Tribunal Criminal Tribunal for the Former Yugoslavia

Page 34213

 1                           Friday, 4 September 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.03 a.m.

 5             JUDGE AGIUS:  So good morning.

 6             Mr. Registrar, could you call the case, please.

 7             THE REGISTRAR:  Thank you, Your Honour.

 8             Good morning, Your Honours.  Good morning to everyone in and

 9     around the courtroom.

10             This is case number IT-05-88-T, the Prosecutor versus Popovic

11     et al.  Thank you.

12             JUDGE AGIUS:  Thank you.

13             All the accused are here.  The Prosecution, I only notice the

14     presence of Mr. McCloskey for the time being.  And Defence teams, I think

15     the situation unchanged, everyone is here, like yesterday.

16             You, the Prosecution, has already taken six hours and fifty

17     minutes, just for your information.  I'm sure you know that.

18             So let's start, unless you have any preliminaries, but I don't

19     think so.

20             MR. McCLOSKEY:  Good morning, Mr. President.  Good morning, Your

21     Honours, and everyone.

22             I want to begin in what will be a relatively brief presentation

23     this morning, but I want to begin with some comments about the Borovcanin

24     case, as per the directions of the Court.

25             First, on their brief, I read it and found it to be detailed and

Page 34214

 1     thorough, for the most part articulately written, but fundamentally

 2     flawed.  It was full of unreasonable conclusions, misstatements, and

 3     mis-analyses of the Prosecution's case.  We absolutely stand by, as we

 4     always have, the legal proposition, if there are two reasonable

 5     interpretations of circumstantial evidence, one in favour of the Defence

 6     and one in favour of the Prosecution, the Court must go with the version

 7     in favour of the Defence, but when you look at this brief, you really

 8     need to examine carefully their analysis and look at their sources

 9     because they're not reasonable.  They're articulate, they're intelligent,

10     but they're not reasonable.  I can't go through all of them.  I'll go

11     through a few.  And there are some fundamental flaws in the way they're

12     coming at this.

13             One example.  They criticise the Prosecution for concluding, in

14     the opening statement, that -- or, excuse me, in the trial brief, that

15     Borovcanin was in Potocari on the early afternoon of the 13th, and

16     whether 3.00 p.m., 3.30 p.m., is early afternoon or mid-afternoon, and

17     this is what they say on that point:  On page 60, paragraph 90.  Now, I

18     got a corrigendum apparently last night at 10.30 that Ms. Stewart just

19     put in front of me, so I'm hoping this isn't in their brief anymore, but

20     this is what they said:

21             "The Prosecution erroneously alleges in its pre-trial brief that

22     this visit, the visit to Potocari, was in the early afternoon of 13 July,

23     citing the Petrovic video images as its source.  This may seem like a

24     minor factual error, but it would be naive not to view this as part of a

25     pattern of minor misstatements designed cumulatively to create an

Page 34215

 1     entirely false impression."

 2             The Prosecution is deliberately twisting facts to the Trial

 3     Chamber to create a false impression for you.

 4             Now, this kind of thing gets said.  I usually call it false

 5     exuberance or over-exuberance, excuse me, but it's a theme throughout.

 6     They give an example in my opening statement; twist things, say something

 7     I never meant to say, and tell you it's part of this pattern.

 8             Another example of this I need to respond to is that in

 9     paragraph 163, they tell you that we withdrew two Sekovici witnesses, and

10     they call into question our motives for this and suggest that our claims

11     regarding why we did this are specious.  And they go on to say this:

12             "The Prosecution's deliberate strategy of not calling direct

13     eye-witnesses should not be lightly excused.  The question is:  Why would

14     the Prosecution do this?  What tactical advantage do they hope to gain?

15     What aspect of their testimony might prove inconvenient or exculpatory so

16     as not to out-weigh the potential incriminatory value of the testimony?

17     Is it safe to draw inferences based on the circumstantial evidence

18     knowing the Prosecution deliberately chose not to present eye-witness

19     evidence?"

20             Paragraph 164:

21             "Please see our filings on this matter filed 23 January 2009 and

22     16 February 2009."

23             These witnesses had become under the authority of the Court, the

24     state court.  They had stood on their right to remain silent.  First they

25     were indicted, then they were acquitted.  Mr. Thayer, myself,

Page 34216

 1     Mr. Vanderpuye, are licensed to practice law in the United States under

 2     the rules of our states in the District of Columbia.  We are not, under

 3     those rules, allowed to use the force of process to call someone like

 4     this that is facing potential loss of their freedoms, and we stated as

 5     much; yet we're having this thrown back in your face and they want you to

 6     imply that it's part of this continuing theme of theirs.  I hope we don't

 7     see it in the closing argument.  It's unreasonable.  We can handle it,

 8     but it shows their reasoning isn't -- is over the top, and we see that.

 9     Look at the way they've analysed the two Kravica warehouse witnesses.

10     Completely off the mark, completely unfairly.

11             And it's not just the Prosecution, as I said.  They state three

12     times in their brief at paragraph 89, 101 and 186, something along the

13     lines that when Borovcanin is in Potocari after 3.30 p.m., the evacuation

14     was essentially or effectively over.  They say that three times in those

15     three different paragraphs.  And if we look at P02986, it may come up on

16     the screen, I'll take you back to part of that video that was shot by

17     Petrovic, which as we know, Borovcanin was right there.  There's a huge

18     line of separated men next to a huge line of buses.  This -- he wasn't

19     there for that long, under his own words, a half an hour, 30 minutes, and

20     the time span seems to reflect that.  So he's there during a crucial,

21     crucial time-period, not when it's essentially over.  They base that on

22     the statement of van Duijn, who said something about the large group of

23     people is no longer there.  Well, remember the large groups, some 20.000,

24     30.000 people in a couple of photos.  Well, that's true, but there's

25     still a lot of work to be done.  And that statement is just not

Page 34217

 1     reasonable, that it's essentially or effectively over.  He's there during

 2     a critical period, separations, of the horror of what's going on, and

 3     he's got his cameraman with him who's editing out the various bits of

 4     horror that we know.

 5             In addition, I've got to go briefly into private session.

 6             JUDGE AGIUS:  Let's go into private session, please.

 7             MR. McCLOSKEY:  As I want to just take you to one UNHCR document

 8     on this point.  It's 5D01446 from a person that's reporting on Potocari.

 9     It gives us a very good indication of how late this evacuation is going.

10                           [Private session]

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23                           [Open session]

24             MR. McCLOSKEY:  Now, interestingly, there's some very significant

25     changes from the statement of Mr. Borovcanin, which I'm sure you've

Page 34218

 1     carefully gone over, the statements that he gave to me over -- two

 2     different statements with several days in between.  He's a very bright,

 3     very capable police officer, commander, that came into this well

 4     prepared.  This was not where he got picked up and suddenly talked to in

 5     an interrogation room.  And as we've stated in the brief, he had a very

 6     well thought-out but flawed defence, that under his version, basically,

 7     freed him of military responsibility, and it went like this:  That he

 8     learned -- he was ordered by General Mladic, in the early afternoon of 13

 9     July -- excuse me, 12 July, right before anything is really happening, I

10     believe, in terms of the bussing, to take his units to Zvornik; not

11     towards Zvornik, to Zvornik.

12             When he told me that in the interview, "to Zvornik," I asked him,

13     Well, where in Zvornik?  And he said, The Zvornik Brigade headquarters.

14     You can see, as we cite in the brief, I was astounded by that because I

15     knew that his units were stationed along the road.  We'd had the first

16     public version of the Petrovic video for a long time at that point, and I

17     knew that the critical point that was needed at 12 July was that road,

18     not Zvornik.  But he continued to push that theme, and of course he

19     acknowledged that he was along the road on the 13th and came up with the

20     story that as he set off, it became dark, even though he said he set off

21     at 4.00 p.m., and it was too dangerous for his troops, his Pragas, his

22     tanks, to go up to Zvornik.  They've been sending women and children

23     along that route the entire day.  The only dangerous -- really dangerous

24     part of that route at that point was between Konjevic Polje and the

25     Drinjaca River, a few kilometres that Borovcanin's army couldn't manage.

Page 34219

 1     Well, it was an absurd comment.

 2             And then he tried to explain that he -- so he got stuck and had

 3     to stay on the road.  And then he said he got orders from the MUP, so now

 4     he's under the command of the MUP.  And I said, Well, are you under the

 5     command of the army?  And he goes, No.  So he's not under the command of

 6     the army anymore.  And then he comes, No, I am for combat purposes.  So

 7     he's stuck in this terrible place he's gotten himself in.  It makes no

 8     sense.  However, he has now put himself with orders into Zvornik, saying

 9     that he's now left Dusko Jevic and his other units behind, no longer in

10     command, and he's not working or doing anything with the army, he's stuck

11     in limbo along the road.  This was his defence.  It's laid out perhaps

12     more articulately in our brief.

13             Well, now the brief comes completely off that, as far as I can

14     tell, and is now repeating what we see in his reports on the matter; that

15     he is ordered by Mladic to go to the road, and he takes his troop to the

16     road, which means there's an acknowledgment, even though there's no

17     evidence of it, that all of that material that he told me were lies.

18     Well, they obviously were lies, so now they're agreeing.  Unless they're

19     not, we'll see, maybe the stories of -- of being too dangerous to go to

20     Zvornik and being blocked and all that is still at play, but I don't

21     think so.  So this is a radical change, trying to make the story more

22     reasonable.  And at the same time, the story switches to, yes, he is

23     issuing orders to Dusko Jevic to take part in the evacuation, which if

24     you recall my interview, he doesn't want to have anything to do with

25     Dusko Jevic after he leaves Potocari.  That's Dusko Jevic, he's working

Page 34220

 1     with Momir Nikolic, I have nothing to do with them anymore.  Now that's

 2     changed, after testimony in this case that's uncontroverted, no reason to

 3     lie.  He's now acknowledging he's issuing orders to Dusko Jevic.  There

 4     is no more indicia or indication of command than the issuing of orders.

 5             He stays in the Bratunac area on the 13th, the 14th, as does

 6     Dusko Jevic, both in Potocari, his troops, and along the road.  There is

 7     no question he is in command of Dusko Jevic and his troops and in control

 8     of them.

 9             They make an amazing allegation, which Mr. Borovcanin never made

10     to me.  As a military man, I can't imagine him trying to tell me this,

11     that, oh, yes, he was issuing orders, he was present in the area, but he

12     was not exercising command or control over this unit.  Nonsense.  That

13     would violate the rules, the law, common sense.  It's completely

14     unreasonable.  We see him in Potocari on the 13th, when this awful stuff

15     is happening, and his commanders are on the field, separating people.

16             Also, as in his interview, when we got to the road, we were

17     playing a video and asking him about who these men are, he's telling us,

18     Oh, the people that are capturing the men, those are -- those are

19     Milan Lukic's men, those are army that are taking the men and guarding

20     them.  My guys are on the road.  We're not really involved.  And then he

21     makes this comment:

22             "I cannot exclude the possibility that one or two or more of my

23     men were involved."

24             But he does not want to have anything to do with the capturing

25     and the detaining or the dealing or the coordinating of those men in the

Page 34221

 1     interview.  It's as clear as a bell.  And now, at paragraph 166 of their

 2     brief, they're acknowledging that his men are taking part in the

 3     capturing and the detaining of these men.  They even go on to say that

 4     his commander, Cuturic, who was -- coordinated with Momir Nikolic, who we

 5     know is also going up and down the road at this day, coordinating those

 6     captures and those detentions.  So this is another radical change where

 7     they're looking to the common-sense view of the evidence and

 8     under-cutting significant parts of the statement of their client.  It's

 9     an attempt to make it more reasonable.  But, of course, how does that

10     affect the overall package?  It makes it less credible, the overall

11     package less credible.

12             And as we'll get to a little bit later, from the version that a

13     Muslim soldier took a weapon, shot a Serb MUP person, the Serbs grab the

14     gun away, burned his hands, and then fire back, which we agree

15     happened - you can see that, as we said, in the brief from the health

16     records, that happened - but Mr. Borovcanin's version is:  After that,

17     Milos Stupar reports to him that Milan Lukic's men fired back, committing

18     mass killings.  There's no suggestion of a two-part legitimate escape

19     attempt that they're talking about now in they're brief and then a

20     systematic murder happening later on that night.  It doesn't get into

21     that at all, and I'll tell you, and I'm sure you'll agree with me on

22     that, the one person in this courtroom that knows what happened at the

23     Kravica warehouse that night is Ljubomir Borovcanin, and he had the

24     ability to tell me that -- or tell us that.  He didn't.  Had it been a

25     legitimate escape attempt, he could have very well told me, and he should

Page 34222

 1     have.  But now the story has changed, and I'll get into the support of

 2     that story a bit -- a bit further.

 3             Let me go to a couple of conclusions that the Defence make.

 4             Page 23, paragraph 41, they say:

 5             "Even if Borovcanin somehow surmised improper coercion was

 6     underway" - he's referring to Potocari - "his only viable course of

 7     action by that stage was to alleviate the humanitarian situation."

 8             Well, let me tell you what his viable options were, and this is

 9     important because I'm sure in our lifetime we're going to see

10     international troops in this situation again, refugees coming in.  The

11     Geneva Conventions are clear.  When you know a crime is afoot, and he

12     must have known the intentions to toss those people out, he should not

13     have been involved.  When he heard about the assault to go into the

14     enclave, he should not have been involved at all.  If he'd walked away or

15     refused, he wouldn't be here today.  Now, as we've always said, part of

16     this assault had a legitimate aspect, so let's give him the benefit of

17     the doubt.  Even though he knows what's going to happen when he gets

18     there, that they've focused on this -- on the population and they're

19     going to toss them, he takes part in going through the minefield and he

20     takes control, with the VRS, of Potocari.  That, by itself, still leaves

21     him time to get out.  Does he get out?  No, he doesn't.  He could, he did

22     not.

23             Now, once he found out and was aware that this -- and was ordered

24     to take part in the separations and the forcible transfer of the

25     population, it is not the Prosecution's position that he had to

Page 34223

 1     prevent -- try to prevent that.  He did not have the military capacity to

 2     take on Mladic and Mladic's VRS.  I don't expect that.  I don't think the

 3     Geneva Conventions expect that, but what they do expect and what he knows

 4     by training is that he should not have been involved.  He could have done

 5     what the ICRC did in Zepa and Srebrenica and just refused, just don't

 6     take part.  He could have also done what the Dutch did.  He could have

 7     helped the Dutch.  He could have put a security cordon around to look

 8     after those people, those civilians, and maybe those nine guys wouldn't

 9     be dead and the 10th person that was shot up against the wall and the

10     other horrors that happened wouldn't have occurred if he had helped

11     van Duijn and Rutten and Koster, and made it clear to them, Hey, I don't

12     agree with what's going on, I'll help you.  At the very least, keep his

13     men from separating people.

14             You recall van Duijn.  His men were separating people from the

15     first moment of the -- on the 12th of July, and it went all the way to

16     the 13th.  Mendeljev Djuric was taking part in that.  We've seen him on

17     the video.  The testimony was absolutely clear.  He did not have to do

18     that.  And when he did, he was substantially assisting not only in the

19     forcible transfer, but clearly, under any reasonable evaluation of this,

20     by the end of the 13th of July he must have known that these men were

21     going to be killed.  And so by continuing to command his men in the

22     process of the separation, he is substantially contributing to the murder

23     operation.

24             And follow the men that his men has separated.  They go to

25     Bratunac.  He leaves them in Bratunac.  He doesn't protect them ever,

Page 34224

 1     even though he knows of the murder operation on the 13th and after

 2     Kravica.

 3             Should he have disarmed the soldiers?  Well, we don't have any

 4     beef with the idea of disarming the Dutch soldiers in the armed combat

 5     situation or as they're approaching.  But once they're inside the

 6     confines of the area around Potocari and the Dutch soldiers are trying to

 7     protect these masses, and they're of no threat whatsoever to the Serb

 8     forces, there's only one real reason they're dismantling -- the Serbs are

 9     dismantling the Dutch, is to make their job to do the separation and

10     forcible transfer easier.  That's the problem here, not -- not taking

11     their weapons pursuant to the assault.  I have no major disagreement with

12     that.

13             He could have also gone up his chain, Goran Saric, his command,

14     and said what was going on and reported it.  He could have gone to

15     Tomislav Kovac, the minister -- the assistant minister.

16     Miroslav Deronjic, he could have gone to Deronjic, who had a connect

17     with -- at this time with Karadzic.  Deronjic recognised that there was

18     no screening going on, that this was a wholesale grabbing of both men --

19     old men, boys, and able-bodied men, without any screening to determine

20     whether or not they were war criminals or able-bodied.  Deronjic even

21     recognised that.  Look at his testimony.  He didn't go to any of those

22     people.

23             He should have done those things as a commander.  The Geneva

24     Conventions require them.  They asked the question.  I give you my

25     answer.

Page 34225

 1             They also say:

 2             "The Prosecution has not shown that Borovcanin was animated by

 3     any other intent than to assist in the evacuation."

 4             Now, I won't reiterate all the involvement of this horrible

 5     process that he was involved in and the separations, but I will remind

 6     you, and you want to look at intent, look at his false statements to me,

 7     insisting that Jevtic were taken away from him, insisting that he was

 8     just visiting Potocari to take care of the bus situation on the 13th.

