Tribunal Criminal Tribunal for the Former Yugoslavia

Page 34489

 1                           Wednesday, 9 September 2009

 2                           [Open session]

 3                           [The accused entered court]

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

 5             JUDGE AGIUS:  Good morning.

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

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

 8     everyone in and around the courtroom.

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

10     et al.  Thank you.

11             JUDGE AGIUS:  Thank you.

12             All the accused are here and the presentation is exactly as it

13     was yesterday, except for some legal assistants.

14             Mr. Bourgon, good morning to you.

15             MR. BOURGON:  Good morning, Mr. President.  Good morning, Judges.

16     Good morning to all my colleagues in the courtroom.

17             On the screen before you, if you flick -- if you press the button

18     for e-court, you see "The Boring Figure" which I was referring to

19     yesterday.  Surprisingly, when she failed to appear on the screen

20     yesterday because I forgot to ask the Registrar to press on the e-court

21     button, nobody reacted, so I take it that everyone was concentrating too

22     much on what I had to say.

23             In any event, what I said yesterday, Mr. President, is that

24     whether you see the old lady with the sad look and her chin in the lower

25     part of the picture or whether you see the young lady with her fur coat

Page 34490

 1     and looking to the rear, what does matter is that if you put your mind to

 2     it, you will see the second lady in this picture and she will reveal

 3     herself to you.  Well, the same goes for the Prosecution's case.  If you

 4     put your mind to it, and I'm sure you will, and you disregard all of the

 5     unreliable evidence which cannot be attributed any probative value, it

 6     will become clear to you that the Prosecution failed to prove its case

 7     against Drago Nikolic.

 8             That being said, Mr. President, it has become clear to me, based

 9     on the number of pages I covered yesterday in 50 minutes, that I will

10     simply not be able to cover all the material my team and I had prepared,

11     so I have no choice but to skip many topics, and I'll try to focus solely

12     on what is indispensable.

13             These are the topics I will cover today, and they appear on the

14     screen before you.  My colleague will then conclude our closing arguments

15     by addressing the Trial Chamber in respect of character evidence and

16     sentencing considerations.

17             If I can move into private session, Mr. President, please.

18             JUDGE AGIUS:  Let's move into private session, please.

19                           [Private session]

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 34491











11 Pages 34491-34496 redacted. Private session.















Page 34497

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 6   (redacted)

 7   (redacted)

 8   (redacted)

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10   (redacted)

11   (redacted)

12   (redacted)

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15   (redacted)

16                           [Open session]

17             JUDGE AGIUS:  Thank you, Mr. Bourgon.  We are in open session.

18             MR. BOURGON:  Thank you, Mr. President.

19             Next on my list is Momir Nikolic.  I refer the Trial Chamber to

20     paragraphs 589 to 646 in the Nikolic final trial brief.

21             Our submission concerning Momir Nikolic is that no probative

22     value can be attributed to his testimony that he visited the Zvornik

23     Brigade Command and the Zvornik Brigade IKM in the evening of 13 July

24     1995.  Despite the fact that Momir Nikolic has become another

25     professional witness who knows his narrative by heart and who has been

Page 34498

 1     repeating it in many trials, when testifying before this courtroom,

 2     before this Trial Chamber, he made at least two obvious factual mistakes.

 3     He stated that when he arrived at the Zvornik Brigade on 13 July, in the

 4     evening, he parked his car outside, he came in by foot.  He identified

 5     himself as Momir Nikolic.  He said he wanted to see Drago Nikolic, and he

 6     said he was a security organ of the Bratunac Brigade.

 7             All of this, Mr. President, are not -- is not something which

 8     Witness Jeremic could miss.  Jeremic actually confirmed in his statement,

 9     that is 3D587, that it simply did not take place.  Significantly, the

10     Prosecution did not challenge the statement which was admitted pursuant

11     to Rule 92 bis.

12             Another significant mistake made by Momir Nikolic is that when he

13     testified that he did not go in the IKM when he allegedly spoke to

14     Drago Nikolic or as he testified to the contrary in the Blagojevic trial,

15     transcript 33251/33525.  Again, this is something he could not forget.

16     It is evident that Momir Nikolic was but attempting to shape his

17     testimony to avoid answering questions that he would not be able to

18     answer concerning the Zvornik Brigade IKM because he never went there.

19             Next slide, please.

20             Such mistakes, considered along with our detailed arguments,

21     demonstrate that his testimony regarding this alleged visit cannot be

22     attributed any weight.

23             That being said, Mr. President, there are parts of his testimony

24     which must be attributed some weight.  One such issue is the following:

25     Momir Nikolic testified about the chaos and the improvisation in Bratunac

Page 34499

 1     on the night of 13 July, when orders and counter-orders were being issued

 2     by the minute concerning the prisoners; transcript 33233/33234.  This is

 3     significant, as it illustrates the lack of any existing plan as to what

 4     was going to happen to the prisoners at least up to that point.

 5             Next slide, please.

 6             Next on my list is Vinko Pandurevic; Nikolic final trial brief

 7     956 to 1015.

 8             As a preliminary matter, I wish to state for the record that our

 9     submissions are not related in any way to the alleged responsibility of

10     Vinko Pandurevic for the events of July 1995.  This is way beyond our

11     purpose.  However, insofar as we are convinced that Vinko Pandurevic did

12     not tell the truth when he testified before this Trial Chamber, and that

13     this testimony directly affected the situation of our client in this

14     case, then this cannot be ignored.

15             It is our position that the evidence he provided concerning his

16     alleged meeting with Dragan Obrenovic on 16 July at the IKM, during which

17     Obrenovic would have informed him for the first time about the presence

18     of prison ers in the area of Zvornik, and his knowledge of their fate,

19     cannot be attributed any probative value.  The evidence reveals that

20     Pandurevic was informed of the details of the prisoner situation by

21     Obrenovic, whether at the Zvornik Brigade Command or at the IKM, or in

22     both places, as of 15 July 1995.  What is most important is that

23     Pandurevic was informed of this situation before 16 July.

24             When Pandurevic was informed by Obrenovic of the details of the

25     prisoner situation, it is our submission, Mr. President, that Obrenovic

Page 34500

 1     did not tell him that he obtained this information from Drago Nikolic.

 2     Had Pandurevic been informed that Obrenovic obtained this information

 3     from Drago Nikolic, he would necessarily have engaged Nikolic on this

 4     matter, exactly as he testified, that he would have expected Obrenovic to

 5     confirm the order he was allegedly informed of by Drago Nikolic.  Quite

 6     to the contrary, Pandurevic confirmed that he did not speak to

 7     Drago Nikolic on 15 July; transcript 31513.

 8             More importantly, when Pandurevic reacted to the detailed

 9     information he received from Obrenovic on 15 July - that's when he sent

10     his interim combat report - he did not involve Drago Nikolic, who was the

11     Zvornik Brigade duty officer, in any way; transcript 31585/31586.

12     Pandurevic would have contacted Drago Nikolic if he had been involved in

13     the way Obrenovic suggested.  This confirms that Drago Nikolic was no

14     more than a minor player in these events.

15             Lastly, we also fully agree with the Prosecution's submission

16     that the theory put forward by Pandurevic, that he did not exercise

17     effective control over all elements of the Zvornik Brigade when returning

18     to Zvornik on 15 July, makes no sense.  The evidence speaks for itself in

19     this -- on this issue.

