the

16    initial plan was amended.  Let me just check the words.  Yes.  This plan

17    also encompassed the summary execution of over 6.000 other men, and this,

18    it seems to me, is a very significant amendment to the agreement.

19            I make this simple point:  Even if you could conclude that an

20    accused was a party to the initial agreement, you couldn't thereby land

21    him with responsibility for an agreement subsequently amended without

22    specific proof that he joined the amended agreement too.  It's a bit like

23    a group of people agreeing that they will go to a shop and steal.  They

24    might all agree to that, but if then a group of them go off and decide to

25    steal from every shop in the street, without a participant being party to

Page 21381

 1    the further agreement, then he could not possibly be convicted of the

 2    conspiracy alleged, the wider conspiracy alleged, and that, it seems to me

 3    on the wording of count 2, is what the Prosecution seek to do here.

 4            In any event, what opportunity did Vinko Pandurevic have to be

 5    party to the wider amended agreement, said to have been amended and

 6    changed on the 12th or 13th of July?  According to Miodrag Dragutinovic,

 7    on pages 12690 and 91, Vinko Pandurevic on those days was marching through

 8    the night from Viagor [phoen] towards the position to which he ultimately

 9    returned.  There's not a scintilla of evidence to show that Vinko

10    Pandurevic entered either of those agreements, less still both.  In fact,

11    if you wanted some indication of the lack of strength in that assertion by

12    the Prosecution, I invite you to look again at the combat reports of the

13    15th to the 18th of July authored by him and which are Prosecution Exhibit

14    numbers P329 to P334.  Those, I submit, are the clearest evidence of a man

15    horrified to find that prisoners had been placed in schools in the

16    municipality of Zvornik, and not evidence of a man who had entered into an

17    agreement to kill thousands of people.

18            I should say formally, if I haven't, that I adopt and endorse all

19    the submissions that have been made by Mr. Ostojic, Mr. Bourgon,

20    Mr. Lazarevic, Ms. Fauveau and Mr. Josse, but in a little over 20 minutes

21    those are my submissions.

22            JUDGE AGIUS:  Thank you, Mr. Haynes, which leaves us with this:

23    Do you want to start today or do you wish to start on Monday?

24            MR. McCLOSKEY:  I think I can say some --

25            JUDGE AGIUS:  One moment.  I think we can hear what you have to

Page 21382

 1    say, and then I'll come to you, Madame Fauveau.  Madame Fauveau needs to

 2    make some corrections to the transcript.

 3            So you can go ahead, Mr. McCloskey.

 4            MR. McCLOSKEY:  I think I can say some things today.  Might as

 5    well.  Maybe we'll finish in one day next week.

 6            JUDGE AGIUS:  Yes, I think we will go for that.

 7            Madame Fauveau.

 8            MS. FAUVEAU: [Interpretation] Mr. President, with your permission,

 9    I have a few corrections, generally from names in the transcript.

10            [In English]  Page 8, line 16, the name "Milanovic" should be read

11    as "Milovanovic."