 9     His false statement saying he knows nothing about the separations, he's

10     lying to me about that because he knows that these are all crimes that he

11     is involved in and his men are involved in, and it shows a consciousness

12     of guilt.  That shows his intent.

13             He also acknowledges now that he -- his units were working

14     closely with Momir Nikolic, Radoslav Jankovic.  Of course they are.

15     They're doing the same thing.  And, remember, we have a clear picture now

16     that he's acknowledging he's taking part in the detentions and the

17     capturing of the men in Sandici, because remember what's going on in

18     Sandici; the same thing that's going on in Potocari.  They're asking

19     people to stand up, anybody born after a certain day, and they let those

20     little kids, some of them, off and they allow them to get on the buses.

21     So Borovcanin's unit and his people that he is fully aware of, because

22     he's up and down that road, are separating, in this case, the kids.

23     They're taking IDs.  They're not taking any names.  They're not giving

24     them any food.  They're not giving them any medical.  Horrible things are

25     going on, there are people that we see on stretchers.  Remember the

Page 34226

 1     forensics.  They found stretchers in Glogova.  Do you think the people --

 2     the Muslims who came out on stretchers were carried all the way to the

 3     Kravica warehouse?  No, there's evidence in this case that shootings were

 4     going on and killings were going on in Sandici.  So the same things that

 5     are going on in Potocari are going on in Sandici.  He is under the

 6     command -- he is commanding the bulk of those units along the road.  He's

 7     commanding a significant part of the units in Potocari.  It's the same

 8     thing.

 9             He's trying to rely on this dog that will just not fight, that

10     the security officers are commanding, the security officers are

11     commanders, that Momir Nikolic and Radoslav Jankovic are commanding this

12     thing.  Well, I hope you can put this to rest.  I will stand up for the

13     accused's security officers on this point.  The difference between their

14     criminal responsibility and the responsibility of the commanders is

15     immense.  It's not even close.  Our visceral -- reaction of the men that

16     are organising the killings is visceral.  It's like we hate those local

17     drug dealers that are involved in the killings, but the Harvard grad

18     that's bringing in the cocaine on his Lear jet is harder to get a handle

19     on.  His kids are in law school.  So don't aggravate the case against the

20     security officers.  The real responsible guys for this are the

21     commanders.  Of course, the security officers have responsibility, but

22     there's always going to be people to take the security officer's job.

23     The commanders are the ones that are going to really have the ability to

24     stop this, and don't buy into their argument.

25             Okay.  Now, Kravica, I want you to -- I don't want to play that

Page 34227

 1     body video again, but I do want to give you an exhibit that is a

 2     panoramic compilation so you can get a one-picture view of what

 3     Borovcanin and Petrovic saw as they drove by.  I've given this to

 4     Borovcanin yesterday, and, Ms. Stewart, if you could pass out this to

 5     everyone, I think it's easier.  It doesn't really come out very well

 6     on -- I don't -- well, it may come out on the video, but I would prefer

 7     that everyone just have this.  You may or may not want to refer to it at

 8     various times.

 9             Now, in their brief and in their opening statement, they asked a

10     couple of good questions to the Prosecution, a couple of questions that

11     need to be answered, one of which is:  Why on earth would Borovcanin take

12     Petrovic around with him, filming Potocari, filming the road, and

13     certainly filming Kravica?  Why on earth would he do that, if he was

14     actually part of this?  Well, one of the answers is very simple.  He

15     received, as he told me, a written order --

16             JUDGE AGIUS:  Judge Kwon has raised an important issue.  Have you

17     given a copy to the accused?

18             MR. McCLOSKEY:  I would trust that Defence counsel will have done

19     that, but we have copies for the accused as well.

20             MR. GOSNELL:  He has a copy, Mr. President.

21             MR. McCLOSKEY:  But all the accused should have it, though.

22             JUDGE AGIUS:  Okay, thank you.  And thank you, Judge Kwon.

23             You can proceed.

24             MR. McCLOSKEY:  Thank you.

25             So the question of why, why the journalist?  Well, he told me in

Page 34228

 1     the interview, page 51 to 52, that he received a written order from

 2     Goran Saric to take Petrovic with him.  Well, there's one reason.  He's

 3     following orders.  Also, we know from his stunt on the 12th in front of

 4     the cameras, propaganda was very important for the Serb cause.  They

 5     needed heroes.  They needed to report back that there were men in uniform

 6     doing their job for the cause, and so they needed journalists they could

 7     trust to shoot film they could trust that they could come back and play.

 8     Well, they trusted the wrong journalist, because we see, even before

 9     Petrovic gets involved, Borovcanin is handing out cigarettes to children,

10     but we also see in the back petrified Muslim men, and it's part of an

11     arrogance, a stupidity, as well as the propaganda effort.  People

12     committing crimes make mistakes.  This was a stupid mistake on their

13     part, to be doing this, as he fully understands now.

14             And for why he would have taken him and not done something about

15     it to the actual Kravica killings, well, having your men suddenly shot

16     and killed by a Muslim, when your men are supposed to be doing the

17     executing, that may make you forget immediately what exactly is going on

18     as you rush down there to take care of the problem, and you have your

19     trusted person, who is there, to edit out any issues.  Well, there was a

20     lot of editing going on in that movie.  There are 24 seconds of the

21     filmed shot at the end which should be, if you look at the testimony of

22     Thomas Blaszczyk on this, there's 24 seconds of a black-out and other

23     items played that should be that section right after the bus and the last

24     little open room that gets cut, 22 -- 24 more seconds.  I wait for the

25     phone call that that material gets found.

Page 34229

 1             The second good question was:  Why would Borovcanin, if he was

 2     guilty, bring the OTP the Petrovic film, the section that was played over

 3     Studio B?  Well, the answer to that is:  That was part of his overall

 4     strategy.  He was betting that we had or we eventually would get that

 5     film.  It was shown on public TV.  You can see the advertisement for a

 6     Rolling Stone concert under it.  It was the best strategy to bring it to

 7     us and try to put his spin on it.  But then why does he -- why doesn't he

 8     tell us that this is an escape attempt, a legitimate escape attempt, that

 9     his men had to quell?  We know it was his men that were involved, given

10     with army and others.  His men were there, his officer was there.

11     There's very reliable hearsay in this case.  Stupar, on 15 July, told the

12     group at the meeting of the burned hand story and said his men, the MUP

13     and army as well, fired back and killing everybody.  It's very reliable

14     hearsay, as well as the other second-hand evidence and other evidence

15     that we've laid out in our brief.  We don't discount that there were army

16     there.  Where there's one Red Beret, the special unit, there are other

17     Red Berets.  The Red Berets are the one disciplined unit in the Bratunac

18     Brigade that would be expected to be at the executions.  So this was part

19     of a strategy.  And he has come off, as we've said, that first statement

20     to me as part of that strategy, to try to make it make more sense.  It's

21     a continuing effort, a continuing strategic way of avoiding his

22     responsibility.

23             Now, I've spoken briefly about Mr. Borovcanin and his control of

24     the road on the 13th.  That is in the brief.  I think that is clear.

25     Yes, there will be some army people at the Kravica warehouse.  We don't

Page 34230

 1     find any army folks in Sandici or along the road, and the documents

 2     indicate this is a MUP operation.  Borovcanin, his tanks, his two

 3     anti-aircraft, his mortar platoon, his soldiers from the various

 4     companies, they're the ones that are there, they're the ones that are in

 5     control, they're the ones that have the power over good and over evil.

 6             It's paragraph 189 where the Defence acknowledge that Cuturic

 7     would have coordinated with Momir Nikolic about the closing of the road.

 8     This also would allow us to infer that Momir Nikolic is coordinating with

 9     Borovcanin's people as well, not just the MUP in Konjevic Polje, which of

10     course would be in close communication with Borovcanin's units.

11             And recall the afternoon of the 13th, as we get closer to the

12     warehouse situation, that Mladic and his senior officers are at the

13     Sandici Meadow and for the first time really see the large number of

14     prisoners that are there.  This is after an organised execution, the

15     Jadar River, a bus and an execution squad was used, where Cerska Valley

16     likely started on the 13th with three buses, an excavator, and I'm sure

17     the orders, if you look, came out at about that time that these men are

18     to be killed.  And that warehouse was right there, and they figured that

19     out.

20             So we have Borovcanin in control of the road, we have him

21     coordinating with the army, we have Mladic and the group passing through.

22     I think we can definitely infer they gave some orders.  Let's see how far

23     we can take this inference.  You've got to look at everything that

24     happened that day before you can make the inference.

25             Well, as you know, Petrovic recorded the video, and we got

Page 34231

 1     snippets of the radio conversations that Borovcanin is having with his

 2     men, and one of them is stopping the traffic along the road.  Now, if you

 3     evaluate that, that -- and you look at the time stamps, which the Defence

 4     agree are accurate, a time stamp appears at 1649, I believe, and then

 5     shortly thereafter is the order to -- for Cuturic to close the road.  And

 6     when we add up the time shot in the video and the travel time and the

 7     cuts, he cannot have issued that order to close the road before about

 8     1654.  So it's after 1655, we believe between 1655 and 1700, he issues

 9     the order, Close the road behind your back.  Now, we know that happened

10     because Pepic, his officer, Pepic, says to Cuturic, his overseer, that he

11     gets orders to close the road, and he does that.  He's not great with

12     times, but we clearly see -- we hear -- we hear the order and we see how

13     it happens.  And as you look back at this, when you evaluate it, you'll

14     see that the Muslim men must have been in the warehouse or almost in the

15     warehouse, giving the benefit of the doubt, when the order to close the

16     road was made.  And I'll get to how you can figure that out.  It's in the

17     brief, but this is -- this can be complicated.

18             The other place where we can go to time is we know from the

19     Bratunac Health Centre that the first soldier that's wounded in the

20     "burned hands" incident, as we call it, gets to the health centre at 1730

21     hours, at 5.30 p.m.  He gets shot through the arm, which can be a very

22     dangerous -- unlike television, a shot through the arm with a

23     high-velocity rifle can cut your artery and kill you in no time, so he is

24     going to be -- we can infer fairly that after he is shot, he is going to

25     be taken to that health centre as soon as possible.  It's about a

Page 34232

 1     ten-minute hurried drive from Kravica to the health centre.  So if he's

 2     checking in at the health centre at 5.30 p.m., his shooting incident, the

 3     "burned hands" incident, happened 10 minutes, maybe 15 minutes earlier,

 4     at 5.15, 5.20.  And that's about the time Borovcanin arrives, shortly

 5     after that incident, 5.15, 5.20, thereabouts, because he hears it

 6     immediately.  He's in Sandici, according to the video.  He says he's a

 7     little bit farther away, but no matter what, he's going to be coming

 8     there as quick as possible, and there's no way to get him there, less

 9     than about three minutes, no matter how far he is.  So he's getting there

10     shortly after it happened; 5.15, 5.20, give or take.  And when he gets

11     there, we see this:  Many bodies piled up.  So we know something horrible

12     has happened in the time between he closed the road and he arrives, and

13     he had to have closed the road after 1654 and there's dead bodies at

14     5.15, 5.20, thereabouts, lots of them.

15             Now, I had said before, I think in a question, that it was our

16     position that the doors that you see on that warehouse were open and that

17     the way the soldiers were acting meant that everyone in there was dead.

18     Well, we have looked at some of the -- well, all of the conclusions in

19     the Borovcanin brief, and not all of them were bunk.  This particular

20     conclusion of theirs, that these were closed doors, we carefully reviewed

21     and we agree with.

22             You'll see other -- if you look at this very carefully, you'll

23     see other pictures shot through those open doors, and the windows in the

24     back of the warehouse cast an eerily similar look as this photo.  But we

25     agree and I've offered to enter in agreement of facts for the record for

Page 34233

 1     you that these doors are closed, so we cannot now conclude, as easily as

 2     we could before, how many people are dead, except that group of 15, 20,

 3     30, that we see scattered all the way from one side of this photo to the

 4     next.  That's a lot.

 5             And as I read the Borovcanin brief, they fundamentally agree with

 6     our times.  They leave a little more space, but they fundamentally agree

 7     that the shootings happened between 5.00 and 5.30, and it's necessary for

 8     their new defence that this was an escape attempt.  So the question

 9     now -- the big question that we get to, when you can go through this and

10     you listen to my colleague is:  Is this all there is?  Is this an escape

11     attempt, or is it a full execution in process?  Well, to answer that

12     question, you go to the two survivors.  They answer the question.  It's

13     why the -- and the Borovcanin team understands that.  It's why they

14     attacked the particular survivor, the one on the west side or, as they

15     call it, the right side of the warehouse so vociferously, because under

16     his testimony he goes into the warehouse, his group is the last

17     group - the other side is already filled with the other survivor and his

18     group - and the last man that comes in and packs that warehouse doesn't

19     have a place to sit, and the Serbs open fire on him and open fire on

20     everybody, and the shooting goes on and on and on until nightfall.  Now,

21     that is not an escape attempt, it's not at the "burned hands" incident.

22     That is an organised and systematic execution.

23             Now, what support do we have for that?  Well, that's one --

24     Witness 157 -- excuse me, 156.  Witness 111, who is at the other end of

25     the warehouse, he is there, and then suddenly outside the warehouse he

Page 34234

 1     hears automatic gun-fire and all hell break loose.  He's not exactly sure

 2     where it's coming from, but it's close by.  He hears automatic weapon

 3     fire and crucially, crucially, he hears hand-grenades.  You don't use

 4     hand-grenades to quell a "burned hands" escape attempt.  When your

 5     soldiers are all around you, you're not going to pull a hand-grenade and

 6     toss it at the guy who's got the weapon.  So if hand-grenades are used in

 7     the early part of this execution, as described by 111, it's a significant

 8     indication we have an organised execution.

 9             What other evidence do we have of hand-grenades?  Well,

10     Borovcanin, himself, in the interview tells us that when he hears over

11     the radio that something terrible has happened, he hears detonations in

12     the background, so -- and then when we see him on the Petrovic video

13     walking around Sandici, this is after he has closed the road, listen --

14     listen to the tape.  You can hear automatic weapon fire and explosions.

15     This is shortly after he's closed the road.

16             Celic, this Serbian MUP guy that's there, that sees the column

17     walk by, also hears hand-grenades at this point.  There's no

18     hand-grenades used to quell some minor "burned hands" situation.  The use

19     of the hand-grenades and the other heavy weapons, look on that side of

20     the warehouse, is a key -- an important and significant indication.

21             Let me show you -- you may recall the Nicholson video which I

22     believe is P01575.  We've got an exhibit to show you.  I don't want to

23     show that whole video again, but I've got an exhibit that shows you where

24     the hand-grenade release handles were found around the warehouse.

25     Several of these handles were found outside the two back windows, so more

Page 34235

 1     indications of hand-grenades.  We've just taken -- looking at this

 2     diagram, there was one grenade handle found at the end of the warehouse,

 3     right -- and then a group of six in front of the area of one window, and

 4     a group of four in front of the area of the other window.

 5             Now, I probably don't have the time to carefully go through the

 6     testimony of 156 and 111, but the only difference really of significance

 7     for your consideration is that after the shooting erupts, 156 says that

 8     it stops at nightfall, whereas 111 says it stops after a while, and

 9     then -- sorry.  And then a half an hour later, firing erupts in his side.

10     People come in and start shooting him, and that goes on and on and on,

11     and he says it goes on intermittently through the night.  And the big

12     dispute here, they're theory that there's a systematic, organised

13     execution that starts at night, is based on their evaluation that 111 is

14     saying that this execution on his side happened as night was falling, at

15     8.30 or 9.00, because there is some indication that he's trying to figure

16     that out, and he says night is falling, as far as he knows, and so that

17     would be 8.30 or 9.00 at night.  Well, to buy that theory, it's not

18     reasonable because Witness 111 clearly says that a half an hour passed

19     between the shooting that he heard on the other side of the warehouse and

20     the time the shooting happened at his side.  The question was asked:

21             "How much time passed between those two events between the

22     shooting outside and the shooting that took place when the soldier fired

23     at you?

24             "A.  I think that in a previous statement I said that, but I will

25     say that again.  It's no problem.  About half an hour passed between

Page 34236

 1     those two events."

 2             That's at 7060, 19 through 24.  Then he says:

 3             "Firing in the east room took place intermittently.  It was

 4     already dark, night had already fallen.  And during the night, there was

 5     several breaks and then shooting would erupt again."