20             A quick word must be said also about Pandurevic, who made it very

21     clear how much he disliked the security branch, in general, as well as

22     Drago Nikolic, in particular.  Why?  Because of the information that

23     Drago Nikolic would have reported about him.  The fact of the matter is,

24     Mr. President, that this apparent conflict, if I may use this word,

25     between Pandurevic and Drago Nikolic is unrelated to the events of

Page 34501

 1     July 1995.

 2             Next slide, please.

 3             Next on my list is PW-101.  For the reasons set out in our brief,

 4     paragraphs 845 to 891, it is our submission that the evidence provided by

 5     this witness cannot be attached any weight.

 6             The evidence reveals that PW-101 did go to Orahovac in the

 7     evening of 14 July, but he was never ordered by Sreten Milosevic to take

 8     food to the execution site, and he never went there.  In light of the

 9     detailed submissions provided by my colleague Zivanovic on Monday -

10     transcript 34372/34377 - there's no need for me to add anything else

11     concerning this witness.  PW-101 clearly had a reason to provide such

12     information to the Prosecution, and his testimony must be disregarded

13     entirely.

14             Next, Sreco Acimovic.  For all the reasons set out in our final

15     trial briefs, paragraphs 892 to 955, it is our submission that the entire

16     testimony of this witness cannot be given any weight whatsoever.  My

17     colleague stated, and I quote -- that is, the Prosecution, that:

18             "Acimovic is guilty and that he was in this up to his eyeballs."

19             Transcript 34254.  On this basis alone, his testimony should be

20     set aside entirely.

21             Time being of the essence, I move to the next witness.

22             Wits PW-102 and PW-108, I refer the Trial Chamber to

23     paragraphs 699 to 844 of the Nikolic final trial brief.  It is our

24     submission that the evidence provided by these two witnesses cannot be

25     attached any probative value.  Significantly, the Prosecution brief

Page 34502

 1     speaks for itself concerning the weight to be given to this evidence,

 2     four paragraphs, 2730 to 2733.  In fact, it really appears as though the

 3     Prosecution decided to rely on the evidence of these two witnesses,

 4     knowing that it was not worthy of belief, with the aim of keeping the

 5     Defence team of Drago Nikolic busy.  Well, that strategy worked.  I can

 6     tell you that, Mr. President.  Anything to salvage the testimony of

 7     PW-168.

 8             In the end, however, on the basis of our detailed arguments,

 9     there can be no doubt that the alleged visit of these witnesses to the

10     Zvornik Command on the 14th of July never took place.  I know that the

11     Prosecution concurs that this visit could only have taken place on 14

12     July, which is one of the reasons why it simply cannot have taken place.

13             I also take this opportunity to underscore the link between the

14     narrative of Witness PW-168 and the evidence provided by PW-102 and

15     PW-108.  We take the view that this is yet another indication of the lack

16     of credibility of Witness PW-168.

17             Lastly, I turn to Mihajlo Galic.  In the Nikolic final trial

18     brief, paragraphs 647 to 698, it is our submission that no weight can be

19     attributed to his testimony that he replaced Drago Nikolic at the IKM in

20     the evening of 13 July.  This -- in its final trial brief, the

21     Prosecution challenged the credibility of Witness Dragan Stojkic, as well

22     as the Defence assertion that the IKM operation duty officer log-book was

23     tampered with.  As for Witness Stojkic, his testimony regarding the time

24     he spent with Tactical Group 1 and his return to the Zvornik Brigade is

25     plausible and can be reconciled with the testimony of Jevdjevic and

Page 34503

 1     Dragutinovic, whom the Prosecution does not believe [indiscernible].

 2     Stojkic may have been mistaken concerning the location where he spent the

 3     nights of 11 and 12 July, after Tactical Group 1 had entered Srebrenica,

 4     but there is no evidence contradicting his testimony that he was with the

 5     tank company that returned to Zvornik on 13 July.

 6             Using the standard which the Prosecution would like you to use in

 7     rejecting the testimony of Stojkic, this would result in the testimony of

 8     most witnesses in this case being rejected.

 9             Turning to the IKM log-book, the Prosecution fails to understand

10     our arguments set out at paragraphs 680 to 697 of our final trial brief.

11     Simply put, Mr. President, our submission is that the reason why the IKM

12     duty officer log-book is, indeed, perfect regarding the number of pages

13     in the book, regarding the numbering of the pages, regarding the stamp at

14     the end with Obrenovic's signature on it certifying the number of pages,

15     is precisely because it was tampered with.

16             The IKM log-book is the only one of its category which was not

17     transferred to the 5th Corps along with the Zvornik Brigade archives

18     before the Prosecution conducting its search of those premises.  This is

19     not a coincidence.  Obrenovic kept this book because it was part of his

20     defence, and he wanted the Prosecution to have it.

21             One last observation needs to be made in this regard, which is

22     simply that if you look at this book, and if you look at the other

23     entries made by Drago Nikolic in other books, it is simply not possible

24     that the IKM -- that when Drago Nikolic was at the IKM on 13 July, which

25     is undisputed, that he made no entry whatsoever in this book.  Where did

Page 34504

 1     these entries go?  Answering the question -- asking the question is

 2     providing the answer.

 3             Before moving on to my next topic, I take this opportunity to

 4     quickly address the evidence of Witnesses PW-143, Lazar Ristic, and

 5     I think it's 3D1, but it's a witness who testified in closed session.

 6             Regarding PW-143, we did not make any submission concerning his

 7     credibility in the Nikolic final trial brief.  To put it simply, his

 8     testimony was so equivocal concerning the presence of Drago Nikolic at

 9     the Zvornik Brigade Command and at the school in Orahovac on the evening

10     of 13 of July that it simply cannot be attributed any weight.

11             I take this opportunity to add that it is our respectful

12     submission that the questions put to him in redirect examination were

13     impermissible.  I refer you to Archbold, 2006, page 394.

14             Moving on to Prosecution Lazar Ristic, the Prosecution suddenly

15     argues something which my colleague repeated during his oral argument -

16     transcript 34254 - that he was a major player along with members of his

17     battalion, the 4th Battalion, and the executions which took place in

18     Orahovac.  This is not what the evidence reveals.  This was never

19     suggested during the testimony of Lazar Ristic before this Trial Chamber.

20             I note in this regard that when he testified, the Prosecution did

21     not even request that Lazar Ristic be given a Rule 90 Echo warning.  The

22     only reason for the Prosecution's unfair and inappropriate submission is

23     that the evidence of Lazar Ristic establishes clearly that information

24     provided to him by Witness PW-168 is a complete fabrication.

25             If we can go in private session, Mr. President, please.

Page 34505

 1             JUDGE AGIUS:  Let's go into private session, please, for a short

 2     while.

 3                           [Private session]

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14                           [Open session]

15             JUDGE AGIUS:  We are in open session.

16             MR. BOURGON:  I immediately move on to my next topic, which is

17     the missing evidence in this record.

18             My colleague Ostojic has underscored the fact that the

19     Prosecution refrained from calling many witnesses whose testimony was

20     critical in order to fully establish what really happened in July 1995.