12            JUDGE AGIUS:  Can you repeat the reference, please?  Page 16?

13            MS. FAUVEAU:  Page 8, line 16.

14            JUDGE AGIUS:  Page 8, line 16.  Yes.

15            MS. FAUVEAU:  Then page 15, line 17, "the orders of General

16    Milovanovic" shall be read as "the orders of General Zivanovic."

17            JUDGE AGIUS:  Anything else?

18            MS. FAUVEAU:  Page 18, line 9, the name "Colonel Djukic" shall be

19    read as "Colonel Djordjic."  And then page 27, line 11, the Exhibit P89

20    shall be "P849".  Then page 29, line 7, the exhibits P2750 shall be --

21    P2790 shall be P2750, and P976 shall be P2976.  On page 30, lines 5 and 6,

22    the sentence:   "General Miletic was there neither on the 11th and the

23    13th," shall be read as:   "General Miletic was not with General Mladic

24    neither on the 11th and 13th."  Page 34, lines 7 -- 6 and 7:   "General

25    Mladic had to go on the ground to check what was happening," shall be

Page 21383

 1    read:   "General Mladic sent officers from Main Staff to check what was

 2    happening."  And, finally, page 35, line 25:   "General Miletic knew

 3    before the Army of Republika Srpska --" no, I will start again:   "The

 4    Prosecutor showed no evidence of the fact that General Miletic knew,

 5    before the Army of the Republika Srpska entered Srebrenica, that the

 6    enclave had been taken," shall be read:  "The Prosecutor showed no

 7    evidence of the fact that General Miletic knew, before the Army of the

 8    Republika Srpska entered Srebrenica, that the enclave was to be taken."

 9            JUDGE AGIUS:  Thank you, Madame Fauveau.

10            MS. FAUVEAU: [Interpretation] Thank you very much, Mr. President.

11            JUDGE AGIUS:  Mr. McCloskey, you have the floor.  And if you could

12    stop at 20 minutes to 2.00 instead of quarter to 2:00, please.

13            MR. McCLOSKEY:  Yes, Mr. President.  I may -- I may stop before

14    that.  I just want to clear up a few things.

15            First of all, I want to just explain to you my intention over the

16    next court days, and that would be I will speak briefly of the forcible

17    transfer and deportation count, and then I will speak about the accused

18    Pandurevic and Borovcanin, and my colleagues Mr. Thayer and Mr. Nicholls

19    will speak about the other accused.  Mr. Vanderpuye was going to speak

20    about Popovic.  However, any discussions with Popovic will now be given to

21    Mr. Nicholls.

22            And some of what I've heard, we will respond to.  Much of what I

23    heard were closing arguments.  I think General Miletic's counsel was very

24    detailed, as she is, and much of that, in my view, was a closing argument,

25    and I don't think you want me to go through the kind of detail that she

Page 21384

 1    went through, though Mr. Thayer will be dealing with that and will provide

 2    you some detail, but we'll stay well within the time frame, and I hope

 3    that we can finish on Monday.

 4            So I will start by talking briefly about the forcible transfer and

 5    deportation charges, and the first thing I want to remind you, and I

 6    probably may not need to, but as you've heard repeatedly from the accused,

 7    they view the forcible transfer of the Srebrenica population as somehow

 8    from on the 12th and 13th mainly, that this is the crime, and that of

 9    course is -- can't be -- that's the final leg of this crime, and it's

10    important to know that this crime is first hatched back in the spring of

11    1992, and we see that in the strategic objectives.  And then more so in a

12    piece of evidence that I don't know if any tribunal will see anything as

13    clear as directive 4 in history, in that they just spell out, "We will

14    push out the armed forces and along with the Muslim population."  November

15    1992.  The Drina Corps order that said exactly the same thing, that came

16    out a few days later, near the end of November, was sent to all the

17    brigades, including the Zvornik Brigade.

18            At the time, Vinko Pandurevic was wounded in Visegrad.  We won't

19    go into Visegrad at this stage, though we may see it in cross-examination.

20      But he comes on the middle of December.  Clearly, that order stood to

21    move out the population.  And as you heard, he led -- and his forces,

22    which were one of the best assault forces in the Drina Corps, he led the

23    movement of the military attack and the subsequent movement of the

24    population all the way through 1993 that led to the humanitarian disaster

25    that brought us the Srebrenica enclave in the first place.  Vinko

Page 21385

 1    Pandurevic is well aware of this plan, of this enterprise, and this is

 2    Eastern Bosnia.  I won't go into the rest of Bosnia for you. That -- this

 3    was just Eastern Bosnia that we're talking about, but it certainly wasn't

 4    by itself.

 5            Now, for convenience and for simplicity, we've started this

 6    indictment with directive 7, March 1995, where again President Karadzic

 7    lays out:  Make life impossible, make survival impossible for the

 8    residents of Srebrenica and Zepa.  Here is the joint criminal operation to

 9    move those people out of Srebrenica and Zepa.  If you're involved in

10    Srebrenica or Zepa, you're part of that joint criminal enterprise to move

11    those people out.

12            And, of course, then the statement a little bit farther down in

13    directive 7, another amazing statement:   "Make, by restrictive permits,

14    make the populations dependent on our goodwill, but at the same time not

15    allow us to be condemned by the International Community."