 6             Now, they're founding their whole view of this on his conclusion

 7     that he thinks it's 8.30 or 9.00 at night because he thinks it's getting

 8     dark.  Well, you've been in that warehouse.  Trying to judge what time of

 9     day it is based on light when you're inside that dark warehouse, is

10     impossible.  What he's absolutely clear on is that it -- that his

11     executions happened a half an hour after the ones that happened next to

12     him, and we know those happened about 5.00 to 5.30, when the lull

13     occurred.  So theirs is not reasonable.  It's based on a guy that is

14     feeling it's getting dark, and it may feel like it's getting dark, and

15     they criticise 156.  After gun-fire erupts and hand-grenades are thrown

16     in, can you imagine, what can you hear?  Hand-grenades go off that close

17     to you, and other large weapon fire which there is evidence of, your

18     head's going to be ringing like -- unbelievably.  Who knows?  Who could

19     perform such an experiment?  So his ability or memory on what he is

20     hearing and when he is hearing it is going to be flawed after the

21     shooting erupts.  You've got to give him that; not so much for 111, where

22     it hasn't started yet.  He hears the hand-grenades, he hears the

23     automatic weapon fire, and he also -- while that's happening, the

24     soldiers on his side are getting agitated, which of course you'll get

25     agitated if you knew you were participating and your colleagues were

Page 34237

 1     participating in a mass execution next to you.  But then look at the

 2     testimony of 111, who they say is reliable.  He does -- the guards say

 3     something, Ah, you see what your people are doing, suggesting that the

 4     Muslims are attacking and that's what the gun-fire is for.  So look at

 5     all these things.  It's the case within the case, and it takes very

 6     careful consideration.  Most of it's in the brief on both sides.

 7             The Defence supports their version by citing the evidence of

 8     Mevludin Oric and two other MUP officers to say that there's evidence

 9     that it happened in the evening.  Well, what happened is after the

10     shooting erupted, Borovcanin is there, people are going to the health

11     centre.  Remember the testimony, Cuturic goes to the health centre, gets

12     his hands bandaged up.  Pepic eventually says he comes back from the

13     health centre and reopens the road, and it's not Cuturic that's reopening

14     the road, it's Borovcanin that's reopening the road.  He's the one that's

15     issuing the orders, of course, and controlling this.

16             So within a time it's hard to determine precisely, but if you

17     look at the time Cuturic goes to the health centre, he is checked in

18     there at 5.40, so with the 10 minutes either way and the time it's going

19     to take to get him dealt with, it's going to be at least an hour of him

20     being looked after before he comes back and opens the road, and that's

21     the time, a half an hour delay after Borovcanin arrives and they sort out

22     their dead and their wounded.  Then it begins again in 111's side of the

23     warehouse, goes on for probably another half an hour, 40 minutes, and

24     then that pretty much puts down the thousand people in the warehouse.

25     Now, they're not all going to be dead, but they're going to be

Page 34238

 1     debilitated.  The doors are closed on them.  They're suffering.  A

 2     high-velocity gun-shot in a crowded room with two to three people per

 3     square metre is going to be through multiple bodies.  Constant firing of

 4     an automatic weapon is going to be able to kill and maim a lot of people.

 5     In some ways, it would have been better to torch the place.  They would

 6     have died of smoke inhalation.  Dying slowly of gun-shot wounds, bleeding

 7     to death, twitching on each other.  This doesn't have to take very long.

 8     We have to ask you to think about that.  None of us are experts.  Well,

 9     some of us are.  But this didn't have to happen, it didn't have to take

10     very long.

11             So by 7.00, we see the dead Red Beret, I think his name is

12     Stanojevic.  His body is taken to the health centre, so now we know the

13     MUP has at least had time to clean up a bit.  There's hay on the bodies

14     that are in front.  There's a bus in front.  There's an old car in front

15     of 111.  They're able to close that place up.  They need to do that to

16     get the convoys running.  And so after an hour, an hour and a half,

17     roughly, of organised mass execution, this thing is bound up, and that's

18     when Mevludin Oric and two MUP guys come along.  They're not going to see

19     anything.  Yes, they hear gun-fire, there was intermittent gun-fire

20     throughout the night, I'm sure on both sides of the warehouse, killing

21     people as they moaned or stuck their head out or tried to get out or

22     asked for water.  We've seen that in all the other executions.

23             The main difference -- well, let me go over 156's testimony.  I'm

24     sure Defence counsel will.  He says, walking with the column, which we

25     know happened, that he turns right, crosses into -- crosses in front of

Page 34239

 1     the warehouse.  There is no fence, according to that witness.  Then he

 2     walks between a bus and the warehouse.  Look at the picture.  There's a

 3     bus.  That bus was not given to him.  He drew that in on his own before

 4     he even knew there was such a photo.  And that he walked through that

 5     door that's behind the bus in the photo, and over in the corner of the

 6     right-hand room near the river.  And after that, he says he puts his head

 7     down, and we either don't ask him any more questions on that point or he

 8     doesn't remember anymore, but he does say that he goes out through the

 9     door he came in.

10             And Mr. Ruez, when he was talking about the warehouse, talked

11     briefly about that witness -- just a tiny bit of what that witness had

12     told Mr. Ruez, when Mr. Ruez showed you the picture of the little guard

13     room.  And if we could show that picture to you briefly so you may recall

14     it.  Ms. Stewart can -- it should be P02103, if I'm correct.  This is the

15     guard room that Mr. Ruez talked briefly about, and he repeated a tiny

16     snippet of what this witness had told him; basically, that the witness

17     had managed to get into this room and protect himself from the firing.

18             Now, we have the witness testifying that he goes in the far

19     right-hand corner, and we have Mr. Ruez saying the witness told him he

20     went into this room to protect himself from the firing.  The fair

21     inference from that -- and we have the witness saying he went out through

22     that door when he finally got out, the one that you see on the photo.

23     The fair inference you should make is that the witness managed to get

24     across sometime after those executions or even -- he managed to get

25     through his way as he's trying to get out of those doors and manages to

Page 34240

 1     get into that room and hide, not that he totally has two different

 2     stories, which will be the Defence version, I'm sure.

 3             And the fence, the fence is a big part of their brief when they

 4     discuss this witness.  There was no fence.  This witness clearly said, No

 5     fence.  This is a -- I'll show you a brief blurb about that fence, if

 6     Ms. Stewart could hopefully -- you may remember Mr. Nicholson's video.

 7     This is the only way to get you to see this fence, and you need to take a

 8     look at it, because there clearly was a fence there in January of 1996,

 9     this little fence that they lean up against these older bars that were --

10     had been there a long time.  But this is a little, weak fence that could

11     have easily been kicked over to allow these hundreds of Muslims into the

12     warehouse, and you can look at the Petrovic picture.  There's no fence

13     there, and that's when the witness is there.  And we stand firmly behind

14     the witness's recollection on that, and we'll show you the fence we're

15     talking about so you can see it.  Ms. Stewart can run the video, maybe

16     still it on the fence.

17                           [Video-clip played]

18             MR. McCLOSKEY:  There it is.  It's the shorter one of the two.

19     That was in the winter-time pictures when Mr. Ruez was first there.  This

20     is April 1996.  You will -- if you look in the exhibits, you'll see the

21     winter-time, January.  There's a shot of the fence, too.  Unfortunately,

22     it's impossible to conclude from these photos, whether or not Petrovic

23     could have shot over the top of this fence, so that's why you don't see

24     it in the video, or whether you don't see it in the video because it

25     wasn't there.  In any event, the witness is reliable.  The fence could

Page 34241

 1     have been kicked over easily.  There's no way they would have walked all

 2     this group around to come into this circuitous route when they can kick

 3     over a little fence.  So those particular criticisms don't fly.

 4             Your Honours, that is a difficult subject.  It's going to require

 5     patience to go through the material and double-check everything I said,

 6     double-check everything Mr. Gosnell said, but you don't use hand-grenades

 7     to quell a "burned hands" incident, and these two victims are reliable.

 8             They also attack, in their brief, the reliability of the witness

 9     who testifies about the execution of the men left over at Sandici Meadow.

10     It's one witness.  Why on earth would he tell of an execution involving

11     his unit?  The facts fit, there are extra people at night, it's Sandici.

12     We find the same amount of people in a nearby grave.  We can't prove

13     beyond a reasonable doubt those people are the same as the ones he's

14     talking about, but it's consistent.  That execution would not have

15     occurred without Borovcanin's approval and knowledge.

16             Borovcanin has the conversation with General Krstic later on that

17     evening, about 8.40.  Everything's okay, no problem.  I start questioning

18     him about that.  He runs from that conversation.  Look at the brief about

19     that.  He is lying about that conversation and going back and forth on

20     it, and it's an indication of consciousness of guilt, if I've ever seen

21     any.  He's in -- commanding those troops from the 14th.  He doesn't go to

22     Zvornik until the 15th.  And look at what's going on on the 14th, too,

23     the clean-up, the mess.  It's still his units there.  He's got to be held

24     responsible for this.

25             And, very briefly, he's in control of the road, he's got the men

Page 34242

 1     and the manpower.  Yes, there are small elements of the army, certainly

 2     not Milan Lukic's guys.  You recall in the intercept:  Milan Lukic's guys

 3     on the 13th buses' broken down, and they're not around at the time that

 4     this is happening, and Beara two days later is really upset.  So there's

 5     no Milan Lukic men, that's mystery men; that's blaming every bank robbery

 6     on Jesse James because he's the bad guy in town.  Completely false.  But,

 7     yes, there were Red Berets there, there would have been more than just

 8     one.  There should have been Bratunac Brigade MPs.  Momir Nikolic, who

 9     knows.  When it comes to Kravica warehouse and Momir Nikolic, I have no

10     idea.  As Kweku Vanderpuye has said, corroborate everything Momir Nikolic

11     says, but Momir Nikolic says one thing you can bet on.  He was part of

12     this thing.  He knew all about it.  He was coordinating with the MUP.  He

13     was all over the place.  And now they're acknowledging they're working

14     with these guys.

15             So when Borovcanin understands what's going on here, he has got

16     to stop it.  He had the opportunity, when he came back to the warehouse,

17     to stop it.  He had the men.  Unlike in Potocari the day before, he had

18     the men and the material and the means to stop it.  He didn't.  The

19     Geneva Conventions require him to stop it.  He is guilty of 7(1) for not

20     stopping it.

21             Now, if I could, I'd like to go on to some brief remarks about

22     General Pandurevic.  If I could -- as you know, the brief was extensive

23     on Pandurevic on both sides, and while I have the -- I have many

24     criticisms of their brief, look at it carefully, their arguments are the

25     arguments they've made from the beginning, that they made from the

Page 34243

 1     witness stand.  There's no mysteries, no real last-minute curves.  You've

 2     watched all that.  You've seen it recently.  You've seen me cross-examine

 3     General Pandurevic.  I don't intend to take you through all that.

 4     There's no need to.

 5             But if I could get a break now, Mr. President, I could assemble

 6     my few remarks on General Pandurevic, and we'll come back and finish this

 7     up.

 8             JUDGE AGIUS:  Sure.  We'll have a 25-minute break.  Thank you.

 9                           --- Recess taken at 10.19 a.m.

10                           --- On resuming at 10.49 a.m.

11             JUDGE AGIUS:  Yes.  Mr. McCloskey, your next target is

12     General Pandurevic.

13             MR. McCLOSKEY:  Thank you, Mr. President.

14             You can see the crew is getting ready to come in, and -- but if

15     we could get a five- or ten-minute break after my remarks to get settled

16     in.

17             JUDGE AGIUS:  Yes, of course.

18             MR. McCLOSKEY:  That was the plan.

19             JUDGE AGIUS:  And you have approximately, from what I'm told,

20     about an hour left.

21             MR. McCLOSKEY:  Thank you.

22             All right.  General Pandurevic.

23             As I've said, you've seen the Prosecution and the Pandurevic case

24     battle this out.  I think the issues are clear, the documents are clear,

25     the history is clear.  I'll go over just a few of the points to help

Page 34244

 1     remind you of the Prosecution's case, respond to some of what the Defence

 2     has said.

 3             Briefly, the events of 1993, Operation Proboj, the conduct of the

 4     war from Directive 4, we were surprised to hear in the opening statements

 5     that General Pandurevic was going to be suggesting he was the hero of

 6     Kamenica.  We still see that in the brief.  But as you're aware,

 7     Directive 4 particularly says to get rid of the Muslim population, and

 8     perhaps a document that is second to none, in terms of its level of

 9     authority, was the order from General Zivanovic implementing Directive 4

10     in even more vicious language, to move out the populations of those

11     areas.  And Vinko Pandurevic was a key role -- had a key role in that.

12             When we heard that he was the hero of Kamenica, we dug into the

13     Drina Corps collections to prepare for cross-examination, and the deeper

14     we dug, the more material we found.  And you'll remember his reports,

15     talking about attacking civilians and burning villages and cleaning up

16     after mosques, reports that, in his particular bold style, got edited

17     when they went up from the Drina Corps, cutting out that language.  To

18     suggest he's the hero of Kamenica, in my view, is appalling.

19             The UN report, shells were dropping in on the civilians in the

20     Konjevic Polje area, they're trying to get a hold of Pandurevic to stop

21     that.  It finally stops.  That part of the history of the war is awful.

22     He played a major role in it.  That was abundantly clear.

23             The attack on the enclave, he clearly played a major role.  He

24     was aware of the Drina Corps version of Directive 7 with the awful

25     language in it.  He's aware of the history.  His group played a

Page 34245

 1     significant and substantial role in the take-down of the enclave.

 2             The 12 July meeting.  The 12 July meeting in Bratunac, which he

 3     insists is on 11 July, frankly, I'm surprised that he insisted on that.

 4     I'm surprised that he continues to insist in that.  In fact, in a

 5     document that we recently agreed would go into evidence, it was a

 6     statement of General Andric, saying he went to the meeting on the 11th,

 7     why the Defence wanted it in.  But I'm asking him in that, Well, what was

 8     said at the meeting?  Ah, well, it was on to Zepa.  And I said, Well,

 9     what happened on the 12th?  Well, is that when Mladic came and gave you

10     the speech?  Yes, it is.  On to Zepa.  Well, no one is contesting the

11     fact that Mladic gave the speech at Viogor on the 13th, so Andric had it

12     wrong by one day.  I'd assumed in the beginning of this case that that

13     mistake would be acknowledged, and even though it put them all in

14     Bratunac on 12 July, the day the plan was first implemented in Potocari,

15     I thought they would be able to suck that up.  But their arrogance,

16     unmitigated arrogance.  The evidence and the intercepts, Jevdjevic,

17     Bajagic and the stupid fish, they stuck to that story, these people, all

18     the way through today to the brief?  I know when you review the evidence

19     that you know that meeting happened on the 12th.  The intercept capped

20     it.  Why do they insist so much on that, I ask myself?  It's because

21     they're with Mladic.  Dark things were spoken of.  Why else would they go

22     into that unholy trio of Jevdjevic, Bajagic, Pandurevic?

23             The 13th of July, moves towards Zepa.  14th of July, is with the

24     command, would have been able to communicate with General Krstic, who is

25     fully engaged in the murder operation.

Page 34246

 1             The 15th of July I won't go into in detail.  I've already done

 2     that with the morning of General Krstic.  Remember Pandurevic's words to

 3     me about that.  He, of course, had to know.  He had to have been told

 4     what was facing his brigade when he went home.  The amounts of resources

 5     involved in that required of it.  If he was going to have any chance of

 6     defending his column from the Muslim from the rear, the 2nd Corps from

 7     the other side, the fact that there was a major murder operation in play

 8     at the time that Dragan Obrenovic has pled guilty for authorising and

 9     being involved in, had to have been mentioned.  You must find that as

10     part of your judgement.  There is no other reasonable conclusion.  Vinko

11     Pandurevic by the morning of 15 July is fully informed, and he goes back

12     to his brigade.  He meets Obrenovic.  Of course, Obrenovic tells him

13     what's going on.  He tells you, no, he learns it from some guy named

14     Branko Grujic later on down the road.  That is so patently absurd, it

15     beggers belief.  How does Eileen Gilleece get in her statement that he

16     told Pandurevic about -- that Obrenovic told Pandurevic about it?  She

17     couldn't have made that up.  She hardly knew the case.  All the

18     circumstances from the evidence, from his testimony and demeanour, again

19     of course he was told about it.  That yarn he spun was no more believable

20     than pigs can fly.  We'll talk about pigs a little later on.

21             The 15 July interim daily combat report.  You've heard me talk

22     about it in detail in the opening statement.  You saw us go over it in

23     detail in the cross-examination.  I don't intend to do that again.  The

24     report was written clearly.  It meant what it said, its cryptic

25     reference, its obvious meaning.  The only other time I know Pandurevic to

Page 34247

 1     get that cryptic is when, on his 18 July report, he made reference to all

 2     the killings and how that it upset Zvornik and angered him.  It's the

 3     same kind of thing.  But in that 15 July report, he is taking

 4     responsibility.  The additional burden for us, he is taking

 5     responsibility when he says that.  He's asking for more troops, he's

 6     asking for people to come guard these people, come kill these people, and

 7     come bury them.  He leaves out "kill" because that's too unseemly, but

 8     that's what he's asking for.  He gets some help, but his units

 9     participate.  And the brief on that is rather incomplete, incredibly

10     incomplete.  Look at our brief when you want to see the men, the

11     materials, the units that are involved in this from the 14th to the 15th

12     to the 16th to the 17th.  And this defence that the Zvornik Brigade would

13     have had to mobilise the schools in some official way, and therefore

14     they're done by the civil -- it's absolutely absurd.  Drago Nikolic and

15     the MPs, of course, grab that school at Orahovac for a military purpose.

16     It's under the authority of Dragan Obrenovic.  When Vinko comes back in,

17     it's under his authority.  And they do that with all the schools.

18             The fact that there's a civilian bulldozer driver that gets

19     incorporated into the military operation, those arguments are so lacking

20     in foundation I am, again, surprised they were even made.