21     I join his submission, and I draw the Trial Chamber's attention to the

22     following witnesses who should have been called by the Prosecution:  In

23     particular, we respectfully submit, considering that the Trial Chamber

24     met with Jasikovac, the commander of the Military Police Company, that it

25     is unacceptable that he was not called by the Prosecution.  Even though

Page 34506

 1     Jasikovac refused to meet with the Defence, we are convinced that his

 2     testimony could have allowed to confirm that Obrenovic is the one who

 3     personally received the information concerning the impending arrival of

 4     prisoners in the area of Zvornik; that Drago Nikolic was not contacted

 5     regarding this, and that Obrenovic is the one who issued the orders to

 6     Jasikovac to deploy to Orahovac with some members of the Military Police

 7     Company, members who, by the way, were not "hors de combat" or unfit for

 8     combat.

 9             MR. McCLOSKEY:  Excuse me.  I'm sorry to interrupt, but I

10     don't -- the suggestion that the Trial Chamber met with Jasikovac, I'm

11     not sure that's what you mean to say, and that, I'm not sure, should be

12     in the record, line 16.

13             MR. BOURGON:  I thank my colleague for this.  I was talking about

14     the Prosecution who met with Jasikovac.  There was never any way that the

15     Trial Chamber would be with Jasikovac.

16             JUDGE AGIUS:  Thank you, both of you.  Thank you, particularly

17     Mr. McCloskey.

18             MR. BOURGON:  As for Dragomir Vasic, he could have confirmed that

19     Obrenovic never met with Jokic at Standard on the morning of 15 July.  He

20     could also have confirmed that Momir Nikolic was not privy to the alleged

21     conversation between Deronjic and Beara on the night of 13 July.

22             Lastly, considering that the Prosecution has withdrawn Witnesses

23     Salapura and Golic from its Rule 65 ter list of witnesses, it is our

24     submission that it cannot rely on entries in the Zvornik Brigade

25     operations duty officer notebook involving Salapura and Golic to infer

Page 34507

 1     that Drago Nikolic worked closely with Beara and Popovic during the

 2     period from 13 to 16 July.  This is not what the evidence reveals.  After

 3     14 July, Drago Nikolic clearly kept away from everything that was

 4     happening.  Clearly, the Prosecution has never been interested in

 5     establishing the true involvement of Drago Nikolic if these events.

 6             I move to my next topic, the first joint criminal enterprise

 7     alleged by the Prosecution, forcible transfer.  There are two preliminary

 8     issues I must deal with; namely, the victims who were supposedly forced

 9     out of the Srebrenica and Zepa enclaves and the Prosecution's burden of

10     proof pursuant to the JCE mode of liability.

11             Regarding the victims of forcible transfer, this is an issue that

12     arose during the presentation of arguments pursuant to Rule 98 bis.  The

13     Trial Chamber decided at that time that this was an issue best left to be

14     determined at the final stage of the trial.  Our position, set out in

15     detail in the Nikolic final trial brief, is the following:  The men who

16     were separated from the crowd in Potocari, who were detained and

17     transported to Bratunac, and the men who voluntarily left the Srebrenica

18     enclave, only to be later captured as part of the column heading towards

19     Tuzla, and they were then transported to Bratunac, both of these

20     categories of men were not victims of forcible transfer.

21             The Prosecution argues that these men were part of the Muslim

22     population and that they were the victims of forcible transfer because

23     they were lawfully present in Srebrenica.  The Prosecution also suggests

24     that these men did not exercise a genuine choice to leave the enclave and

25     that they did so in order to escape the VRS attack on the enclave.  That

Page 34508

 1     is paragraph 2897 of the Prosecution's brief.  The Prosecution's

 2     arguments are erroneous, both in law and in fact.

 3             Without repeating all of our arguments:  Firstly, what the

 4     Prosecution omits to consider is that in addition to the legal status of

 5     the men, an issue which we argue in our brief, what matters is what the

 6     alleged perpetrators intended to do with these men and the manner in

 7     which they were treated.

 8             Looking at the men who were separated from the women, children,

 9     and elderly in Potocari, it is evident that they were separated because

10     the VRS intended to do something different with them that they did that

11     they were not doing with the women, children, and elderly.  The aim may

12     have been or may not have been to forcibly transfer the women, children,

13     and elderly.  Not so for the men, however.  If, as the Prosecution

14     alleges, the decision to kill these men had already been taken, which is

15     a conclusion we dispute, of course, then it was not forcible transfer.

16     The crime envisaged was murder.  On the other hand, if the decision had

17     not been taken to kill these men, which is the conclusion we say the

18     evidence supports, again detaining men who allegedly participated in

19     hostilities, to screen them, and to treat them as prisoners, with a view

20     to using them for a future exchange, is not forcible transfer.

21             The Prosecution argues that the VRS did not view them as

22     prisoners because they were not distinguishable as soldiers;

23     paragraph 2907 of their brief.  It is necessary to recall, as I did

24     yesterday, that this was a non-international armed conflict, that these

25     were men of fighting age, and that they were detained because of their

Page 34509

 1     suspected participation in hostilities against the VRS.

 2             The Prosecution also says that these men were denied food and

 3     water and that some were beaten, which implies that the VRS did not view

 4     them as prisoners.  Of course, depriving prisoners of food and water and

 5     mistreating them, if that was established, is a violation of

 6     International Humanitarian Law, but it does not change the fact that

 7     these men were detained and were in the hands of the VRS at the time

 8     until it could be decided what to do with them.  That is not forcible

 9     transfer.  The fact that they were prisoners in the hands of the VRS

10     allowed the VRS to transport them legitimately as prisoners to detention

11     facilities, again which is not forcible transfer.

12             What about the men who left for the column?  Well, the most

13     important consideration here is the fact that they left Srebrenica

14     voluntarily.  The evidence reveals that this was an organised withdrawal,

15     the aim of which was for the members of the 28th Division and other men

16     of fighting age to reach Tuzla, where they could assist the 2nd Corps of

17     the ABiH in future combat operations.  Contrary to the Prosecution's

18     argument, these men were not forced to leave the Srebrenica enclave.  The

19     VRS had not even reached Srebrenica when the column started on its way to

20     Tuzla.

21             Pandurevic explained during his testimony that the 28th Division

22     was retreating faster than he was advancing with Tactical Group 1.  They

23     weren't retreating.  They were on their way to Tuzla already.  Moreover,

24     these men had the option at that time to surrender.  The reference for

25     Pandurevic here was 30867/30868.  These men had the option to surrender.

Page 34510

 1     There was not -- there was at that time no prospects that they would be

 2     the object of criminal acts if they surrendered.

 3             Moreover, once the VRS realised that these men had left

 4     Srebrenica and that they were on their way to Tuzla, their immediate

 5     reaction was to intercept these men and to prevent them from reaching

 6     Tuzla, which shows that the VRS did not have forcible transfer in mind.

 7     If forcible transfer is what the VRS had in mind, they would have simply

 8     let the men reach Tuzla.