16            And then we see the Dutch and the Muslims' testimony about what

17    that entailed, and I'm not going to go through that, but it was clearly a

18    horror.  It was called "convoy terror," starvation, misery.  Just what was

19    created there, I've heard that over and over again.  I'm not going to --

20    and so have you.

21            And then we get to Krivaja-95, which specifically, as you'll

22    recall, cites directive 7 and says, as Mr. Butler said it did:   "Reduce

23    the enclave to its urban area," as well as divide the two enclaves.  And

24    as we have always argued, as Mr. Butler has always interpreted, reducing

25    the enclave to its urban area draws to some 30.000 people from the outside

Page 21386

 1    of the enclave into a one-by-two-kilometre area and creates the

 2    nightmarish situation that we had in 1993.  Now, that doesn't say attack

 3    the enclave and take it over, but it's clearly an attack on the enclave to

 4    reduce the urban area, reduce the population inside that urban area.  And

 5    then it goes on to say "and create the situation for the elimination of

 6    the enclaves."

 7            Now, direct for that Krivaja-95 goes to the Zvornik Brigade.  You

 8    have a copy that went to the Zvornik Brigade while Commander Pandurevic

 9    was there.  Remember what 168 said, that Pandurevic didn't think the UN

10    would let them get at -- you know, get at the enclaves.  Well, he was

11    wrong, but he certainly knew about Krivaja-95, the wording of Krivaja-95,

12    and, from his place in history, knew precisely what the overall objective

13    of that was.

14            We saw this carried out.  I'm not going to go over the details of

15    that with you.  I think others may, because Mr. Nicholls may talk about

16    the attack on the civilian population, which, as in the cases before, is

17    concentrated mostly, in our view, on the 10th and the 11th and then this

18    pushing of the population up to Potocari and the continuing attacks and

19    the surrounding the population, basically taking them prisoner, disarming

20    the Dutch.  This is the principal attack on the civilian population,

21    though as you can see from reviewing Kingori's testimony, there was

22    indiscriminate shelling of the downtown area all throughout the attack,

23    and the one that always sticks out in my mind is when the, probably a

24    mortar, dropped right in the middle of the crowd at the entry to the base

25    in Srebrenica.

Page 21387

 1            And Vinko Pandurevic and the Drina Wolves principally led that

 2    attack, was the best force involved in that attack, along with Trivic.  We

 3    had Blagojevic, Trivic, a bit of the 10th Sabotage, but the best guys in

 4    that attack were Legenda and Vinko Pandurevic, and that was attack that

 5    started pushing the population out of the rural area and into the urban

 6    area, and Vinko Pandurevic and his units were in that area on the 12th and

 7    didn't leave until the 13th of July, and so were there that entire time.

 8            And then Vinko Pandurevic, pursuant to the orders of his

 9    commanders, goes to Zepa.  You'll see the attack plan.  Krstic, still as

10    chief of staff, signs in on the afternoon of the 13th, and there's a role

11    for the Zvornik Brigade and it's laid out, and it's the attack is to start

12    on the 14th, and the attack did start on the 14th.  Now, we'll look in the

13    record.  Mr. Haynes may be correct about the evidence about what exactly

14    we've provided the -- or proved that the Zvornik Brigade actually did.

15    Did they move forward or not?  But an attack -- you can bet that the

16    members of the Zvornik Brigade, and you can absolutely infer, they weren't

17    hanging around Vlasenica bars or Han Pijesak, they were at the positions

18    they were assigned to be on the night of the 13th, they were ready to go,

19    like a chessboard.  Clearly, the chessboard started on the morning of the

20    14th, whether Vinko Pandurevic's units moved or whether they stayed

21    stationary, they provided a key part of that operation, so you have

22    absolutely a clear, strong inference at this stage that Vinko Pandurevic

23    played -- and his unit played a significant and substantial role in the

24    initial assault on Zepa the first day.  They are there, ready to go.  It's

25    not until the next day, in the morning, that they go out to Zvornik.