21             The argument that Beara came in and became commander, again, I've

22     spoken about that.  You've heard the experts on that.  At one point in

23     their brief, they agree with Butler, that a senior officer can come in

24     and, of course, issue orders and people will follow them, but the first

25     thing they'll do is tell their commander.  But he cannot come in and take

Page 34248

 1     over command unless he's specifically designated to do so.  Nobody's

 2     coming into Vinko Pandurevic's area of responsibility and taking over

 3     command.  He would never allow that.  That argument cannot fly.  For this

 4     case and for history, that argument has to be put in the dustbin.

 5             Can I go into private session briefly?

 6             JUDGE AGIUS:  Let's go into private session for a short while,

 7     please.

 8                            [Private session]

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 34249

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12                            [Open session]

13             JUDGE AGIUS:  We are in open session.

14             MR. McCLOSKEY:  The 15th July report and Vinko Pandurevic's

15     testimony provide a -- there is a unique window into the real meaning of

16     that report, and it has to do with Eileen Gilleece report and the pigs.

17     Now, Eileen Gilleece got some things wrong, but she got a lot right, and

18     what she wrote was:

19             "Pandurevic advised that Rick Butler refers to a handwritten

20     report dated the 15th of July, 1992, at 2000 hours.  That report refers

21     to a pig farm near the 4th Battalion.  The soldiers of the Muslim 28th

22     Division seised the command post and killed pigs."

23             Pandurevic acknowledges they had Butler's report.  He now

24     acknowledges that that had to do with "asanacija," though remember how

25     this all started.  Huge attack on Eileen Gilleece, a huge attack on

Page 34250

 1     "asanacija."  "Asanacija" meant going out and looking for wounded or

 2     casualties first, and then, secondly, corpses and burial.  But what we --

 3     what he was explaining to Eileen Gilleece was the term "asanacija" in the

 4     15 July report was a reference to when the 4th Battalion got overrun on

 5     the 15th and pigs were killed and had to be buried.  That's what it says

 6     in the report.  The problem with that is the 4th Battalion got overrun on

 7     the 16th, and it got -- or the late night of the 15th, after this report

 8     was written.  That's the first problem.  The second problem is there's no

 9     way on God's green earth a brigade commander, in the midst of facing what

10     Vinko Pandurevic was facing, would report the burial of some 20 or 30, or

11     whatever it was, pigs to the Drina Corps Command.

12             Now, Vinko Pandurevic tried to sell that yarn to Eileen Gilleece,

13     and she wrote it down.  And in the direct testimony, something that was

14     extremely well prepared and very well organised, and there was no more

15     important topic in this trial than the 15 July daily combat -- interim

16     combat report, look what Pandurevic said about that.  He acknowledged,

17     talking to Eileen Gilleece about "asanacija," but he noting, I'm sure,

18     that she had mentioned in 1992 in her report, said that he was talking

19     about an incident in 1992, in another area, 1992-1993, I believe, and

20     that was the direct testimony.  No mention of the seizing of the command

21     post, as noted, and the 4th Battalion, and the Muslim 28th Division also

22     noted by Eileen Gilleece.  Completely left that out of his direct

23     testimony.  It had to have been on purpose.  He does not want to get near

24     that crazy story.

25             So on cross-examination, General, what about the 4th Battalion?

Page 34251

 1     Go back and look at what he said.  He tells me, Oh, yes, it did happen,

 2     and he throws in, Oh, there was an artillery barrage beforehand, trying

 3     to account for the fact that the pigs died before the post was seised.

 4     And he ends it by saying, oh, he told Eileen Gilleece both.  Remember

 5     when I said, General, you've got to pick your pigs.  He said he told her

 6     about the pigs in 1993 and he told her about the pigs in 1995.  And if he

 7     told her about the pigs in 1995, just -- just like she said, so she's

 8     explaining "asanacija" with the pig story.  It's absolutely absurd.  It's

 9     a dead give-away.

10             When you're caught up in a trap like this, it's hard to keep your

11     lies straight, no matter how well organised and how good you are, and the

12     attempt to cover every one with some artillery is what got him in

13     trouble.  He went way too far with that with Eileen Gilleece, he got in

14     more trouble on direct examination, and in cross-examination he finished

15     himself.  He did that throughout on most topics.

16             JUDGE AGIUS:  Mr. McCloskey, can you be specific as to the

17     transcript pages, a reference?  Look at line 8:

18             "So on cross-examination, General, what about the 4th Battalion?"

19             All I'm asking is for the reference.

20             MR. McCLOSKEY:  Vinko Pandurevic's testimony in direct

21     examination that I referred to was 31286 to 31288.  Pandurevic

22     cross-examination about the 4th Battalion pig farm was at 32237 through

23     32240.  And this is explained in the brief, Your Honours.

24             JUDGE AGIUS:  Thank you.

25             MR. McCLOSKEY:  That report means what it says.  "Asanacija"

Page 34252

 1     means what it's always meant in this trial; the burial of the Muslims.

 2     "Obligations of security" meant guarding them.  There's no question about

 3     that.  And this document indicates Vinko Pandurevic took this burden on,

 4     as was his orders.

 5             Now, the 16th July, the hero of Baljkovica argued over how many

 6     of his men were killed.  It depends on who you listen to.  One of the

 7     colonels that went out and reported back to the Main Staff provided one

 8     number.  Other reports provide others.  It was a lot of men.  If you add

 9     in the men that died in Srebrenica that are going to be adding on his

10     mind on the 14th and 15th, he loses 20, 30, 40 men in Baljkovica, he

11     stops it.  That's why he stops it.  That's clear in the evidence.  He

12     stopped it to save Serb lives.  There's a suggestion that he did it to

13     save Muslim lives.

14             Well, there's no indication in this record that Vinko Pandurevic

15     gave a hoot about Muslim lives.  It was his job to kill the Muslim army.

16     They had been killing him and his men.  There's no indication that he

17     cared about those Muslims.  He opened that column to save his own men.

18     That's why he didn't get in so much trouble afterward.  The colonels went

19     back and recorded he was in a tough spot.  That's why he did it.  This

20     idea that he did it as some sort of a humanitarian gesture is just as

21     absurd as being the hero of Kamenica.

22             You got that feeling when he was testifying, when he talked about

23     the Muslims and they were preventing any Serb life at a certain side of a

24     river.  There was no love lost there.  Look at his morale reports and how

25     he de-humanised the Muslims.  Now, he does not care at that point about

Page 34253

 1     Muslim lives.  He's trying to save Serb lives.  The suggestion that he's

 2     the hero of Baljkovica is appalling.

 3             His 18 July report, where he indicates, you know, whose idea was

 4     it to bring 3.000 military-aged Turks, created unrest in Zvornik and

 5     problems for him, that showed he was angry and not happy that the Muslims

 6     were forced upon him and his town and the people.  There's not one

 7     indication that it was the killing of them that was the problem.  It was

 8     that he and his guys had to do it.  He's complaining about the burden on

 9     him and Zvornik for having to do it, not that it had to be done.  Did you

10     get any remorse out of his testimony at all?  I didn't see any.  And

11     there's not a shred of concern, or worry, or thought for the Muslims in

12     any of his reports; certainly not those two, the 16th, the 18th, or the

13     15th.

14             A report sent like that at his command to General Krstic would

15     have been treasonous.  Nobody is helping the Muslims, and that cannot be

16     any more clearer than what happened to the Muslims after all this.  The

17     Milici patients linked directly to him through intercepts, and the fact

18     he's commander and they're in his unit, severely wounded folks, yes, they

19     would have seen the Muslims that were gathered in Nova Kasaba, the large

20     amount of Muslims that have since disappeared, so the Main Staff, the

21     Drina Corps, must have made the decision, Oh, we must kill the severely

22     wounded people that are being held by the Drina Corps, so they send

23     Popovic to go do it.  He could have stopped that.  He could have sent

24     those people to Batkovic on his own, as he'd done many times before, I'm

25     sure.  He let them die.  He let those four Muslim survivors of Branjevo

Page 34254

 1     Farm disappear the same way.  He used them as witnesses against their own

 2     guys, who gave them sandwiches and told them where the front-line was

 3     going to go.  He could have stopped that.  He knew all about that.

 4             Who's responsible, who did this in the brigade?  Three guys;

 5     Beara, Popovic, Nikolic?  No, no.  This took a unified effort of a

 6     brigade, outside units, the command structure, the security branch, the

 7     MPs.  The Pandurevic brief, as I said, is wholly lacking in this.  It's

 8     Vinko Pandurevic pointing down the line.  It's awful.  He has a hard time

 9     doing it, when it comes to Obrenovic.  And remember the absurd, absurd

10     suggestion that -- something about Obrenovic pled guilty, even though he

11     wasn't guilty.  That was his explanation for that.  Absolutely crazy.  He

12     rather comes up with that kind of nonsense for you than put it all on

13     Obrenovic.

14             The commander at the time of the 4th Battalion, Lazar Ristic, was

15     up to his eyeballs in this.  He was at Orahovac.  The commanders of the

16     Petkovci Battalion, Marko Milosevic, Ostoja Stanisic, visits from Drago

17     and Beara and had all those prisoners in their schools, there's much more

18     to that story and their involvement.  The Rocevic Battalion,

19     Sreco Acimovic up to his eyeballs in this.  When Vinko Pandurevic is

20     back, his unit, his men involving in the executions, the transport,

21     himself.  There's no more important person for Vinko Pandurevic than the

22     commanders of his battalions.  These are the guys that command the guys

23     in the trenches.  If the guys in the trenches don't perform, Zvornik is

24     lost.  Sreco Acimovic is a key guy.  Anything that Vinko Pandurevic needs

25     to get done, he has to rely on Acimovic in that area.  Acimovic is

Page 34255

 1     guilty, and Pandurevic isn't?

 2             The 1st Battalion, all their soldiers guarding people, helping in

 3     the transport, helping in the clean-up, working with the 10th Sabotage.

 4     They're responsible and Vinko Pandurevic isn't?  Look at all the men and

 5     materials related to every one of those battalions, especially right

 6     after Vinko Pandurevic gets back, and you'll get a true picture of what

 7     went on and his responsibility.  It's laid out very well in the brief.

 8             It's crucial for this Tribunal that the responsibility in this

 9     situation of a commander be understood and set out.  Your responsibility

10     in this regard is immense.  Generations will be looking to your words.

11     I'm sure you'll get it right.

12             Now, in any murder prosecution, even a prosecutor has a hard time

13     believing, many times, that the defendant committed the murder, that

14     mothers kill their children, fathers kill their wives, fathers kill their

15     kids, husbands kill their wives, so it's sometimes hard to get grips on,

16     especially in mass murder.  How can anybody do this?  Do you have to be a

17     demon or a devil?  Well, the answer to that is no, and at this stage of

18     the argument I'd begin to run out of words and I've tried to look to

19     words of people that speak and write much better than I do.  And in my

20     readings, I came across a man that wrote something that I want you to

21     hear, because it goes to this point.  The man is named Leo Tolstoy.  His

22     words will be immortal, not because he writes brilliantly but -- that's

23     one reason, but he clearly had his hand on the pulse of the human

24     condition of war, of peace.  I wish I was going to go to "Anna Karenina"

25     with you, but I'm not.  Of course, I'm going to "War and Peace."  And in

Page 34256

 1     that story, there's a gentleman and an officer named Prince Andrew, and

 2     he's at the forward command post before a major battle with Napoleon.

 3     And his friend comes to the command post, his friend Pierre, and Pierre

 4     says to him:

 5             "'So you think we shall win tomorrow's battle?"

 6              "'Yes, yes,' answered Prince Andrew absently.  'One thing I

 7     would do, if I had the power,' he began again, 'I would not take

 8     prisoners.  Why take prisoners?  It's chivalry!  The French have

 9     destroyed my home and are on their way to destroy Moscow, they have

10     outraged and are outraging me every moment.  They are my enemies.  In my

11     opinion they are all criminals.  And so thinks Timokhin and the whole

12     army.  They should be executed!  Since they are my foes they cannot be my

13     friends, whatever may have been said at Tilsit.'

14             "'Yes, yes,' says Pierre, 'I quite agree with you!'"

15             It goes on:

16             "'Not take prisoners,' Prince Andrew continued:  'That, by

17     itself, would quite change the whole war and make it less cruel.  As it

18     is, we have played at war - that's what's vial.  We play at magnanimity

19     and all that stuff.  Such magnanimity and sensibility are like the

20     magnanimity and sensibility of a lady who faints when she sees a calf

21     being killed.  She's so kind hearted that she can't look at blood, but

22     enjoys eating the calf served up with sauce.  They talk to us of the

23     rules of war, of chivalry, of flags of truce, of mercy to the unfortunate

24     and so on.  It's all rubbish.  I saw chivalry and flags of truce in 1805.

25     They humbugged us and we humbugged them.  They plunder other people's

Page 34257

 1     houses, issue false paper, and, worst of all, they kill my children and

 2     my father, and then they talk of the rules of war and magnanimity to

 3     foes.  Take no prisoners, but kill or be killed, he who comes to this as

 4     I have through the same sufferings.'"

 5             You don't have to be inhuman to feel like this in war, when you

 6     see your father killed, your family killed, and after three years of it,

 7     but it's a soldier's duty to deal with it.

 8             It's easy for me to stand up here and quote the Geneva

 9     Conventions.  I understand that.  I haven't been through what these guys

10     have been through.  But impunity, if we're going to stop it, this Court

11     has to be the first line.

12             Now, the victims in this case are never far from our minds.  I

13     always end with the victims.  I don't trust my words.  I've been doing

14     this -- I have some words on my wall that I would like to take down, but

15     before I do, I want to give them over to you.  And my thoughts are always

16     with those rows and rows of headstones at Potocari, and the eyes looking

17     out at me from the video.  And a soldier named John McCrae many years ago

18     scratched down this poem in a place not far from here, and it's on my

19     wall:

20             "In Flanders Fields, the poppies blow between the crosses, row on

21     row, that marks our place and in the sky, the larks still bravely singing

22     fly, scarce heard amid the guns below.  We are the dead.  Short days ago,

23     we lived, felt dawn, saw sunset glow, loved and were loved.  And now we

24     lie in Flanders Fields.  Take up our quarrel with the foe.  To you from

25     failing hands we throw the torch, be yours to hold it high.  If ye break

Page 34258

 1     faith with us who die, we shall not sleep, though poppies grow in

 2     Flanders Fields."

 3             This Trial Chamber is in the best position to give the men, the

 4     women, of Srebrenica some rest, some peace, some measure of justice.

 5             Thank you very much.

 6             JUDGE AGIUS:  Thank you.

 7             As agreed, we'll have a break now.  Let me consult with my

 8     colleagues for how long.

 9                           [Trial Chamber confers]

10             JUDGE AGIUS:  The decision is we'll have a 15-minute break now,

11     and then, in the course of the question time, we'll have a further 15

12     minutes when we feel it is more appropriate.  Okay, thank you.

13                           --- Break taken at 11.31 a.m.

14                           --- On resuming at 11.50 a.m.

15             JUDGE AGIUS:  We'll start from here:  Mr. McCloskey, would you

16     just state for the record who, as from your team, is present now, because

17     I can't see everyone from behind the column.

18             MR. McCLOSKEY:  Caitlin Chittenden, Chris Mitchell,

19     Rupert Elderkin, Lada Soljan, Kweku Vanderpuye, Janet Stewart, and Nelson

20     Thayer.

21             JUDGE AGIUS:  Okay, thank you.

22             As we said, we have a series of questions which we will put to

23     you.  If, for any of these questions, you need time to do homework, of

24     course, you will tell us.  We are not going to indicate to whom, in

25     particular, any of the questions is directed.  You choose who will answer

Page 34259

 1     the question.

 2             Judge Prost.

 3             JUDGE PROST:  Thank you.

 4             To begin with, I have, Mr. McCloskey, some questions relating to

 5     crimes against humanity, in particular the "Chapeau" requirements for

 6     crimes against humanity.  I'll begin with a very general question related

 7     to the attack, widespread and systematic -- or systematic attack.

 8             Now, yesterday Mr. Elderkin made reference to the Prosecution's

 9     position being that the attack on Srebrenica constitutes the widespread

10     or systematic attack on the civilian population, and I presume that

11     relates, similarly, to Zepa.  What I'd like to know from you is:  What is

12     the Prosecution's position as to when that attack commenced?  I'm not

13     talking about the JCEs here, obviously.  I'm talking solely about the

14     "Chapeau" requirement and the Prosecution's position as to when the

15     widespread or systematic attack on the civilian population began.

16             And as Judge Agius has indicated, if in any of these questions

17     you want to consider your position, you can certainly let us know that.

18             MR. McCLOSKEY:  Your Honour, that -- the -- we had actually --

19     it's one of the legal issues we had discussed among ourselves and looked

20     carefully into the Krstic judgement and the appeals judgement and their

21     findings relating to that, but I cannot right now immediately recall.

22             Whether we considered the attack - and I know "attack" doesn't

23     mean necessarily firing bullets and artillery - whether or not we believe

24     the attack starts with the squeezing and the formal start of the

25     indictment from Directive 7 in March or we begin it with the actual

Page 34260

 1     operation.  I would have to consult on that one, and -- but give me one

 2     second.