 9             Furthermore, once these men were captured along the road leading

10     towards Konjevic Polje, the same reasoning applies as for the men who

11     were separated in Potocari.  If it was already decided to kill them,

12     then -- which is not supported by the evidence, in our view, then it was

13     not forcible transfer; it was murder.  If the decision had not been made

14     to kill these men, which is what we say the evidence supports, again

15     detaining men who allegedly participated in hostilities and who are

16     attempting to link up with their own forces, and transporting them to

17     Bratunac and ultimately to Zvornik, is not forcible transfer.

18             Consequently, it is evident, on the basis of the evidence on the

19     record, that the men who were captured when travelling with the column,

20     and the men who were separated, were not forcibly transferred out of

21     Srebrenica.

22             What about the men from Zepa?  Time being of the essence, I will

23     not address this issue, although I'd be glad to answer any questions in

24     this -- on this topic.

25             It follows, Mr. President, that the men who were separated in

Page 34511

 1     Potocari and the men who were -- who left Srebrenica with the column,

 2     were not forcibly transferred.

 3             JUDGE AGIUS:  Sorry to interrupt you, but perhaps while you are

 4     still on forcible transfer, you could address the question of when this

 5     crime is consummated, is executed; is completed, in other words.  In

 6     other words, whether arrival at a particular destination is required or

 7     whether it is completed at the same time that the persons are forcibly

 8     removed from where is their habitual residence.

 9             MR. BOURGON:  Thank you, Mr. President.

10             The moment that the VRS detained the men who were separated from

11     the crowd in Potocari, the crime which started then, if there was a

12     crime, is detention or murder, or no crime at all, and it was not

13     forcible transfer.  As for the men from the column, the moment they left

14     Srebrenica voluntarily, there was no forcible transfer.

15             JUDGE AGIUS:  Thank you.

16             MR. BOURGON:  Thank you, Mr. President.

17             As will be argued later, even if the Trial Chamber would hold

18     that these men were victims of forcible transfer, then there can be no

19     doubt that the result would be the same for Drago Nikolic.

20             Moving on to the second preliminary issue, the following are the

21     essential elements of a JCE as a mode of liability.  This is what the

22     Prosecution must prove:  First of all, of course, the mens rea, and that

23     is on the screen before you; the intent to achieve a common purpose.  The

24     Prosecution must prove the applicable mens rea -- must determine the

25     applicable mens rea for each of the crimes, the common purpose involved.

Page 34512

 1     This includes proof of any specific mental element required, such as the

 2     "Chapeau" requirement for crimes against humanity.  The Prosecution must

 3     establish also that the components of the mens rea -- sorry, that the

 4     mens rea for each of the crimes has been established.  If the Prosecution

 5     fails to prove any of these elements, then the accused is not a member of

 6     the joint criminal enterprise, in which case the criminal responsibility

 7     of the accused must be assessed pursuant to other modes of liability

 8     under Article 7(1) of the Statute.

 9             This is what we argue in the case of both JCEs for Drago Nikolic.

10     Drago Nikolic did not have the required mens rea, which implies that he

11     was not a member of the alleged -- of the two alleged JCEs.  At his

12     level, he never got the information about the two JCEs, and he was never

13     a member.  That is why his responsibility must be assessed pursuant to

14     other modes of liability included in Article 7(1) of the Statute.

15             Second, of course, the Prosecution must prove the actus reus

16     which requires proof beyond a reasonable doubt that the accused

17     significantly contributed to the accomplishment of the common purpose.

18             Taking a closer look at the mens rea requirement for JCE, these

19     are the steps on the screen before you which must be followed in order to

20     determine whether the Prosecution has met its burden of prove.  First, a

21     common purpose must be identified precisely.  Then it must be proved that

22     the accused knew the common purpose.  Third, it must be established

23     beyond a reasonable doubt that the accused intended to further the common

24     purpose.  The mens rea for each crime must be identified, and it must be

25     proved beyond a reasonable doubt that the accused had the required

Page 34513

 1     mens rea for each of these crimes.

 2             The Prosecution uses the JCE mode of liability against

 3     Drago Nikolic.  It's very clearly why -- very clear why.  He's only in

 4     Orahovac, but he's guilty for everything because by significantly

 5     contributing to one of the execution sites, then he can be found guilty

 6     of all of them, but the Prosecution omits to consider that for this to

 7     happen, he must be a member of the JCE.  And being a member of the JCE

 8     imposes on the Prosecution a very high threshold of proving beyond a

 9     reasonable doubt that Drago Nikolic had this mens rea, that he was in the

10     planning, in the creation of this JCE.  And in order for him to accept

11     the JCE later on down the line, he must still know what the JCE is.  He

12     must intend to further that common purpose.  Drago Nikolic never had this

13     intention, never had this detailed knowledge.

14             As argued in the Nikolic final trial brief, the common purpose of

15     the JCE alleged by the Prosecution, the first JCE, chronologically, is

16     the following:  To force the Muslim population out of the Srebrenica and

17     Zepa enclaves to areas outside the control of the RS from about 8 March

18     to the end of August 1995; paragraph 49 of the indictment.  The word

19     "and" which is underlined, is important.  The JCE alleged by the

20     Prosecution includes both Srebrenica and Zepa.

21             Even though the Trial Chamber previously held that whether there

22     was one or two JCEs related to the forcible transfer of the Muslim

23     population from Srebrenica and Zepa, the Trial Chamber said that this was

24     a matter for evidence at trial.  We respectfully submit at this stage it

25     is not open, Mr. President, to the Trial Chamber to modify the common

Page 34514

 1     purpose of the JCE as alleged by the Prosecution in the indictment.  In

 2     any event, even if the Trial Chamber was to split Zepa and Srebrenica, in

 3     terms of making two JCEs, the result would be the same.

 4             Moving on, Mr. President, we respectfully submit that the

 5     Prosecution's allegation that the Muslim population was to be forced out

 6     to areas outside the control of the VRS must also be proved.  The

 7     Prosecution claimed that this is not an element of the crime.  That's

 8     irrelevant.  Of course it's an element of the crime.  But as the

 9     Prosecution concedes, it's an element which defines the common purpose of

10     the alleged joint criminal enterprise.  And if it defines the common

11     purpose, then, of course, the accused must be aware of the common purpose

12     and he must intend to further the common purpose, which includes the

13     transfer to areas outside the control of the RS.  It is our submission

14     that Drago Nikolic was not aware of the common purpose of this alleged

15     JCE and that he never intended to further the common purpose.

16             Well, let's take a look at Srebrenica enclave.  Clearly,

17     Mr. President, the evidence reveals that Drago Nikolic was never informed

18     of the common purpose to force out the Muslim population composed of the

19     women, children, and elderly who went from Srebrenica to Potocari, from

20     the Srebrenica enclave to areas outside the control of the RS.  This was

21     argued in our brief at paragraphs 1027 to 1043.

22             Significantly, the Prosecution agrees with this submission at

23     least for two reasons.  First, they do not counter our submission that

24     Drago Nikolic was never informed of the common purpose to force out the

25     Muslim women, children, and elderly.  Second, looking at paragraphs 2785

Page 34515

 1     to 2787, the Prosecution refers specifically to the knowledge of

 2     Drago Nikolic concerning the prisoners or the men from Bratunac, never is

 3     anything mentioned about the women, children, and elderly in Potocari.

 4     Accordingly, if we are right in saying that only the Muslim women,

 5     children, and elderly were forcibly transferred, then the only conclusion

 6     is that Drago Nikolic did not have knowledge of this common purpose to

 7     force them out of the Srebrenica enclave.

 8             Due to time constraints, I will not address the Zepa enclave,

 9     which is addressed in our brief.