Page 21388

 1            So I would disagree with my colleague on the points he made there.

 2            And let me just end by briefly describing to you our view of Zepa

 3    and the deportation.  We believe that there's a very strong inference that

 4    with some 1.000 to 2.000 military-aged men that flee to Serbia, that there

 5    are one or more civilians in that group.  At this stage, this is an

 6    inference that is absolutely appropriate for you to make.  It's also

 7    appropriate for you to make it because one of those people said he was a

 8    civilian and did it.  And the -- I like the name of the -- I think it was

 9    Mr. Josse who called it the "begs belief" theory, or legal theory, which

10    is part of the law that you look at, and you now will look at testimony

11    and determine whether or not it's so outrageous that it begs belief.

12    Well, this guy was a victim, a man and he came in here and did his best to

13    testify, and he told you he was not a combatant when he left and swam that

14    river.  That is enough at this stage.

15            In addition, we believe that an army, that soldiers can be

16    deported.  I agree that prisoners of war cannot be deported -- can be

17    deported, excuse me.  You can take prisoners of war and you can ship

18    them -- they could have shipped them to Serbia and kept them in camps. But

19    the key element to deportation is the unlawful displacement of the group,

20    and so you've got to see whether or not, when these people drop their

21    weapons and jumped into the river, risking their lives, was that unlawful

22    or not.  If it is a retreat of an army, it could be lawful.  But don't

23    forget, the overall purpose of the attack -- of directive 7 was to get rid

24    of the people, the Muslim people.  That includes everybody, army, women,

25    children, everybody.  And that is still in play on August 30th or August

Page 21389

 1    1st and the end of July, when this happens.  And so the intention of the

 2    VRS was to get everybody out of there, army, civilians, no question about

 3    it.

 4            And then the key point to whether it's unlawful or not is whether

 5    or not the person involved has a choice.  It all comes down to choice.  It

 6    was one of the three choices that Mr. Haynes gave us.  Do you have -- one

 7    of your choices is to surrender.  Did the combat arms of the Zepa Brigade

 8    have a choice, at the end of July, to surrender?  They absolutely,

 9    unequivocally did not.  They knew, from the Kravica warehouse survivor who

10    told the commander, through the word that had hit the press, through the

11    word that, you know, these enclaves were together, what was going on in

12    Srebrenica.  They knew, reasonably so, that if they surrendered, they

13    would die.

14            On August 1st, there's over 7.000 Muslim men dead not far from

15    them, murdered.  They knew it. They could not -- no one in their right

16    mind would have surrendered at that point, and you can see that from the

17    evidence.  They just refused. They chose instead to risk their lives.

18    You've seen the Drina.  It is a tough, cold, hard river.  They jumped into

19    that river.  Look at the intercepts.  They were putting wheelbarrows on

20    rafts and making makeshift rafts, and they had no choice at all when they

21    went, and that, in my view, in our view, can be deportation.  Once you

22    have the attack on the civilian population, the jurisdictional attack that

23    we had that began when shelling started indiscriminately falling on

24    Srebrenica town and then started dropping deliberately in the crowds, and

25    then the people get pushed to Potocari, and then get arrested, basically,

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 1    when that happens, that's the attack.

 2            Same thing with Zepa.  When those people get surrounded and taken

 3    care of and basically forced on buses, that is the attack on the civilian

 4    population.  And it's the resulting people have always in this institution

 5    could be -- they could be combatants or civilians.  It never mattered

 6    before this recent case that came out, and perhaps the simplest way to

 7    deal with that is to offer an amendment in the alternative as a war crime.

 8    But that is an issue that will be on appeal for a long time.  It's not

 9    something that I know this Trial Chamber will use in 98 bis as a sword.

10    If that was the case, all the -- all the combatant victims at Srebrenica

11    would have not been part of these crimes against humanity that form the

12    foundation of this institution, and I don't think you're going to allow

13    that to happen.

14            In any event, I think I'm probably -- I should stop now and make

15    way for my colleagues so that you're not keeping listening to me probably

16    far too much, and I thank you, and we'll be back on Monday morning.

17            JUDGE AGIUS:  Thank you, Mr. McCloskey.

18            So we rise now and adjourn until Monday morning at 9.00.  Thank

19    you.

20                          --- Whereupon the hearing adjourned at 1.32 p.m.,

21                         to be reconvened on Monday, the 18th day of February,

22                          2008, at 9.00 a.m.