 3                           [Prosecution counsel confer]

 4             MR. McCLOSKEY:  Your Honour, in our trial brief, at

 5     paragraph 2868, we talk a bit about this, where we say it's inconceivable

 6     that the very person engaged in the attacks upon Srebrenica and Zepa

 7     enclaves in July 1995 could not have been unaware that these widespread

 8     attacks were taking place.  Indeed, evidence established that all the

 9     accused must have been aware of these attacks, owing to their intimate

10     involvement in various and, in some cases, all aspects of the attacks,

11     including, first:  The restrictions of food and aid entering the

12     enclaves; then sniping and shelling; further forcibly displacing.

13             So that is the position.  I couldn't recall, but we did start it

14     with the restrictions as were formally placed, in our view, by Directive

15     7.

16             JUDGE PROST:  So Directive 7 is the starting point, is your

17     position?

18             MR. McCLOSKEY:  Yes.  As we've set out, I think very clearly in

19     the indictment, we're -- well, this business was going on for quite a

20     while.  Directive 7 is where we wanted to focus the Court's attention for

21     the targeted charge of forcible transfer, the attack beginning with that

22     pressure, and this sniping, and the restrictions, et cetera.

23             JUDGE PROST:  Thank you.

24             Now, the second question also relates to this issue of the

25     "Chapeau" requirements, and you have acknowledged and it's clear, and

Page 34261

 1     it's mentioned in several of the briefs, the point related to the column.

 2     I'm moving now to the column.  You have acknowledged the military nature

 3     of the column, albeit with a civilian component to it, but the existence

 4     of the column as a military column, subject to military targeting.  So my

 5     question is the relationship or the nexus between the military column and

 6     what you have alleged to be the attack, the attack on the civilian

 7     population.

 8             My question to you is:  What is the nexus between that military

 9     column and the attack on Srebrenica, and is it a sufficient nexus to

10     bring the actions against that column, the alleged crimes against the

11     members of that column, within the concept of crimes against humanity?

12             MR. McCLOSKEY:  First of all, let me try to clarify the position

13     on the column.

14             Many times, and I think I've been quoted in various briefs when I

15     stand up in court and talk about that, and I, of course, stand by

16     everything I've said, but many times the context of that is me

17     acknowledging a particular reality, and I'm not necessarily making an

18     overall statement.  Usually, I get up and say, and I recall Judge Agius

19     and I having a discussion on the record about this, is that the head of

20     the column certainly was military and, as such, was a fair target, but we

21     also see a tremendous number of unarmed and non-military men and boys

22     within that column, even women we see.  And there becomes a very grey

23     area for us about when that can be attacked and when can't it be.  And we

24     have clearly a partial-armed column moving through the hills of Kravica.

25     Then we have these people surrendering and getting blasted by

Page 34262

 1     anti-aircraft guns.  That is clearly not, in our view, a fair target of

 2     the column, when people are being asked to surrender and are being

 3     blasted by anti-aircraft fire, even though that is the column.  We've

 4     never chosen to charge that crime or that crime of perfidy in that case.

 5     We don't know who was killed up there, but it's not an absolute that this

 6     column was fair game and a fair military target.  Parts of it were.  It's

 7     in a grey area that we did not choose to go into as Prosecutors in the

 8     indictment, but because as that -- as the elements went through and broke

 9     through Serb lines, they clearly could be fought.

10             Now, that group, with its military command, we believe, were part

11     of the group that were forced out, out of fear of their lives.  Now, this

12     is similar to the Zepa situation, where only we have a retreating largely

13     force of able-bodied men.  They are victims in this case, in our view,

14     even though they are part of a fleeing force.

15             It's a mixed force.  I don't think there's any question factually

16     that this is a hugely mixed force.  You get excellent pictures of this as

17     they are coming out of Zvornik.  There are a few guys with rifles and

18     then there's this pathetic group of men, young and old, with no guns, so

19     it's a mixed force, and these mixed guys with no guns that are no threat

20     to the Serb forces are clearly, clearly, just as much victims of forcible

21     transfer as the men that went to Potocari and got kicked out.  The fact

22     that they chose to run for their lives doesn't make a difference to us.

23             The same thing with the military people.  Yes, they are a target,

24     but when the intent of the perpetrator in this case is to forcibly and

25     permanently remove them, then they are also victims.  It's a

Page 34263

 1     dual-motivation crime, something I've dealt with for many years in my

 2     home country; one good, one bad.  If there is a bad motivation, a bad

 3     mens rea, you chase a guy out because he's a Muslim, because he's in

 4     Srebrenica, because you have this policy to make the Greater Serbia.  You

 5     chase him out, even though he's a private with a rifle.  You run him off

 6     your territory.  You do that with the intent to permanently deprive him,

 7     even though that's not a requirement, but when it is permanently

 8     deprived, there can be no question he is a victim also, in our view.

 9             JUDGE PROST:  Okay.  I think you've answered without answering

10     what was to be my next question, which was whether the position of the

11     Prosecution is that the column -- the members of the column were also the

12     victims of forcible transfer.  And I take it it is the Prosecution's

13     position that the column and the members of the column, themselves, not

14     just those who surrendered but the column and the members of the column,

15     were part of the forcible transfer.  Is that correct?

16             MR. McCLOSKEY:  That's correct.  And if someone wants to get into

17     the issues of au de combat and those issues it's going to have to be

18     someone else.

19             JUDGE PROST:  No, that's -- for my purposes that's the point I

20     wanted clarified.

21             Now, I have some specific questions on this that you may wish to

22     address or it was the area that Mr. Mitchell dealt with yesterday.  These

23     are specific related questions on forcible transfer related though

24     specifically to the accused Nikolic, so I'm not sure -- I'll put the

25     first question, which is in relation again to the forcible transfer.

Page 34264

 1             And I understood Mr. Mitchell's explanation yesterday as to the

 2     receiving of individuals who were forcibly transferred, those who had

 3     surrendered at the road, that the act of receiving or dealing with those

 4     who were received is what is being alleged by the Prosecution with

 5     reference to the forcible transfer and Mr. Nikolic.

 6             My question is:  What evidence is the Prosecution pointing to to

 7     show knowledge on the part of Mr. Nikolic that these men, primarily

 8     surrendered, were forcibly transferred out of Srebrenica?  What

 9     particular evidence would you direct us to on that question of knowledge?

10     Because I assume you would acknowledge that the receiving of these

11     individuals, for it to become part of the crime, would have to be with

12     knowledge that they had been forcibly transferred.  Simply accepting

13     prisoners of war, for example, would not constitute a crime.  So I'm

14     asking for what the particular evidence is on that point.

15             MR. McCLOSKEY:  Well, I can outline some of it.  Perhaps

16     Mr. Mitchell will help me with others.

17             I would first point to Drago Nikolic's important position in

18     Zvornik, which, as you know, was very closely connected to the Srebrenica

19     enclave.  They were involved in the restrictions of convoys.  Sometimes

20     convoys came into the area over the Zvornik bridge as opposed to always

21     through Bratunac, and we see many of the convoy documents going through

22     Zvornik.  And I seem to recall Vinko Pandurevic saying that that's

23     correct, that that was a Main Staff thing, We didn't have anything to do

24     with it.  But you'll see there's some Zvornik Brigade reports where

25     they -- the one I recall is when they were taking medical sterilising

Page 34265

 1     equipment and other things that appeared to us they had no business

 2     taking at the Zvornik Brigade, and this was a process, as you'll recall,

 3     that was overseen by the security branch.  And certainly in Bratunac, we

 4     have Momir Nikolic testifying about that, and I believe there's evidence

 5     that the security branch was overseeing the convoy entry and exit.

 6     That's normal, of course, because convoys are a security threat,

 7     potentially, smuggling, things like that, so it's only a natural part of

 8     security's job to know about that.

 9             So we can likely provide you with more evidence of the Zvornik

10     convoy restriction, which should be in the brief section, and the

11     security branch's knowledge of that convoy restriction, and then ask you

12     to infer that that goes -- should contribute to Drago Nikolic's knowledge

13     that the convoy is being restricted.

14             Also, Directive 7 went to the Zvornik Brigade.  The commander

15     knew about it.  These -- the history of the area was known to all the

16     officers, and I think that is a very fair inference, that they know the

17     history.  The Zvornik Brigade was massively involved in pushing the

18     people down to General Morillon, the enclaves being created, the convoy

19     restriction.  They knew that those people had run for their lives, that

20     they were stuck there, and then he clearly would have known of the

21     operation to take down the enclave.  And he would have known generally --

22     remember Colonel Lasic, the guy that never made general, and you could

23     tell why he never made general, is because he got up here and said

24     something like, I knew what every VRS officer knew.  We weren't -- you

25     know, we're not going to live together, and that was the policy.

Page 34266

 1     Something to that effect.

 2             He knows it from the Drina Corps.  Drago Nikolic has to know of

 3     the policy and practice to move out the population of Muslims from

 4     Eastern Bosnia.  This was part and parcel to -- I mean, remember

 5     Vinko Pandurevic's morale documents.  We have them, I think, April, May.

 6     He's -- it's rife with the idea of bringing back Serbia to Serbs and

 7     getting rid of the Muslims.  This is the -- it's a propaganda calling

 8     card to rally the troops, and it's in many of Pandurevic's documents that

 9     have to go to Drago Nikolic and will go to Drago Nikolic, and he will

10     absolutely know.  This is something that helped give them hope and, you

11     know, We're getting the enemy, including the women and children, out of

12     our lives so that, you know, we can live by ourselves, and so genocide

13     will not be perpetrated upon us again, like it was in World War II.  This

14     is the propaganda that was being fed to everyone, and with the results to

15     back it up, that they all had to follow and take part in, from convoys to

16     seeing some of the operations that went on.

17             I'm sure Drago Nikolic would have been aware of some of the

18     operations.  The 10th Sabotage got together with the Bratunac Brigade,

19     I think it was June of 1995, to go in and just to create havoc in the

20     enclave.  That is, given the connections, is something that he probably

21     was aware of.  But overall, his knowledge, he had been fully aware of the

22     big picture.  And the little picture, remember, 168 knew that there were

23     at least 3.000 people that had surrendered on the 12th and 13th, and the

24     phone call from Drago Nikolic directly related to prisoners, was clearly,

25     you know, connected to the massive numbers of people that are

Page 34267

 1     surrendering.  The Zvornik Brigade sends down -- has to send buses down

 2     there.  This is something that he should have been aware of.  It happened

 3     very visibly, it had a potential -- a potential threat to Zvornik.

 4     Zvornik troops were away at the time.  Drago Nikolic, as the security

 5     officer, had to be very aware of what was going on down there because the

 6     word, as you could tell -- Obrenovic knew very soon that there were

 7     people heading up in his direction.  This would have definitely engaged

 8     the security and intel forces.  And so when you keep track of the army

 9     and the soldiers that are heading in your direction, you clearly know

10     that there's civilians and the civilians are related to it, because they

11     are completely interrelated.

12             I want to just very briefly -- it's really impossible to separate

13     the separation of men and setting them aside for execution and the

14     forcible transfer of the women.  The same troops are doing it.  It's not,

15     you know, one little group that's doing the separating and one little

16     group that's doing -- they're all doing the same thing.  They're using

17     the same vehicles.  They can't transport the men up to Zvornik until they

18     get the women and -- until they get the vehicles for the women and

19     children.

20             Now, I don't want to go into my argument without an answer to a

21     question which --  it does remind me of -- we've got to look at these

22     things together.  It's not separate.  As Drago Nikolic is aware of the

23     military threat, he will know the civilian connection to it.

24             JUDGE KWON:  You're saying that the same troops did it, but you

25     refer to two joint criminal enterprises?

Page 34268

 1             MR. McCLOSKEY:  Yes.  We chose two joint criminal enterprises to

 2     try to describe this God-awful crime, and we did it based on our

 3     knowledge and review of the law of joint criminal enterprise as it came

 4     out.  And we -- we, frankly, did not feel we could charge everybody with

 5     the murder operation that was involved in the joint criminal enterprise.

 6     We do believe that there may have been people engaged in one that were

 7     not engaged in the other, or merely -- or, you know, to the point of

 8     making it worth a criminal prosecution.  That was -- that was done on

 9     purpose to reflect the best way to charge individuals without

10     over-charging.

11             JUDGE AGIUS:  Yes, but going back to Judge Prost's question, with

12     your indulgence, do I read you well?  Are you saying that there was no

13     way anyone on the ground there could have understood the attack on

14     Srebrenica, the final attack on Srebrenica, as possibly excluding a

15     forcible transfer of the entire population?

16             MR. McCLOSKEY:  I think the people in the Officer Corps that were

17     familiar with the practices and the policies, such as Drago Nikolic and

18     the others, would have been fully aware.  It's unbelievably noted in

19     documents, and it's from the directives and orders, to the Krivaja 95, to

20     other things.  The officers would be aware that this final push was meant

21     to be the final unburdening of the area of Muslims.  That has to be

22     known; not to every soldier and every farmer in the trench, but the

23     officer corps of the Zvornik Brigade, under the leadership of

24     Vinko Pandurevic, yes.  These guys knew it, they were fully engaged in

25     it.

Page 34269

 1             As we heard, Vinko Pandurevic didn't think they'd be able to do

 2     it because he thought UNPROFOR would get in their way.  He was wrong

 3     about that.  UNPROFOR backed off or UNPROFOR backed off because of

 4     hostages.  But they were very much aware of those enclaves, they were

 5     very much aware of those Muslims, and not least of which because the

 6     Muslims were a thorn in their side, militarily.  So this was a huge focus

 7     for the officers, the people especially in security and intel.

 8             JUDGE KWON:  Coming back to that issue -- I'm sorry.

 9             JUDGE AGIUS:  Go ahead.

10             JUDGE KWON:  What would be the border-line that would distinguish

11     those who would be responsible and those who are not responsible?

12             MR. McCLOSKEY:  For forcible transfer?

13             JUDGE KWON:  Yes, given the dual nature of the attack order.

14             MR. McCLOSKEY:  A soldier that takes part in an attack or part of

15     the processes, with full knowledge that a principal objective of that

16     attack was to move out the Muslims against their will, is responsible;

17     private, sergeant, lieutenant on up.

18             Now, practically, what I charge in this Tribunal, with our

19     mandate, the mens rea is no different, but it depends on knowledge and

20     level of involvement.  I would say we'd have to have significant,

21     substantial involvement -- significant or substantial, and I can't

22     remember which.  Anybody remember?  I'll be in trouble with Mr. Kramer.

23     But once they have significant and substantial involvement with the

24     knowledge of the criminal event, and that their actions will result in

25     that, they're part of it.  There's even law that when they can -- you may

Page 34270

 1     infer that if situations where it's -- there's a reasonable likelihood

 2     that their conduct will result in that, you may infer that they intend

 3     the reasonable and likely consequences of their acts.  I think that's

 4     even fair.

 5             In our case, that's not an issue.  These people know what they're

 6     doing, and they know that their actions are causing the crime, forcible

 7     transfer or the murder.  That's the intent I've spoke about.

 8             JUDGE KWON:  Would you exclude the possibility of a soldier or

 9     officer who would follow the attack order while not obeying the illegal

10     part of that order, given that there's a legitimate part of that order?

11             MR. McCLOSKEY:  Well, I just spoke briefly of Borovcanin on that

12     point.  He knows -- historically, he's very well aware of Bratunac's

13     families there.  He was the chief of police.  He knows precisely what

14     this was about.  He received intelligence that civilians were there, that

15     there were military-aged men there.  He knew that they were going to go

16     in and get rid of those people.  He's given an order to attack.  He knows

17     that the troops who's he's under the command of are going to take part in

18     that attack.  He is a senior officer.  I think he is guilty when he takes

19     part in the attack.

20             Now, you can tell from my closing argument he's part of the

21     attack.  I don't really seriously personally start getting any kind of a

22     worry about him in that until he starts going into Potocari and taking

23     part of the -- the physical movement of the people, and allowing the

24     abuse, and doing the separations.  That's where, personally, I hammer

25     Borovcanin.  His involvement in the attack, while I think is technically

Page 34271

 1     a violation because he knows it's criminal, he knows he cannot be

 2     involved and he knows he is involved, if you look even under the RS

 3     regulations, he's guilty, whether personally -- we would have charged him

 4     had he stopped and reversed out of Bratunac, I can tell you, we wouldn't

 5     have.  But would he have been technically guilty?  Yes.

 6             JUDGE KWON:  If you could expand further why you think

 7     Mr. Pandurevic is guilty in this respect.

 8             MR. McCLOSKEY:  In that -- well, it's fundamentally the same.

 9     Vinko Pandurevic, as we have seen, he has pointed out, he was at the

10     meeting in - was it 1993 - with Karadzic, he was in Boksanica in 1995

11     with Mladic.  He was one of the premier officers of the VRS.  He went on

12     to be minister of defence.  He's a published author.  He was a

13     significant force and a man and thinker at the time.  He, better than

14     anybody, knew the objectives.  Look at those morale things.  He knew the

15     objective was to throw them out.  He had been following Directive 4,

16     following the orders.  His knowledge was immense, his intent was immense.

17     He was the one who issued those morale orders that glorified the moving

18     of the Muslim population out of the area.  So he knew precisely what this

19     was about, and he is the kind of guy that has the ability to effect

20     change and say, No, Trnovo is where -- you know, trying to suggest

21     change.  Now, his career would have been over, had he done that, but --

22     so he goes into this attack with incredible knowledge on what the results

23     are going to be should they be victorious.