10             Let me recall -- the only conclusion, then, Mr. President, is

11     that the required mens rea to be a member of the JCE has not been proved

12     beyond reasonable doubt.  Therefore, Drago Nikolic was not a member of

13     that JCE.  As mentioned earlier, this is of the utmost importance in

14     considering the criminal responsibility of Drago Nikolic in relation to

15     all the events which took place in the Srebrenica area in July 1995 and

16     the related allegations in the indictment.

17             Obviously, if Drago Nikolic was not a member of the JCE to

18     forcibly transfer the Muslim population, this establishes a clear

19     difference between Drago Nikolic and any person found to be a member of

20     this JCE.

21             Moving on, Mr. President, because we say he's not a member, it's

22     not necessary to address the mens rea applicable to the crimes included

23     in the JCE, but I would be glad to answer any questions on this issue.

24     It's not necessary, either, to address whether he significantly

25     contributed to this JCE, but I will not address this issue, either, but I

Page 34516

 1     will be glad to answer any questions.

 2             There is no -- the only possible conclusion, because he was not a

 3     member, and that there is no evidence and the Prosecution has proved --

 4     has failed to prove, sorry, that Drago Nikolic incurs responsibility

 5     pursuant to either the JCE mode of liability or other modes of liability

 6     included under Article 7(1) of the Statute.  He was not involved in any

 7     way in forcing the out the Muslim population from the Srebrenica and Zepa

 8     enclaves to areas outside the control of the RS.

 9             Now, the question is:  What if the Trial Chamber rules that the

10     men from Bratunac, in respect of the Srebrenica enclave, and the

11     military-abled population in relation to the Zepa enclave, if the Trial

12     Chamber rules that they are included in the persons who were forcibly

13     transferred and deported, it is our submission that the result is the

14     same.

15             There is no evidence that if and when Drago Nikolic was informed

16     of the arrival of prisoners in the area of Zvornik, he knew that these

17     men were anything but prisoners.  In any event, he did not know that

18     these men -- how these men ended up in Bratunac.  He did not have

19     information about the separation of men in Potocari.  He did not have

20     information about men captured from the column.  He did not have

21     information how the men captured from the column were taken to Bratunac.

22     The evidence reveals that what he knew, after allegedly meeting with

23     Beara and Popovic on 14 July, is that he was tasked with accommodating

24     some people coming for exchange purposes, something he was not previously

25     informed of, and there were no mention of killings.

Page 34517

 1             When the question was put to my colleague whether he could point

 2     to any evidence that Drago Nikolic was informed that the prisoners who

 3     arrived in the Zvornik area had been forced out of the Srebrenica

 4     enclave, he was not able to identify any relevant evidence on the record;

 5     transcript 34264/34268.

 6             As also argued in our brief and as I said earlier, Mr. President,

 7     in response to your question, the crime of responsible transfer was over

 8     by the time these persons arrived in the Zvornik area.  Also, with

 9     respect to the actus reus, it simply cannot be said that by directing the

10     buses carrying these prisoners from the Hotel Vidikovac to one or more of

11     the schools in Zvornik significantly contributed to forcing out these men

12     out of the Srebrenica enclave to areas outside the control of the RS.  It

13     is also significant that these men were never transferred to areas

14     outside the control of the RS which, as mentioned earlier, is an

15     allegation which the Prosecution had to prove.

16             As for the military men from the Zepa enclave, there is no

17     evidence that Drago Nikolic was aware of the alleged crimes occurring in

18     Zepa at the time, let alone that he ever intended to forcibly transfer

19     these men to areas outside the control of the RS or to deport these men

20     across a national border.

21             For all of these reasons, Mr. President, Drago Nikolic must be

22     acquitted of Counts 7 and 8.

23             I move to the second JCE alleged by the Prosecution, starting

24     once again with the identification of the precise common purpose.

25             As argued in our final trial brief, the purpose of the JCE

Page 34518

 1     alleged by the Prosecution is the following:  To kill all the able-bodied

 2     men -- Muslim men, sorry, from Srebrenica.  The Prosecution did not

 3     dispute this submission during its oral arguments.  What is significant

 4     here, Mr. President, is the word "all."  The Prosecution cannot argue

 5     that the indictment means or implies a different common purpose.

 6             As argued at length in our brief, paragraphs 1149 to 1204, the

 7     evidence reveals that Drago Nikolic never knew of, nor that he was ever

 8     informed, about the common plan, design, or purpose to murder all the

 9     Muslim men or the able-bodied Muslim men from Srebrenica.  The evidence

10     adduced by the Prosecution fails to prove otherwise.

11             I draw your attention to paragraph 1160 of our final trial brief.

12     Even if the statement of facts provided by Obrenovic and/or Momir Nikolic

13     were given any weight, contrary to our submissions, Dijan [phoen] would

14     have learned, worst-case scenario, of a crime about to be committed

15     against a large number of prisoners about to be transported to the area

16     of Zvornik.  Drago Nikolic did not know, and it is not possible to infer

17     that he knew how many prisoners were to be transported to Zvornik, nor

18     that he knew how these men ended up to Bratunac.

19             Moreover, considering that Drago Nikolic was the duty officer at

20     the IKM until 14 July, in the morning, it may possibly be inferred that

21     he knew that a significant component of the 28th Division had already

22     entered the area of Zvornik.  Hence, when he was informed that prisoners

23     were arriving or --

24             THE INTERPRETER:  Could counsel slow down, please.

25             MR. BOURGON:  I apologise.

Page 34519

 1             JUDGE AGIUS:  Okay, thank you.

 2             MR. BOURGON:  When he was informed about the prisoners about to

 3     arrive in the Zvornik area, there is no way that he could assume that

 4     these prisoners represented all the men from Srebrenica.  A large

 5     component were fighting in his own territory.

 6             It is our submission, Mr. President, that there is no evidence

 7     and that it cannot be inferred that Drago Nikolic was informed of the

 8     alleged common purpose to kill all the able-bodied men during the alleged

 9     meeting of 14 July when he supposedly met with Ljubisa Beara and

10     Vujadin Popovic.  There is no evidence that he was aware of the common

11     purpose to kill all of the able-bodied men before attending this meeting.

12             Secondly, the evidence provided by Bircakovic about his

13     conversation with Drago Nikolic as he was coming out of this alleged

14     meeting is credible and must be accorded full weight.  Hence, there is

15     direct evidence on the record that during this meeting, Drago Nikolic was

16     not informed about the killing of prisoners, let alone about the common

17     purpose to kill all of the able-bodied men from Srebrenica enclave.

18             Moreover, even if Drago Nikolic would have been informed during

19     this meeting that the prisoners about to arrive would be killed, this

20     still falls short of the required knowledge of the common purpose for

21     Drago to become a member of that joint criminal enterprise.

22             It is necessary to recall that at that moment, Drago Nikolic

23     knows that a significant number of able-bodied men from Srebrenica are

24     fighting their way in the very area of Zvornik, and he may possibly have

25     known that the orders coming from the Main Staff were to prevent these

Page 34520

 1     men from linking up with the 2nd Corps, not to kill them.

 2             The Prosecution advances that Beara and Popovic had no reason to

 3     lie to their fellow security officer by telling him that the prisoners

 4     were to be exchanged.  Of course, we disagree with this proposition for

 5     many reasons.  Firstly, even though Drago Nikolic was a security officer,

 6     and if such conversation ever took place, the Prosecution appears to

 7     place on an equal footing Drago Nikolic with senior officers of a much

 8     higher level.  Drago Nikolic was but a security officer of a brigade.  He

 9     had the lowest possible rank for an officer.  Hence, there would be no

10     reason for Beara and Popovic to share with Drago Nikolic the details of

11     the common purpose, if it ever existed.  What they would necessarily have

12     been interested in would be giving instructions to Drago Nikolic as to

13     what they expected of him; nothing more.  That does not make

14     Drago Nikolic a member of that JCE.

15             Moreover, the Prosecution's argument that Beara and Popovic had

16     no reason to lie can also apply to Drago Nikolic, who had no reason to

17     lie to his fellow security officer, Slavko Peric from the 1st Battalion,

18     or to his driver, Bircakovic.  There is no evidence that Slavko Peric,

19     Rajko Babic, Momir Pelemis, ever received any information, whether from

20     the telegram they allegedly received or from Drago Nikolic, that the

21     prisoners were to be killed, let alone that the aim was to kill all

22     able-bodied men from Srebrenica.  Hence, the Prosecution's submission

23     implies that Bircakovic lied, Babic lied, Peric lied, and/or that

24     Drago Nikolic lied to them.  That's not supported by the evidence.

25             Furthermore, even considering what the Prosecution submits Beara

Page 34521

 1     and Popovic would have told Drago Nikolic during this meeting, this does

 2     not include information related to the common purpose of the alleged JCE;

 3     i.e., to kill all able-bodied men from Srebrenica.

 4             Lastly, the Prosecution advances, during this meeting, that

 5     Drago Nikolic would have made proposals on suitable locations for

 6     detaining, executing, and burying and the prisoners about to arrive.

 7     This allegation is unsupported by any evidence.  The fact that

 8     Drago Nikolic was a security officer and that he may have been familiar

 9     with the area of Zvornik is insufficient, in the absence of direct

10     evidence as to what was actually discussed during this alleged meeting,

11     to infer that he was aware of the common purpose.  The same goes for the

12     fact that Drago Nikolic -- sorry, for the fact that engineering equipment

13     was deployed, or the fact that soon after this meeting, buses of

14     prisoners arrive in the area of Zvornik.

15             The ultimate question, Mr. President, is whether, on the basis of

16     the evidence on the record, it can be inferred beyond a reasonable doubt

17     that Drago Nikolic was informed by Beara and Popovic of the common

18     purpose of the alleged JCE to kill all the able-bodied men from

19     Srebrenica.  This question, Mr. President, must be answered in the

20     negative because, simply, there are other possibilities supported by the

21     evidence.  Then such an inference cannot be made.

22             To mention but one such possibility, the evidence supports the

23     inference that Drago Nikolic was called to attend a meeting with Beara

24     and Popovic at the Zvornik Brigade Command, that he then attended -- that

25     Drago Nikolic attended this meeting, during which he was informed of a

Page 34522

 1     number of prisoners about to arrive, and he was asked to accommodate them

 2     in schools previously identified, such as the Kula school.  Considering

 3     that the 1st Battalion had already been informed by telegram of the

 4     arrival of prisoners, coming out of this meeting Drago Nikolic picks up

 5     the phone, calls the security officer from the 1st Battalion to suggest

 6     to him -- not to order him, but to suggest to him, Whatever your

 7     commander decided, or, Whoever your commander decided to send to the Kula

 8     school, let's avoid any problems with the local population.  You should

 9     go there because your house is located close to the school and you know

10     the area.  Then Drago Nikolic meets with his driver.  He informs his

11     driver of what he has been told during this meeting.  He expresses his

12     dissatisfaction, without reserve, and they drive to Hotel Vidikovac,

13     where sometime later the convoy of prisoners arrives.

14             This scenario, Mr. President, is supported by the evidence in a

15     much stronger way than the inference the Prosecution would like you to

16     draw.  The inference the Prosecution is asking you to draw is simply a

17     bridge too far.

18             That being said, we're not blind to the evidence, as I said

19     yesterday, at some point Drago Nikolic found out that prisoners taken to

20     Orahovac school were being killed.  That is a given.  As argued in our

21     final trial brief, this took place, at the earliest, when Drago Nikolic

22     returned to the Orahovac school in the early evening and, from there,

23     drove to the IKM with his driver, Bircakovic.  For purpose of his

24     knowledge of the common purpose, however, even when Drago Nikolic found

25     out that prisoners were being killed, what matters is that he did -- that

Page 34523

 1     did not provide him with the knowledge of the common purpose of the

 2     alleged JCE to kill all the able-bodied men from Srebrenica.  This, he

 3     never learned, and there is no evidence that he did, not even when he was

 4     allegedly close to the Petkovci school in the afternoon of 14 July or

 5     when he saw 40 to 50 bodies driving by the water point with Bircakovic

 6     that night.

 7             The evidence provided, of course, by Witness PW-101, as mentioned

 8     earlier, cannot be attributed weight, and it simply cannot be concluded

 9     that Drago Nikolic was present at the execution site that night.

10             In these circumstances, we respectfully submit that it must be

11     concluded that he was not a member of the alleged JCE, the purpose of

12     which was to kill all able-bodied men from Srebrenica.  Does that mean

13     that he was not involved in any way in what happened in Orahovac on 14

14     July?  Of course not, Mr. President.  I said that at the beginning of

15     these closing arguments.  The evidence reveals that Drago Nikolic was

16     close enough to the events which took place in Orahovac to possibly incur

17     some individual criminal responsibility.

18             Consequently, I will now address the Prosecution's arguments, in

19     part Roman XII of the Prosecution's final brief, the title of which is

20     "Individual Criminal Responsibility of Drago Nikolic Under Article 7(1)

21     of the Statute."  The best way to do this, Mr. President, is to refer to

22     the overview of the Prosecution's case against Drago Nikolic found in

23     section -- I was supposed to make something funny here, CCXIII or III of

24     the Prosecution's final brief.  I don't know who had the idea to use

25     Roman numerals for these sections, but it was quite a feat to make my way

Page 34524

 1     through the Prosecution's brief.

 2             At paragraph 2600, the Prosecution submits that the involvement

 3     of Drago Nikolic in the murder operation began when he was contacted by

 4     Vujadin Popovic and asked to make preparations for the prisoners.

 5             JUDGE AGIUS:  I think you're going too fast, Mr. Bourgon.

 6             MR. BOURGON:  Thank you, Mr. President.  I will slow down.

 7             JUDGE AGIUS:  The reporter is not catching up with you.

 8             MR. BOURGON:  I apologise.

 9             As argued by my colleague Zivanovic and as explained earlier, it

10     is our submission, Mr. President, that this telephone conversation

11     between Popovic and Drago Nikolic never took place.  It follows that the

12     very foundation of the alleged telephone conversation between Dragan

13     Obrenovic and Drago Nikolic is inexistent.  Consequently, without the

14     alleged information coming from Popovic, there is no reason for Obrenovic

15     to call -- sorry, for Drago Nikolic to call Obrenovic at that time.  It

16     is thus evident that this part of Obrenovic's statement of facts is

17     nothing but a fabrication.