24             Now, had Naser Oric been there, had NATO done a more effective

25     bombing campaign, and had the UN forces been able to protect the Muslims,

Page 34272

 1     well, Vinko Pandurevic would have been sent packing along with

 2     General Krstic and the Muslims would still be there.  But that's not the

 3     way it happened.  And once the ball started rolling, and the victories

 4     started mounting up, and the massive population starts leaving, then it

 5     becomes no more grey area, Your Honour.  Vinko Pandurevic is still there,

 6     he's still engaged in it, and it's not just him participating in that

 7     initial attack.  The grey area of when I personally begin to see criminal

 8     conduct I can charge is when the attack is successful and the civilian

 9     population is being targeted, and the mortars are falling on the people

10     on either side of the road as they're leaving.  This is the 11th of July.

11     Vinko's forces are still there, he's still around.  He's telling Mladic,

12     We've got to, you know, get the weapons up in the hill.  The Muslims are

13     still around.  He's fully engaged.  So that's when I have no problem

14     putting the forcible transfer right into Mr. Pandurevic's lap.

15             JUDGE PROST:  But, Mr. McCloskey, just on that same point, just

16     as Mr. Pandurevic is aware of -- on your description, is aware of the

17     background and the forcible transfer issues, he's also very aware of the

18     military purpose behind the attack on Srebrenica.  So is it your position

19     that he's to say, No, to the attack, he's to say, No, pressing the attack

20     further, knowing that there's this dual purpose that you've described to

21     the attack?

22             MR. McCLOSKEY:  I don't think the law can allow for a huge grey

23     area here.  I think commanders need to know what is against the law and

24     what is not.  When a person has such a clear object - an illegal object -

25     as written down in Directive 4, as written down in Directive 7, as part

Page 34273

 1     of an entire war plan, when they see that that is happening, yes, when

 2     they start fully engaging their unit, they should say, No.  And that is

 3     the incredible duty of the commander.  He has to say, No, under the law

 4     here, under the Geneva Conventions, in my view.  Now -- because it's his

 5     intent, it's his mens rea, his joining the joint criminal enterprise

 6     here, and he's -- all of that's happening.  He's intending to do it, he's

 7     knowingly doing it, he's participating, and it's a substantial part of

 8     the operation.  It can't be that, Oh, when things start to go bad, it

 9     gets criminal.  I mean, how is a general to know when it's criminal and

10     when it's not?  It's criminal from the beginning.  That's when they have

11     to say, No.

12             Now, had he taken part in this and stood down, or written reports

13     condemning everything and refusing to have his people involved in it, and

14     done -- and helped the UN and people, and been honest with us about when

15     he was in Potocari and when he was in Bratunac, then that is a horse of a

16     different colour.  But when you have a policy like this, that's so clear

17     from the get-go, I don't know in the next 20 years where we're going to

18     see something that's so clear as this, the six strategic objectives, the

19     Directive 4.  This is such a massively horrendous thing.

20             Please, and I'll say this briefly, don't underestimate the horror

21     of ethnic cleansing.  This is a policy of ethnic cleansing.  Yes, it has

22     a military aspect to it because of what the Muslims are doing, but this

23     is just as much a part of the policy of ethnic cleansing as anything

24     you'll see in this case.

25             And ethnic cleansing is worse than lighting a building on fire

Page 34274

 1     full of people.  It's lighting a war, lighting a country on fire.  What

 2     they did in Kamenica and Srebrenica is a long end of a long series of

 3     horror, that was not necessary.  It's not necessary in war to do what

 4     they did.  And Srebrenica was the final culmination of it.

 5             JUDGE AGIUS:  One question which is related to what you have been

 6     saying and what you have been asked.

 7             Is it the Prosecution's position that the aims of Directive 7 and

 8     7.1 or "/1" couldn't have been completely achieved by the Krivaja

 9     operation, Krivaja 95 operation, alone, but without the specific

10     attack -- final attack on Srebrenica itself and the forcible transfer of

11     the population?

12             MR. McCLOSKEY:  I'm not sure I completely understand.

13             I think Krivaja 95 was not meant to be the final -- I want to say

14     "final solution," but it was not meant to be the final -- the final

15     objective or the final movement to make Directive 7 happen.  It's -- in

16     the wording of the Krivaja 95, it's clear it's creating the conditions to

17     create the elimination of the enclave.

18             JUDGE AGIUS:  One wonders perfectly well my question.

19             MR. McCLOSKEY:  Yes.  So Krivaja 95 was there to create the

20     conditions to be able to follow through and get rid of the Muslims, but

21     just create the conditions.  Pandurevic is concerned that the UN would

22     stand firm would have meant that they couldn't have gone any further, and

23     so Krivaja 95 was only -- was only Chapter 1 in what they hoped to

24     achieve.  Well, with Pandurevic's success, his military success, and

25     remember, he knows the objective and he is fighting hard, then Krivaja 95

Page 34275

 1     also says somewhere in it, you know, Be ready to take advantage of the

 2     situation and move forward, something like that.  All military plans have

 3     that.  And so on July 9th, Krivaja 95 becomes the possibility for the

 4     final objective.  That's why it's so important.  Tolimir is sending

 5     Karadzic's message that they've agreed with what must have been Mladic's

 6     proposal to the IKM, to Gvero, and to Krstic, a hugely important thing.

 7     They've changed from a Drina Corps plan to create the conditions for the

 8     elimination of the enclave to, We are now going forward, the enclaves are

 9     going to be eliminated.  The UN is weak, the Muslims are weak.  Full

10     speed ahead.  Krstic, Gvero, Pandurevic, Mladic, Miletic, they're all

11     involved, and then it becomes massive.  And then it's the final

12     objective.

13             But, no, Krivaja 95 didn't start out that way.  It was -- it was

14     meant to be the beginning, then to roll on to Gorazde, which they never

15     managed.

16             JUDGE AGIUS:  All right.  I'll put a question to you in -- it has

17     multiple questions in one, basically, but you need to focus on the

18     principal part of it.

19             Who do you consider, as regards genocide is concerned, who do you

20     consider, for the purpose of the alleged crime of genocide, to be the

21     targeted group?  And I'm asking you or whoever will answer this question

22     for the following reasons: that, for example, we heard yesterday

23     Ms. Soljan referring to the Bosnian Muslims in Eastern Bosnia.  Sometimes

24     we've heard others, yesterday and the day before, but also throughout the

25     proceedings of this trial, referring to the Bosnian Muslims in Srebrenica

Page 34276

 1     and Zepa as being the targeted group.  Also, there seems to be some sort

 2     of incongruity in the indictment itself; for example, paragraph 30 of the

 3     indictment refers to the killings of Muslim men from Srebrenica;

 4     paragraph 26 refers to both female and male members of the Bosnian Muslim

 5     population of Srebrenica and Zepa; paragraph 33 refers to the entire

 6     Bosnian Muslim population of Eastern Bosnia.  Basically, since this is

 7     one of the issues that we will have to determine for the purpose of the

 8     count charging genocide, we need to know exactly what your position is as

 9     to which or who was the targeted group for the purpose of the genocide

10     charge.

11             MR. McCLOSKEY:  Well, we describe the group which is -- as you

12     know, the Statute says the group in whole or in part.  We are, of course,

13     talking about a part.  And the group is the Muslims of Eastern Bosnia,

14     and those are defined as the Muslims of Srebrenica and Zepa, and should

15     include Gorazde, but primarily Srebrenica and Zepa, though Gorazde is

16     also part of Eastern Bosnia and they were also the focus of the ethnic

17     cleansing campaign, as you've seen from the evidence.  On to Gorazde,

18     Gorazde's next.

19             JUDGE AGIUS:  Thank you.

20             In your brief, final brief, you deal with -- at some length with

21     regard to the Trnovo killings and the involvement of the Skorpions unit.

22     My question to you is:  What evidence are you adducing, because it's not

23     clear from the final brief itself, which allegedly -- what evidences are

24     you adducing which would connect the Skorpions unit itself, which

25     allegedly committed the killings in Trnovo, with any of the accused in

Page 34277

 1     the present case or, for that matter, to any other member of the alleged

 2     JCE?

 3             MR. McCLOSKEY:  Well, just to remind the Court, factually, the

 4     six or seven victims from Trnovo all went missing.  I don't know if it

 5     was Potocari or the woods, but clearly they were just -- just like

 6     Orjem [phoen] Soljic or Mevludin Oric, they had been separated and, at

 7     some point within this July time-period, got shipped all the way across

 8     Bosnia to Trnovo.  Now, we see Muslims getting turned over from Serbia,

 9     to Bratunac, and being shipped to Bisina on the -- is that the July 26th

10     time-period, I think, 23rd, and we see Muslims going across the river in

11     late July and with the Serb forces after that, but -- so these are

12     Srebrenica victims that get arrested in the Drina Corps zone of

13     responsibility, and I think you can infer they end up in Trnovo because

14     buses or trucks are going back to Trnovo that were used in the forcible

15     transfer operation or murder operation.

16             I can't think of no other reason why you would send somebody all

17     the way to Trnovo, except they had troops there ready to do it.  You put

18     the Muslims in the vehicles that are going back already and you send them

19     to Trnovo.  Well, that's across Drina Corps and other corps lines.

20     It's -- that has to be managed by the Main Staff.  You don't -- and it's

21     not just six.  They're not sending six people in a mini-van all the way

22     across Bosnia.  I think you can infer that this is a busload or a

23     truckload of people, and they are being shipped there to scatter and hide

24     this horrible crime.  And so the logistics of doing that, the fuel, the

25     vehicles, that all involves coordination from the level of the Main Staff

Page 34278

 1     in order to do it.  Someone has to connect with the forces on the ground.

 2             Remember, that the forces on the ground in Trnovo are these joint

 3     forces of army and MUP.  If you'll recall, Borovcanin was commanding such

 4     a force when he was shipped over to Srebrenica.  He had the Skorpions

 5     under his command, and he was reporting on them, on the end of June and

 6     July, the Skorpion that came and the others.  So someone had to contact

 7     either that MUP or the army.  It was the army -- Borovcanin was working

 8     as per regs, he would have been working under the army, so someone would

 9     have had to go to the army in Trnovo.  Now, whether that was the Sarajevo

10     Romanija Corps people, or it would have had to have been at the corps

11     level.  That would have to go down through the army command to the MUP

12     command, because the Skorpions wouldn't be able to do any orders until

13     their MUP guy, their equivalent of Borovcanin, whoever he was at the

14     time, they would have had to go through him to be able to get him to

15     engage these guys.

16             So, yes, we have to make some inferences, but you don't get

17     Srebrenica victims transported, with the fuel and the vehicles, and given

18     to a very well-organised, disciplined Serbian unit, without massive

19     communication and organisation at the highest levels.  That's

20     inferencing, but you just -- you cannot get across the country without

21     fuel, without vehicles, and the approval to do it.

22             JUDGE AGIUS:  Are you pointing your finger to any of the accused,

23     in particular, or to all those who took part in this particular joint

24     criminal enterprise?

25             MR. McCLOSKEY:  No, for Trnovo, I'm not pointing at these

Page 34279

 1     accused.  I'm not going to point at the accused for executions like that

 2     unless I've got evidence of the fuel, of the -- more something.  I'm

 3     going to want some hands-on evidence before that.

 4             I can tell you that it would be almost unimaginable for the chief

 5     of operations not to know that they were shipping large numbers of

 6     Muslims across the country to be murdered.  His involvement, his actual

 7     awareness in it, is too fuzzy to point any fingers.

 8             JUDGE AGIUS:  Okay.  You're not alleging that the Skorpions unit

 9     was part of the Zvornik Brigade or under its responsibility, in other

10     words?

11             MR. McCLOSKEY:  No, no, no, no.

12             JUDGE AGIUS:  Thank you.  Yes.

13                           [Trial Chamber confers]

14             JUDGE AGIUS:  I'll ask you a couple of questions on reburials,

15     and then I'll give an opportunity to my colleagues, and then I'll come

16     back to you later.

17             Within the context -- Mr. McCloskey, within the context of the

18     Tribunal's Statute, the law, and the indictment, is it your position that

19     reburial, itself, constitutes a crime and that it's being charged as

20     such, a crime punishable pursuant to our Statute, in other words?  That's

21     why I mentioned initially the Statute.

22             MR. McCLOSKEY:  By itself, no.

23             JUDGE AGIUS:  Okay.

24             MR. McCLOSKEY:  No, it has to be done with the knowledge of what

25     the purpose is and in furtherance of that purpose.

Page 34280

 1             JUDGE AGIUS:  Okay.

 2             JUDGE KWON:  So that was the question.  Somebody who didn't

 3     participate in killing before genocide, not at all, participate in

 4     reburial, it is your case he's responsible for genocide, for killing, for

 5     whatever?

 6             MR. McCLOSKEY:  Well, we do believe that the JCE continues

 7     through the end of the reburial, and if you brought an officer in to make

 8     sure -- let's say they brought some guy from Serbia because someone else

 9     was busy, they brought in a specialist from Serbia to make sure that

10     these burials went according to plan and were part of -- and really done

11     it quietly.  That would be a -- that would be a substantial contribution

12     to it, and I think the issue would be a sentencing issue under our law.

13             Now, we're talking about soldiers and bulldozer drivers and

14     things like that.  No.  But if an officer comes in and is really

15     providing a substantial and significant part to keep this quiet -- you

16     see, murder, you've got to cover up.  At home, it's not -- cases all the

17     time, you've got to keep it covered up and keep it covered up.  Mass

18     murder is even more important, so burials and reburials and mass murder

19     has to be viewed differently than we look at things domestically.  So if

20     someone comes in and provides some substantial assistance to something

21     that important, to keeping this from the international community and

22     keeping this crime quiet, yes, I would say that would be add -- be a

23     substantial and significant contribution.

24             We sometimes get a bit spoiled here.  With a couple of less

25     survivors and without aerial imagery, we may not have known anything.

Page 34281

 1     They could have been fully successful in this.  The amount of luck and

 2     the -- it was the international community getting into Bosnia in January

 3     that allowed this to happen at all.  And so the ability to come in and

 4     keep things quiet, be it Afghanistan, Iraq, the United States, or

 5     anywhere else, is a big deal.

 6             JUDGE AGIUS:  Yes, Mr. McCloskey, always on the subject of

 7     reburials, I've got a few more questions.

 8             You seem, if we understand you well, to be charging reburial as a

 9     natural and foreseeable consequence of the murder operation.

10             MR. McCLOSKEY:  Yes, correct.

11             JUDGE AGIUS:  Could you expand on how you consider that reburials

12     legally can qualify as a natural and foreseeable consequence, in the

13     circumstances of the case?  I mean, people like the ones you've charged,

14     Nikolic, Pandurevic, Popovic.

15             MR. McCLOSKEY:  Well, fundamentally, I view it in two ways:  One,

16     as any murder, you have to dispose of the body if you want to get away

17     with it.  I mean, that is a typical part of --

18             JUDGE AGIUS:  That's burial.

19             MR. McCLOSKEY:  -- of any kind of a normal murder, and it's

20     absolutely foreseeable that the police or somebody are going to be able

21     to figure out where you hid the body, especially when you have to act

22     quickly, in the eyes of neighbours, or the international community in

23     this context, and that it's absolutely foreseeable that you might have to

24     move the body.

25             Now, I take my neighbourhood murder example, but it's even more

Page 34282

 1     important on an international mass execution level.  It's got to be --

 2     Mass Executions 101 has to be where to rebury the bodies when the

 3     internationals figure out where they are, and how to do it.  In fact, we

 4     taught them.  In Kosovo, they didn't do mass graves anymore.  They killed

 5     people and left them lying and stuck guns under them because of what they

 6     learned from Srebrenica, in my view.  So it's absolutely foreseeable that

 7     people might find where you buried mass bodies, and they might -- and

 8     that you need to have a plan ready to do something about it, especially

 9     near the end of the war.  You know, they -- that's -- in my view, that's

10     foreseeable, that you have to hide the body from the authorities if they

11     get close.

12             JUDGE AGIUS:  Thank you.

13             You also charge -- yes, yes, Judge Stole.

14             JUDGE STOLE:  Just on that one same question:  The timeline is

15     quite different when it comes to the reburials, compared to the burials,

16     naturally, so the reburials would, in time, be quite a bit further away

17     from the killings and the burials.  These do not, in the Prosecution

18     opinion, make any difference?

19             MR. McCLOSKEY:  Well, it could.  As you know, the burials took

20     place from -- from 14 July through 17, 18, 20 July, the initial burials,

21     and the reburials started -- well, the fuel started -- we see the fuel

22     coming in, I believe it's September 15th from the Main Staff, so we have

23     a few months.  That's not very long, in my view.  It's a couple of

24     months.  The longer the reburials were from the actual crime would -- it

25     would depend on the circumstances, but the circumstances in this case are

Page 34283

 1     pretty clear.