18             So Drago Nikolic, of course, if that conversation did not take

19     place, was not authorised to leave his post at the IKM that evening, nor

20     was he authorised to use Jasikovac and five or six MPs unfit for combat

21     for the purpose of assisting Beara and Popovic with the POWs.

22             Moreover, the evidence reveals that Jasikovac is the one who gave

23     the orders for MPs to go to Orahovac; Stevo Kostic transcript 26003.  So

24     how did this take place?  Well, consider the following, Mr. President:

25     There is no evidence that Jasikovac was in the field that night.  It

Page 34525

 1     would have been illogical for Obrenovic to withdraw the commander of the

 2     military police in the field at this critical time.  The tactical

 3     intercept used by the Prosecution, that is, P2232, contains no reference

 4     to a conversation involving Jasikovac.  If Obrenovic had received

 5     instructions regarding the -- sorry.  Obrenovic had received instructions

 6     regarding the detention of members captured from the column in the early

 7     afternoon; that is P45.  Obrenovic did not inform the duty officer,

 8     Sreten Milosevic, of what was going on.  Drago Nikolic was at the IKM,

 9     and he was of no immediate assistance to Obrenovic.

10             Considering that the time at which Obrenovic left the Zvornik

11     Brigade Command that night is after the time the military policemen would

12     have left to Orahovac, the logical conclusion, Mr. President, is that

13     Obrenovic must have received personally the information that a group of

14     prisoners would be sent to Orahovac.  He never spoke to Drago Nikolic

15     about this.  He personally gave the order to Jasikovac to take the

16     members of the military police who were available at Standard not because

17     they were unfit, but because that was their place of duty that night, to

18     go to Orahovac and prepare the school.

19             In his statement of facts, Obrenovic lied about the involvement

20     of Drago Nikolic because the Prosecution put pressure on him to fill in

21     the gap in its evidence and because, of course, admitting his true

22     responsibility in these events would have meant a much higher sentence

23     recommendation.

24             The next allegation in the Prosecution's overview is at

25     paragraph 2601, that Drago Nikolic oversaw the deployment of MPs and the

Page 34526

 1     detention of prisoners who arrived at Orahovac that night, and of course

 2     the Prosecution says knowing that they would be murdered, but I've dealt

 3     with that already.  Strikingly, the Prosecution --

 4             THE INTERPRETER:  Could the counsel kindly slow down.  Thank you.

 5             MR. BOURGON:  Thank you.  I apologise.

 6             Once again, strikingly, the Prosecution omitted in its overview

 7     the alleged visit of Momir Nikolic at the IKM that night.  The reason for

 8     this is obvious, as mentioned in our brief.  The Prosecution knows that

 9     Momir Nikolic lied, and before the Trial Chamber decided to call him as a

10     witness in this case, they had given up on trying to rely on his

11     evidence.

12             There is no evidence, Mr. President, that Drago Nikolic was

13     informed on 13 July that prisoners would be murdered in the Zvornik area.

14     There is also no evidence that Drago Nikolic -- that Drago Nikolic,

15     sorry, was at the Orahovac school during the evening or night of 13 to 14

16     July.  As mentioned earlier, the testimony of PW-143, the only one who

17     would maybe have seen Drago Nikolic at the Orahovac school, cannot be

18     given any weight.

19             Another missing element in the Prosecution's overview is the

20     alleged replacement of Drago Nikolic by Galic that night.  It is

21     significant in this regard that the Prosecution did not prove or attempt

22     to prove, for that matter, the whereabouts of Drago Nikolic that night if

23     he had been replaced at the IKM, contrary to the evidence and our

24     arguments.

25             Moreover, the Prosecution refers to the testimony of Bircakovic.

Page 34527

 1     The Prosecution does not dispute the fact that he was ordered by Trbic to

 2     pick up Drago Nikolic at the IKM on the morning of 14 July and that he

 3     did so.  That's final brief of Prosecution paragraph 654/655.  If

 4     Bircakovic went to the IKM to pick up Drago Nikolic on 14 July, in the

 5     morning, then where was Galic?  These are powerful indicators that

 6     Drago Nikolic was never replaced at the IKM that night.

 7             The Prosecution overview, paragraph 2602, the meeting with Beara

 8     and Popovic, I've dealt with that already.

 9             The order to the 1st Battalion -- to the security officer of the

10     1st Battalion, that's 2603, I've dealt with that.

11             The Prosecution overview 2604, that the day of 14 July

12     Drago Nikolic oversaw the detention of prisoners at Orahovac, there's no

13     evidence that he coordinated anything at Orahovac.  The only witness who

14     says this is PW-101, and his evidence is not worthy of belief.

15             We have to consider the evidence provided by MPs about how many

16     times Drago Nikolic was at Orahovac that day.  Of course, the Prosecution

17     takes all the times that all the military policemen say that

18     Drago Nikolic was there, and conclude that he was there many times.  It's

19     just different times for those two events that have been proven.

20     Drago Nikolic was there twice.

21             More importantly, there is no evidence that the military police

22     from the Zvornik Brigade blindfolded the prisoners and placed them on

23     trucks.  The evidence reveals that some members from the Bratunac Brigade

24     came in.  The Prosecution did not even investigate that.  We provided the

25     Prosecution with the indictment that exists against members of the

Page 34528

 1     Bratunac Brigade.  That is 3D133.  They never looked into that.  They

 2     weren't interested in finding out who was blindfolding the prisoners, who

 3     was putting them on the truck.  They weren't interested in that.

 4             They knew, from the testimony of the victims, that persons

 5     wearing red berets were involved in these events.  Did they try and go

 6     and look to Bratunac Red Beret?  My colleague said it's a very famous

 7     unit who may have been involved in the executions.  They did not look

 8     into that.

 9             Prosecution overview 2607 or 2606, that Drago was present at the

10     execution site, I have dealt with that already.

11             2607.  He did not place any phone calls to Acimovic.  That's

12     established, and I've dealt with that.

13             2608.  Now we get into pure speculation, an alleged meeting

14     between Drago Nikolic and Beara at the Zvornik Brigade Command on 15

15     July.  Why?

16             JUDGE AGIUS:  Can we deal with that after the break?

17             MR. BOURGON:  Indeed, Mr. President, we can do that.

18             JUDGE AGIUS:  Okay, thank you.  Twenty-five minutes.

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

20                           --- On resuming at 10.59 a.m.

21             JUDGE AGIUS:  Yes, Mr. Bourgon.

22             MR. BOURGON:  Thank you, Mr. President.

23             I've been informed by the Registrar that according to the two and

24     a half hours which had been allocated or allotted, sorry, to the Nikolic

25     Defence team, we have 15 minutes left.  Mr. President, I ask for your

Page 34529

 1     indulgence, and I can say that we can complete our submissions in 40

 2     minutes.  That would be 25 minutes' additional time, and we will complete

 3     our submissions, Mr. President.