 2             In July, there's no thought of -- immediate thought of Dayton.

 3     Well, the end of the war is considered near.  That's one of the reasons

 4     why they want to push towards Srebrenica.  The idea of NATO forces or

 5     people like that on the ground is really unthinkable, and that's one of

 6     the reasons why you see them acting so arrogantly and that documents can

 7     be written the way they are written, and only get found with search

 8     warrants.  And so early on, in July, it was not a major concern, even

 9     though it should have been.  But August, September, Madeleine Albright

10     and her photographs in front of the UN, showing disturbed earth, that is

11     all pretty quickly happening, and so it's after Madeleine Albright, who's

12     in August, I believe, that in September we actually see the fuel getting

13     there.  So it's, you know, burials in July, UN photos to the world in

14     August, reburials in September, boom, boom, boom.  No big delay, no

15     change of personnel, no other reason to be doing this.  This idea that

16     they had to bury -- rebury people for hygienic reasons, no.

17             So I fundamentally agree with you have to look at the timeline

18     and you have to see how connected it is, but in this case very connected.

19     As I just mentioned, that's the outline of -- burials in July, the world

20     knows in August, the fuel comes in September, and the bodies start

21     dribbling through Bratunac and Zvornik in September and October.

22             JUDGE PROST:  Sorry, Mr. McCloskey, just one more question on

23     this -- from me, anyway, on this particular topic.

24             This whole question of foreseeability, I want to make sure I

25     understand you completely.

Page 34284

 1             In your argument that the reburial is particularly, and

 2     Mr. Elderkin argued this yesterday, a contribution, it doesn't really

 3     matter, then, on your position whether it was foreseeable or not; at the

 4     end of the day, it's another factor going into the contribution.  And

 5     foreseeability, which sometimes can bring into confusion that there's

 6     some allegation of JCE 3 here, which is what I was not clear on, my

 7     understanding, though, after Mr. Elderkin spoke yesterday was that, at

 8     the end of the day, the foreseeability factor is really not that

 9     significant on your argument of contribution?

10             MR. McCLOSKEY:  Mr. Elderkin is absolutely correct, and we put a

11     lot of thought into his argument, as did he, and that's what we came up

12     with, and that's why that was specifically mentioned by him.  JCE 3 and

13     foreseeability is another issue.

14             JUDGE PROST:  Thank you.  I think I have your point now.

15             JUDGE AGIUS:  Thank you.

16             Judge Kwon.

17             JUDGE KWON:  Since you have mentioned JCE 3, I have a question

18     about particularly the extended form of joint criminal enterprise.

19             You charged the accused for opportunistic killing pursuant to

20     that form of responsibility.  The requirements for that is not only that

21     it was foreseeable, but also that the accused took the risk willingly.

22     So if you could explain to me what evidence we have as to whether or not

23     and how the accused willingly took that risk.  I'm particularly

24     interested in knowing with respect to Generals Gvero and Miletic, because

25     they were not charged for any killing, except for these opportunistic

Page 34285

 1     killings, while others were.

 2             MR. McCLOSKEY:  Yes.  Well, General Miletic and Gvero, while

 3     noted as members of the joint criminal enterprise to kill people, were

 4     not charged, and the foreseeable -- the opportunistic killings were

 5     specifically connected to the foreseeability -- to the forcible transfer

 6     charges related to Generals Gvero and Miletic, and so that's a -- that's

 7     a separate issue.

 8             And if I get your question right, it's the -- it's their willful

 9     and intentional involvement and substantial assistance in the ethnic

10     cleansing of Srebrenica that provides the foundation of their -- that

11     makes them responsible for the foreseeable actions, when there's no

12     question in my mind that Generals Gvero and Miletic are fully versed in

13     the horrors of ethnic cleansing.  They see it.  It's not only from the

14     Muslims, as they're driving the Muslims out pursuant to these directives.

15     They see it happening to Serbs.

16             Grahovo and Glamoc.  If we start this Tribunal over again, I

17     would love to go to Grahovo and Glamoc and see what happened there,

18     but -- so they see ethnic cleansing from both sides and they see how

19     horrible it is.  They see what happens when -- Western Slavonia, for

20     example, we see what happens when the Muslim forces go in to clear out an

21     area and what they do to some of the Serbs.  So they see it from both

22     sides.  They know precisely what this means and how ugly it is.  It's

23     more than foreseeable; it's a surety, that soldiers seeking revenge are

24     going to act out.

25             Look at General Gvero's order of the 13th.  He is actually

Page 34286

 1     telling his soldiers that, This Muslim column is going through and among

 2     them are inveterate criminals and villains, and you must stop them at all

 3     costs.  You know, you might as well say, They're going to rape your

 4     children and wives.  This is what, you know, the soldiers on the ground

 5     are getting fed, that the Muslims are coming to commit genocide on you.

 6     This is the bile that General Gvero is selling.  He knows that when some

 7     Muslim is getting captured by Serb soldiers who have lost family members

 8     and have been given this steady diet of bile, they're going to act out.

 9     It's more than foreseeability, it's a surety.  But certainly Miletic and

10     Gvero, who have seen the ethnic cleansing and the results of it can

11     foresee and did foresee that the ethnic cleansing policy would result in

12     deaths.

13             JUDGE KWON:  My question was not any foreseeability; whether they

14     took the risk.  But I think that your answer would do.

15             But at the beginning of your response, you said that

16     Generals Gvero and Miletic were noted as members of the joint criminal

17     enterprise to kill people.  Could you draw my attention to that passage?

18             MR. McCLOSKEY:  There's an annex -- I think it's an annex in the

19     indictment where we -- as you know, I think, the law requires us to list

20     those that we feel are in a joint criminal enterprise to kill people, and

21     we listed them in there.  It is paragraph -- paragraph 97, and we didn't

22     do it without evidence to support it.  We have not argued it, we have not

23     pushed it specifically, because we didn't charge it.  But when required

24     to put down who was in it, we put it down.  And I can highlight the

25     evidence of their involvement, if you wish.

Page 34287

 1             JUDGE KWON:  Thank you.

 2             JUDGE AGIUS:  Mr. McCloskey, I have a final question on

 3     reburials, and it's more of a clarification that we require from you than

 4     anything else.

 5             In the indictment, you specifically charge Accused Nikolic,

 6     Pandurevic, and Popovic with -- in relation to reburials, with regard to

 7     reburials.  In your pre-trial brief, and for the record it's para 302

 8     thereof, you seem to add Beara.  And we've, in the course of the

 9     proceedings, heard submissions particularly from Mr. Ostojic on that.

10             In the final brief, paras 1079 and 2282 and 2283, you once more

11     mention Beara as being involved in the reburial operation.

12             Incidentally, you also allege, in your final brief, that the VRS

13     Main Staff coordinated the reburial operation with Miletic's knowledge.

14             My question is:  What is exactly your position as regards

15     reburials, vis-a-vis both Accused Beara and Accused Miletic?  Have they

16     been put sufficiently on notice that ultimately they were going to be

17     brought into this overall picture when they were not as such -- included,

18     as such, in the indictment?

19             MR. McCLOSKEY:  Mr. President, I remember discussing this with

20     Mr. Ostojic, and some evidentiary matters related to it, and I would need

21     a small break to go back and see where we are on that because there may

22     have been some changes or something.  I need to -- let me look into that.

23             General Miletic, we would have -- chief of operations has to know

24     about something like this, and has to be involved in it, and know fully

25     that it's happening.  I mean, that's what that would be about.

Page 34288

 1             And if I can get back to you on Beara and maybe discuss it with

 2     Mr. Ostojic, I think we can sort it out.

 3             JUDGE AGIUS:  Yes, Mr. Ostojic.

 4             MR. OSTOJIC:  Thank you, Mr. President.

 5             I would just direct the Prosecution's attention to the November

 6     8th and 9th transcript where we had a discussion in what I thought was a

 7     ruling from the Court, specifically on the 9th of November, 2006, where

 8     we had that discussion.

 9             JUDGE AGIUS:  That's the reason why we have brought this up,

10     because the subject is returned to in the final brief.

11             So, okay.  Mr. McCloskey, Accused Nikolic and Gvero, in the final

12     briefs respectively, make the point that the protection provided by the

13     Geneva Convention 4 can only be applied to civilians, intimating at the

14     same time that prisoners of war and detainees, whose detention is

15     justified, cannot be considered as victims of forcible transfer or

16     deportation.  I don't recall this point having been touched upon in the

17     course of the various interventions.  Perhaps if you could deal with

18     this.

19             MR. McCLOSKEY:  Yes, Mr. President, I -- that issue, I think, was

20     dealt with in the Vukovar case.  There were some Trial Chamber rulings

21     about those victims, and the holdings that come out of the

22     Appeals Chamber, I think, are important here, and I would have to refer

23     that to my colleagues for a discussion to become updated on that.

24             JUDGE AGIUS:  Okay.  So I take it you will deal with this later.

25             MR. McCLOSKEY:  If -- yes, please.

Page 34289

 1             JUDGE AGIUS:  All right.

 2                           [Trial Chamber confers]

 3             JUDGE AGIUS:  Yes.  While we are at that, Judge Prost is drawing

 4     my attention to another issue that we meant to raise that perhaps you can

 5     include with this one and come back to us at a later stage.  That's the

 6     duty to protect prisoners, particularly within the context of the Mrksic

 7     standard, as contrasted with the Blaskic considerations.

 8             Yes.  Borovcanin argues that the Mrksic standard can only be

 9     described as aiding and abetting by omission, and should not be used as

10     the Prosecution has unmistakenly pleaded, Blaskic liability in respect of

11     the duty to protect prisoners; that is, the intentional omission, direct

12     intent which is intentional.  Perhaps you can deal with this item now or

13     later, but we meant to raise it now as worthy of some feedback from your

14     team.

15             MR. McCLOSKEY:  Yes, Mr. President.  The Borovcanin brief says

16     that we did not charge aiding and abetting for forcible transfer, and

17     when I read it we checked the indictment.  Everything is being charged

18     with aiding and abetting.  It's very clear in the -- in the indictment.

19     I think they're -- they're suggesting that this particular form that

20     we've chosen, Mrksic form, the Geneva Conventions, but the Defence --

21     I think the Defence expert referred to it as the duty to protect, I don't

22     understand why they don't think we've charged aiding and abetting on that

23     as well.  However, I have assigned Mr. Vanderpuye to deal with that

24     issue, and I'm sure he's prepared to deal with it, especially if you give

25     him a moment or two.

Page 34290

 1             JUDGE AGIUS:  Would you prefer to deal with it now or

 2     subsequently?

 3             MR. VANDERPUYE:  Thanks, Mr. President, and good afternoon to

 4     you.

 5             I am prepared to deal with it now to some extent.  The problem is

 6     I'm not entirely clear on what the Defence position is on it.  But to the

 7     extent that I can assist the Trial Chamber with our position, I can

 8     certainly do that.

 9             JUDGE PROST:  What I'm particularly interested in,

10     Mr. Vanderpuye, and I'm sorry, I can see you only on the video screen,

11     is:  Is the Prosecution alleging aiding and abetting by omission, the

12     Mrksic standard?  I'm particularly interested in knowing whether that is

13     an allegation that the Prosecution is pursuing on the facts in relation

14     to Mr. Borovcanin.

15             MR. VANDERPUYE:  Thank you.

16             MR. McCLOSKEY:  I can answer that simply.

17             This indictment was made, you know, obviously before Mrksic, and

18     we intended and wrote "aiding and abetting" on each and every one of the

19     Statutes and forms of liability.  That's the way it was meant to be pled.

20             JUDGE PROST:  And so what you're saying is that would include any

21     aspects of aiding and abetting that have been developed in the law, even

22     if they are developed subsequently?

23             MR. McCLOSKEY:  Absolutely, absolutely, and that -- that's the

24     way it is.

25             JUDGE AGIUS:  For my purposes, at least, it's clear enough.  But

Page 34291

 1     since this was a question that we had agreed to put together, are you

 2     satisfied with this explanation?

 3                           [Trial Chamber confers]

 4             JUDGE AGIUS:  Okay.  Mr. McCloskey or whoever, we have had a

 5     submission from Borovcanin, in his final brief, that as from 9th July

 6     1995, UNPROFOR soldiers are to be considered as combatants for the

 7     purposes of the law.  There are some allegations from others that that

 8     could have been the position even before the 9th of July, but let's stick

 9     to this Borovcanin submission.  What's your position on that?

10             MR. McCLOSKEY:  I'm not sure how fully relevant that is, but as I

11     mentioned in my argument, I don't have a fundamental disagreement with

12     it.  The -- as they mentioned, there was the green order, and on, you

13     know, the days leading up to -- and on the 11th, there was some -- some

14     very minor resistance from DutchBat, and NATO got in the game and dropped

15     some bombs.  So to that degree, UNPROFOR was a potential target,

16     especially if attacking or perceived to be attacking the Serbs.  I have

17     no problem with Vinko Pandurevic going in to a UN OP that's firing on him

18     and taking away their weapons.  I don't have a problem even if they're

19     not firing upon him, if they come into the OP and taking away their

20     weapons so that they don't get shot in the back by a Dutch soldier.  I

21     have no problem with that.

22             Now, as I mentioned, once the hostility is over, and we're at the

23     12th of July, and the Dutch are sitting in their compound and standing

24     around trying to look after the Muslim population and themselves,

25     Mendeljev Djuric and his unit of deserters systematically disarming

Page 34292

 1     van Duijn's people and pointing guns at them and taking away their

 2     ability to protect the Muslims that they're in charge of protecting and

 3     themselves, now, that's another matter.  That is done with the intent to

 4     move forward the joint criminal enterprise to get at the population,

 5     either to separate and kill them or to move them out, and that's the

 6     conduct that I focus on.

 7             The other conduct related to what's going on with the OPs and

 8     NATO, we're not charging anything like that, and I don't -- I don't

 9     see -- it makes good reading, but I don't see how relevant it is, and I

10     don't really object to it.

11             MR. JOSSE:  Your Honours, could my client be excused, please?

12             JUDGE AGIUS:  Pardon?

13             MR. JOSSE:  Could my client be excused, please?

14             JUDGE AGIUS:  Yes, yes, of course.

15             Shall we continue, Mr. Josse, or --

16             MR. JOSSE:  We can continue.

17             JUDGE AGIUS:  Okay, thank you.

18             Judge Prost.

19             JUDGE PROST:  Mr. McCloskey, I want to be very sure that I'm

20     clear on the Prosecution's position on this.  It's obviously a very

21     significant point, and you spoke about it this morning, and it's

22     obviously referenced several times in the brief.  It's the issue of the

23     command of the Zvornik Brigade's involvement, in terms of the

24     participation of various aspects of the Zvornik Brigade in the course of

25     the process with the prisoners and the executions.

Page 34293

 1             Is it the Prosecution's position that first Obrenovic and then

 2     Mr. Pandurevic specifically knew and authorised the participation, for

 3     example, of the various battalions that you made reference to this

 4     morning, or is it your position that more vague -- if I could say, that

 5     it fell within their authority, that there was general

 6     command/authorisation for participation, and then the battalions fell in

 7     line, if you wish, behind that general authority?  Are you alleging

 8     specific knowledge and authorisation for the participation of the various

 9     units, other than the ones on which obviously we have direct evidence on,

10     but the other extensive participation as you described it, Mr. McCloskey?

11             MR. McCLOSKEY:  There's no question in my mind that

12     Vinko Pandurevic and Obrenovic were aware that the command elements of

13     the battalions in the areas where these prisoners were held were

14     involved.  They would have known that, they would have had to have known

15     that.  The particulars of the movements and how it all went, not

16     necessarily.  The actual -- what Sreco Acimovic was doing, perhaps not.

17     But Vinko Pandurevic would have had to know.  He needed the members of

18     Acimovic's unit.  He had to have known that Acimovic was involved in this

19     horrible, massive thing that was taking him away from his duties at the

20     front.  He would have had to have known that Acimovic, personally, and

21     that his units, generally, were engaged in that operation.

22             He had to so he could know how many he could bring to his front,

23     how many he could ask for, what kind of demands he could ask from

24     Acimovic.  The same thing with the 1st Battalion up in Pilica.  You know

25     they -- there's lots in the record about the people in Pilica, because

Page 34294

 1     they were a bit off the combat track.  They were constantly being used to

 2     go other places, and Pandurevic had to know that there was a significant

 3     number of prisoners that were having to be dealt with.  When he says, The

 4     additional burden for us is the obligation of security for the people in

 5     the schools, he knows that the people in the schools are the obligations

 6     of his soldiers to guard.  That's what's happening on the 15th.  Twenty,

 7     thirty soldiers of the 1st Battalion, when he writes that, are guarding

 8     people at the Kula school, and there are people at Rocevic.  The MPs,

 9     we've proven, are at Rocevic on the 15th, and the various units and

10     soldiers of the Rocevic Battalion involved in the killing.  He has to

11     know all of that.

12             This is why he writes this thing on the 15th, because it's a --

13     it's a burden and it's a total irritant to him on what he needs to do,

14     and that's defend his lines and defend Zvornik.  He has to know that.

15     The absolute particulars of an involvement, he never needs to know

16     absolute particulars, but he's the kind of guy that's going to need to

17     know the details, he needs to know what his commanders are doing and that

18     they're getting the job done, and he's going to demand that.  He's at the

19     forward command post, he's fully involved in communication with people,

20     and he will know that his units are involved.  And that is a massive

21     distraction from him and what he really needs to be doing, and he has to

22     know about it.

23             JUDGE PROST:  So then there's a quote or a statement that's

24     attributed.  A couple of times it's mentioned in the Prosecution's brief,

25     attributed to Dragan Jokic, where he says:

Page 34295

 1             "The error of Popovic and Nikolic were doing what they wanted,

 2     taking whomever they wanted, wherever they wanted."

 3             That suggests, of course, the other position, which is that the

 4     security officers were carrying out these activities with the battalions

 5     without the authorisation of the Command.  I take it, then, it's the

 6     Prosecution's position that that's not a correct statement of what was

 7     happening, because I don't think you can have it both ways,

 8     Mr. McCloskey.

 9             MR. McCLOSKEY:  Well, I wish Mr. Jokic would have been more

10     helpful, but from Mr. Jokic's perspective, who is a civilian -- civil

11     engineer at the same time as a career officer, he's a weak character that

12     when Beara comes into his office and starts saying, I need this and I

13     need that, and Popovic is there also, and Drago Nikolic is, and they're

14     all saying, I have orders from my commander, da-da-da-da-da-da, they're

15     not coming in and doing things without the orders of their commander.

16             What I would point you to, as we've done it before, is:  In

17     Zvornik the first thing, you know, Drago Nikolic does is he calls his

18     commander.  Before he can do anything, he calls Dragan Obrenovic and

19     seeks his authority.  Even Beara can't come in.  Beara is armed with

20     Mladic's orders, but even Beara can't come in and say, I have orders from

21     Mladic, give me this.  He couldn't get troops from Blagojevic or Nastic

22     or the others.  He had to call Krstic, General Krstic, please get these

23     guys to give me troops.  The security branch is having to go to the

24     Command in order to get what they need.  They can't do anything on their

25     own.  All the people, and the logistics, and the units that they need to

Page 34296

 1     get this massive job done are under the command of their -- of the

 2     commanders, and the commanders have to be involved in that at that scale.

 3     Yes, a very small scale, a -- Beara could come in and order this and

 4     maybe take a prisoner out and, you know, have him shot, and the commander

 5     could conceivably not know about it, but 5.000 people in the schools in a

 6     process from 13, 14, 15, 16, and 15 and 16 in particular for

 7     General Pandurevic, involving the massive aspects of -- look at our

 8     brief.  I didn't have time to go over it.  From the logistics and the

 9     fuel and the battalions, the amount of energy and resources that went

10     into this, there's no way these three guys could begin to do that.  Momir

11     Nikolic reported to his boss, Drago Nikolic reported to his boss.

12     Popovic, as Mr. Vanderpuye put it, reported to his boss several times,

13     and Beara was getting called by his people, 155, several times during all

14     this and is having to report back, and they're calling him.  These are

15     the command nodes running their security branch.  This is not the

16     security branch running the other way around.  That is the tail wagging

17     the dog, and it's just historically fundamentally impossible on this

18     scale, it can't be done.  They can't come in and just take what they want

19     and do what they want at that scale.  There's only three of them.  They

20     need the military police who are under the command of their commander.

21     They need the units, the drivers, the other folks.

22             JUDGE PROST:  Okay, thank you.  I have your point.  Thanks.

23             JUDGE AGIUS:  Let me see if I could run through these.  I have

24     got some minor question.

25             Miletic final brief, page 9, para 16.  There is a statement there

Page 34297

 1     that General Milovanovic, himself, acknowledges that in the spring of

 2     1995, and in any case from March to late May 1995, he was at Crna Rijeka

 3     with the consequence that, therefore, no one could have stood as Chief of

 4     Staff or as deputy Chief of Staff, et cetera.  Do you accept that part of

 5     the evidence, that Milovanovic was in Crna Rijeka particularly from March

 6     to late May 1995?

 7             MR. McCLOSKEY:  I'd have to check with Mr. Thayer.  I do remember

 8     what should be in evidence is the collection of reports to the Supreme

 9     Command.  I believe we got in a huge collection of those throughout 1995,

10     and some of them showed -- a few of them showed it went out under the

11     name of Milovanovic during periods of 1995, and many others went under

12     Miletic's name.  And we think that's primary evidence of who's around.

13             But there's more to it than that, and Mr. Thayer is familiar with

14     that, and again I think if you give him a little bit of time, he can give

15     you a more prepared answer.

16             JUDGE AGIUS:  Thank you.  The same final brief, pages 85 and 86,

17     paragraph 213, the Miletic Defence team makes the point that the Trial

18     Chamber had taken judicial notice that:

19             "The Bosnian Serbs deliberately tried to limit access to the

20     enclave by international aid convoys by early 1995, and fewer supply

21     convoys were making it through the Srebrenica enclave, and, finally, that

22     blocking aid convoys was part of the plan."

23             This is what we are supposed to have taken judicial notice of.

24     It is then submitted, basically, that the correct wording -- exact

25     wording is that the Defence was, therefore, at a disadvantage, as the

Page 34298

 1     onus was on the Defence to adduce rebuttal evidence, which to me means

 2     that this judicial notice basically led to an inversion or a reversal of

 3     the onus of proof.  Do you wish to comment on that?

 4             MR. McCLOSKEY:  I think it's clear that the adjudicated facts are

 5     something that does form a presumption, but it's a rebuttable presumption

 6     which Ms. Fauveau and General Miletic were fully capable of doing, and it

 7     doesn't -- and they would have done it, of course, anyway, in regard to

 8     our case.  If the Prosecution had stood on that alone, they might have

 9     some kind of a concern, but if we had stood on it alone and they'd

10     rebutted it, it would be over.  So the fact that they have to rebut it,

11     yes, that does shift the traditional burden to some degree, I think.  I

12     may get corrected by that statement, but I think practically it does.

13     But as we know, an adjudicated fact sits there, it's not -- it's not

14     something that you're going to -- when -- if something is hotly

15     contested, I think everyone has faith that you're going to make your

16     judgement on each side's case and not worry about your own adjudicated

17     fact three years ago.

18             JUDGE AGIUS:  Thank you.

19             Page 124, para 286 of the Miletic final brief, it reads as

20     follows:

21             "When an accused is alleged to have participated in a JCE, the

22     nature of his participation must be specified, including the facts from

23     which such an inference may be drawn."

24             And there is a reference to some jurisprudence there.

25             Then the same final brief continues:

Page 34299

 1             "At no point did the Prosecution allege that General Miletic

 2     contributed or participated in the restriction of UNPROFOR logistical

 3     supplies.  This cannot be put down to lack of precision in the

 4     indictment, but to an omission which cannot be remedied by the evidence

 5     presented."

 6             So, basically, this is attacking the integrity of the indictment

 7     as it relates to Miletic.  This is why I'm putting it to you, in case you

 8     wish to make any comments.

 9             MR. McCLOSKEY:  Thank you, Mr. President.

10             That is an issue that Mr. Thayer and I have discussed, and if we

11     could put that on his list, I'd appreciate it.

12             JUDGE AGIUS:  Okay, thank you.

13             MR. McCLOSKEY:  And Mr. Ostojic, I think, is ready to answer the

14     rest of our questions.

15             JUDGE AGIUS:  Leave Mr. Ostojic alone.  Let sleeping dogs lie.

16             MR. OSTOJIC:  Excuse me, Mr. President.

17             I just want to correct the record.  On page 74, lines 19 through

18     22, it mentions that I said "May 8th," but it's actually the 8th and 9th

19     of November 2006, and particularly I found that November 9th, the

20     transcript at page 3876.  Thank you.

21             JUDGE AGIUS:  Thank you.  I think that deals with Miletic.

22             Borovcanin.  I'm reading, because otherwise no one would be able

23     to follow, from paragraph 136:

24             "The combat with the column, which the Prosecution in any event

25     concedes was a lawful military target, was not conducted by the MUP

Page 34300

 1     alone, as claimed by Vasic in his dispatches.  Vasic, for whatever

 2     reason, was apparently exaggerating the situation to his superiors."

 3             And then it continues, and this is the more relevant part:

 4             "Third, not all the MUP forces were under Borovcanin's command.

 5     The 2nd, 5th, 6th Zvornik PJP companies and the 2nd Deserters Unit were

 6     subject to a different chain of command and were not subordinated to

 7     Borovcanin under order 64/95."

 8             Borovcanin takes -- suggests or believes that the Prosecution has

 9     never suggested otherwise.  Is he correct in this; in other words, that

10     you have never suggested that the 2nd, 5th, 6th Zvornik PJP companies and

11     the 2nd Deserters Unit were subject to a different chain of command?

12             MR. McCLOSKEY:  I'm not sure we've dealt with it, Mr. President,

13     because the units that were specifically in the area of Sandici, in

14     Kravica, and located in Potocari, are very clearly defined in the case,

15     and these other units are -- go from more of the Lol ici towards

16     Konjevic Polje area and are coming in at different times, and we haven't

17     dealt with it.  But I can tell you, under the Rules, and under the

18     conditions and knowledge of this case, it's -- it's impossible to think

19     that they're going to be bringing in PJP -- special police or PJP units

20     working alongside Borovcanin units that are under the command of someone

21     else.  It can't work that way, it's not designed to work that way.

22     Borovcanin is an impressive guy.  He can handle these MUP units.  They're

23     not going to give MUP units in the same area as Borovcanin to some army

24     commander or some competing MUP unit.  So though I don't find it super

25     significant, but the position of the Prosecution is very likely he's

Page 34301

 1     under the command -- that he's commanding any of these units, if not more

 2     than likely.  I would say he is.

 3             Now, I need to correct myself on the -- on one answer I gave when

 4     I said I had no objection to the disarming UNPROFOR in the various

 5     operations.  As I'm thinking about that, this is again the problem of the

 6     dual motivation.

 7             When Vinko Pandurevic dismantles UNPROFOR with the purpose to get

 8     at the civilian population, that is a contribution to the crime.  When he

 9     dismantles UNPROFOR because they're firing at him, that's not a problem.

10     When you have both at the same time, it is a problem.  He shouldn't be

11     doing it in the first place because it's a crime to go into a United

12     Nations safe area to drive out the population.  It's a crime to go into

13     anywhere to drive out the population.  And if you take out any force to

14     do it, as a substantial part of making that happen, that's a crime.  It

15     doesn't sound good, we don't like it, but that's the case.  This is a

16     horrible crime.

17             JUDGE KWON:  When he, himself, has a dual motivation?

18             MR. McCLOSKEY:  Yes.  And the higher you get up in the ranks, the

19     clearer it becomes.  The lower the soldier -- the soldier that's being

20     ordered to attack the OP or the lieutenant that's going up there, you

21     know, is one thing, but the people at the top of the food-chain like

22     this, that know from the very get-go the horror that's involved and

23     what's going to happen, it shouldn't be happening, and when they do it,

24     going after UNPROFOR, be it Gvero, be it Pandurevic, Miletic, that, in my

25     view, is a substantial contribution to the JCE.

Page 34302

 1             JUDGE AGIUS:  All right.  I had some other questions which I'm

 2     going to skip because, more or less, they have been even marginally --

 3     although marginally dealt with earlier.

 4             Again, Borovcanin final brief, page 176, paragraph 277, I'm

 5     reading:

 6             "Butler's view was that Vasic had no knowledge of the killing

 7     plan when he wrote a particular passage to which the previous parts of

 8     that paragraph refers, and that he generally believed that those men

 9     would be released as an inducement for the column of the 28th Division to

10     surrender."

11             If -- the question that Borovcanin Defence team put is the

12     following:  If the killing plan was not obvious to Vasic, who had been

13     privy to the two main meetings held by General Mladic, then how could it

14     have been obvious to someone else who had been out in the field and not

15     involved in any of those meetings?

16             MR. McCLOSKEY:  It's probably best to have that report in front

17     of you, but Vasic writes that report based on the 10.00 a.m., 12 July

18     meeting at the Hotel Fontana, where Mladic is saying, you know, to the

19     Muslims, You survive or disappear.  And what Vasic reports shortly

20     thereafter probably -- I don't know, I can't -- he didn't have times on

21     his reports, but it's probably shortly thereafter, a few hours, on the

22     12th of July, is that Mladic -- in his view, Mladic is holding these

23     people as a hostage to try to bring the men out of -- out of the woods.

24     I don't know where he got that from, be it Mladic or not, but, yes, in

25     our view, Vasic at that point has not been told of the plan.  And by that

Page 34303

 1     afternoon, 12.00, you know, 12.00, 1.00, the bussing separations

 2     hasn't -- it's beginning to get going, but it hasn't really got going

 3     yet, and so the real obvious -- what's going to be clear to everyone is

 4     this lack of screening and this horrible abuse and these separations.

 5     This is where those that are not on the inner circle are going to start

 6     to become aware.

 7             Remember, on the 12th of July Tolimir, from -- where is he,

 8     outside of Zepa -- writes a proposal, which is his job, and says

 9     something to the effect, You know, make sure we gets lists of these

10     people so we can get down -- so the war criminals don't get away.  This

11     means Tolimir doesn't know about it.  He's in Zepa.  He has not been

12     told, because you don't get lists, and -- you know, that's what you do

13     for exchange, that's the first thing you do, and that's what Tolimir

14     wants, so that they don't exchange all these people without figuring out

15     who the bad guys are.  That's his job as security officer.  So in the

16     afternoon of the 12th, that's what he's writing.  So Tolimir isn't in on

17     it.

18             There's an intercept.  The same thing.  It's on the 12th or 13th,

19     where someone is saying, Hey, they're getting large numbers of Muslims.

20     We've, you know, got to get in there; otherwise, they're going to get

21     away scot-free.  And the guy at the other end says basically, Don't worry

22     about it.  So somebody on the other end thought that these Muslims that

23     were getting collected in Nova Kasaba were -- were going to be sent away.

24             So the 12th of July, if you're not in on the inner circle, you're

25     not going to know, but when you start separating people and treating them

Page 34304

 1     less than like as you would an animal, then the word spreads.  The

 2     commanders that are doing it have to know what they're doing, because

 3     they have a duty to look after these people, to make these lists, to get

 4     them ready for exchange so they can get their Serb brothers back, and the

 5     commanders, like Borovcanin, that realise, We're not doing that, they're

 6     going to know why.

 7             So the fact that Vasic, in the afternoon of the 12th of July,

 8     doesn't know, it's not until the -- the separations and, you know, he's

 9     being engaged and he's communicating with the MUP in Bratunac, that he's

10     going to be fully aware.  As Miroslav Deronjic, you know, basically said,

11     when he saw that there was no real screening, he knew something was up.

12             So that's the explanation to that particular part.

13             JUDGE AGIUS:  Okay, thank you.

14             And last question for today, and it is strictly legal:  I refer

15     you to para 399 on page 225 of the Borovcanin final brief, and then to

16     paras 411, 412 and 413, which you will find on pages 231 and 232.

17     Basically, in the first of these paragraphs, the Borovcanin Defence team

18     is stating that taking the wording of paragraph 30.4.1 of the indictment,

19     they are understanding that paragraph as properly charging only superior

20     responsibility, and exclude that the paragraph properly charges

21     Borovcanin with having committed the act described in that paragraph,

22     whether directly or by way of JCE.  If his contention is not correct,

23     then he attacks the same paragraph by way of alleging that he was given

24     lack of adequate notice of what he was being charged upon.

25             Similarly, in the paragraphs -- in the other paragraphs that I

Page 34305

 1     mentioned in pages 231 and 232, he is offering a blanket objection to

 2     Counts 3 to 6 and 8, alleging that they are vague, more or less mounting

 3     the same way of reasoning as in the case of the paragraph -- paragraph 34

 4     or 81 that I mentioned before, and suggesting that the indictment, in his

 5     regard, does not charge aiding and abetting, except insofar as the

 6     Kravica warehouse events are concerned; in other words, alleging that

 7     aiding and abetting is not being charged in respect of any of the crimes

 8     committed in Potocari, and that includes the forcible transfer and other

 9     forms of persecution.

10             I consider this allegation as warranting some kind of feedback

11     from you.

12             MR. McCLOSKEY:  Thank you, Mr. President.

13             We will do that.  I can answer it briefly.

14             It's ludicrous.  I looked at his allegations, that we weren't

15     charging aiding and abetting.  We charged aiding and abetting for all

16     forms.  So we'll look into the particulars of that, and -- but I think we

17     need to be careful here.  Unless there's something that they can point

18     out to that occurred at trial, or some other issue, the time for

19     challenging the indictment is long past.  If they're going to challenge

20     the indictment on these grounds, that requires all accused to get up and

21     challenge the indictment on this -- on those grounds.

22             This is one of the clearest, most detailed indictments in this

23     Tribunal, and we've gone through this entire process, and so unless there

24     is some specific connection to the case that he can point to, it's -- the

25     process is disconcerting.  But we will absolutely answer your questions

Page 34306

 1     and be prepared to respond to it.

 2             JUDGE AGIUS:  Okay.  I think we can stop for today.

 3             I did have some more questions, but I think I will take the

 4     opportunity over the weekend to go through them again and see whether

 5     they need to be put or not.

 6             In any case, on Monday we will start with you, Mr. Zivanovic.

 7     We'll start with you after, of course, we've heard the final response

 8     from the Prosecution for the questions that we have postponed.

 9             Thank you, and have a nice weekend.

10                           --- Whereupon the hearing adjourned at 1.40 p.m.,

11                           to be reconvened on Monday, the 7th day of

12                           September, 2009, at 9.00 a.m.