 4             JUDGE AGIUS:  Okay.  Go ahead, Mr. Bourgon.

 5             MR. BOURGON:  Thank you very much, Mr. President.

 6             Before the break ended, I was addressing the Prosecution

 7     overview, and I was at paragraph 2610, and I -- 2611, sorry.  Sorry, I

 8     apologise.  I was at 2608 and telling you that a meeting with Beara and

 9     Popovic at the Zvornik Brigade Command on the 15 July is nothing but

10     speculation.  Many witnesses testified on what happened on the 15th July,

11     in the morning.  Nobody -- no evidence -- no one mentioned the presence

12     of Beara at the Zvornik Brigade Command.  Even Witness Pandurevic, who

13     testified and explained everything that happened when he returned to the

14     Zvornik Brigade Command, and despite the fact that his theory, that Beara

15     had taken over the Zvornik Brigade Command, he never even mentioned that

16     Beara was there on 15 July, in the morning.

17             Mr. President, I move on to 2609, the fact that the Prosecution

18     says that Drago Nikolic went with Trbic to Rocevic school.  Simply

19     looking at the time, it's not possible.  The Prosecution would like you

20     to believe that Drago Nikolic was everywhere at the same time, that he

21     was on duty that morning as of 11.45, that he was in the morning,

22     according to the testimony of Mico Gavric, he met with persons at the

23     Zvornik Brigade Command in the morning.  And then the Prosecution would

24     like to place him at the Rocevic school.  If you look at the testimony of

25     Witness PW-165 carefully, there is no weight that can be attributed to

Page 34530

 1     this allegation or it simply has not been proved.

 2             The Prosecution again continues in its speculation at 2610,

 3     saying that because Drago Nikolic was on duty that morning, that's the

 4     very early morning, he gets a request for ammunition from the 1st

 5     Battalion, that this is sufficient to put Drago Nikolic on knowledge

 6     about what is happening at the 1st Battalion and that people will be

 7     killed there that day.  This is simply an inference which cannot be drawn

 8     beyond a reasonable doubt.

 9             The Prosecution continues by saying that Drago Nikolic was

10     involved in the murder of the four Branjevo Farm survivors.  We address

11     that.  The sole evidence on the record on this issue comes from Witness

12     PW-168, and it cannot be attributed any probative value.

13             As for the fact that Drago Nikolic was not involved in the

14     burial, again, the sole evidence on the record is Witness PW-168.  There

15     is an intercept about the reburials, but this intercept, in our view, can

16     only be interpreted with the benefit going to Drago Nikolic, that he was

17     not involved in the reburials.  It is also significant, regarding the

18     reburials, that Drago Nikolic, according to the evidence on the record,

19     was away when these reburials took place.

20             Finally, I need to address, Mr. President, a very important

21     topic, which is the fact that it appears that the Prosecution has

22     withdrawn or given up leading evidence or arguing that Drago Nikolic was

23     responsible for what happened to the patients from the Milici hospital

24     who were transferred to the Zvornik Brigade.  This was an allegation

25     which was in the indictment against Drago Nikolic.  It was also mentioned

Page 34531

 1     in the Prosecution pre-trial brief, although I do not have the reference.

 2     And to the best of my recollection, the Prosecution also mentioned this

 3     in its opening statement.  However, there is no mention whatsoever, in

 4     the Prosecution final trial brief, that Drago Nikolic is in any way

 5     involved in the disappearance or murder of the patients taken from Milici

 6     hospital.  I expected that in oral arguments the Prosecution would make a

 7     correction to that effect.  It has not done so.  Accordingly,

 8     Mr. President, the only conclusion which can be drawn immediately,

 9     actually, that Drago Nikolic was not involved in what happened to the

10     patients from the Milici hospital transferred to Zvornik.

11             I take this opportunity to mention one mistake I did earlier on,

12     when I was referring to the testimony of Witness Stojkic.  I said that he

13     testified coming back with the tank company.  That is not correct.  He

14     did not testify to that effect, so that's a mistake and I apologise for

15     this mistake.  It's something that we argued in the brief, that he came

16     back with the tank company, but he never said that.  He simply said that

17     he returned on 13 July.

18             I now move to Count 1, genocide.  Of course, our position is that

19     no genocide was committed, and even if genocide was committed, that

20     Drago Nikolic incurs no individual criminal responsibility for genocide.

21             The Appeals Chamber has already held previously, in the Krstic

22     case, that a genocide was committed in Srebrenica.  However, this is a

23     factual conclusion which is not binding on this Trial Chamber.  This

24     Trial Chamber must decide if a genocide was committed in Srebrenica on

25     the basis of the evidence in this case, not in previous cases.

Page 34532

 1             When we compare the evidence led in the Krstic case with the

 2     evidence led in this case, there are huge differences.  We know much more

 3     information today that was not known to the Appeals Chamber or to the

 4     Trial Chamber in the Krstic case.  Using the same line of reasoning as

 5     the Appeals Chamber did in the Krstic case, and we're applying it to the

 6     evidence in this case, it is our submission that it was not genocide.

 7             So going straight to the Prosecution's allegation, well, they

 8     change, of course, their view from the indictment until their final trial

 9     brief.  There used to be four components to the alleged genocide; now

10     there's only two.  They drop the reburials and they drop the

11     opportunistic killings as being part or components of the alleged

12     genocide.  Now, what they say in the final trial brief is that the

13     genocide is made up of the two joint criminal enterprise:  One, to kill

14     all the able-bodied men; and, two, to forcibly transfer the population

15     from Srebrenica and Zepa enclave.

16             Just the wording they use, Mr. President, shows that my previous

17     submission is correct, in the sense that when they talk about killing all

18     the able-bodied men, and they make a separation between that and the

19     population from the Srebrenica and Zepa enclaves, shows that the men were

20     not forcibly transferred.  Something different happened to the men, not

21     forcible transfer.

22             Mr. President, there are obvious problems with the alleged joint

23     criminal enterprise to kill all the able-bodied men from Srebrenica.

24     First of all, it is undisputed that not all the able-bodied men from

25     Srebrenica were, in fact, killed, so the common purpose of the alleged

Page 34533

 1     JCE was not achieved.  Then, based on the evidence as a whole, including

 2     forensic evidence and the demographic evidence, it simply cannot be

 3     concluded beyond a reasonable doubt that more than 7.000 Muslim men from

 4     Srebrenica were killed as a result of the crimes forming the basis of

 5     this indictment.  Of course, none of the Defence teams will be able to

 6     use an hour to make submissions just on this specific topic, as the

 7     Prosecution was able to do, but it doesn't matter, because our

 8     submissions and our brief clearly show that beyond a reasonable doubt the

 9     maximum number of persons who have been killed as a result of the crimes

10     committed in this case does not exceed 3.000.

11             Secondly and most importantly, in respect of the JCE to kill all

12     the able-bodied men, there are many counter-indications that the events

13     which took place in Eastern Bosnia in July 1995 reflect a genocidal

14     intent.  One counter-indicator is that the men who were killed while

15     travelling with the column going to Tuzla were killed as a result of

16     legitimate combat activities, which negates the proposition that they

17     were killed for the purpose of destroying, in whole or in part, the

18     Bosnian Muslim group, as such.  The Prosecution conceded on this that no

19     less than 70 to 73 per cent of those killed appear on the ABiH records.

20     Now, that's significant.  73 per cent of the members of the column were

21     on ABiH records, so they were actually aiming and they were actually

22     fighting soldiers, not committing -- not attempting to destroy the

23     Bosnian Muslim population, as such.

24             Another counter-indicator is the fact that a large number of men

25     from Srebrenica were allowed to link up with the 2nd Corps.  The reason

Page 34534

 1     why they were let through, whether it is because they were too strong or

 2     whether it is because it was to avoid a carnage on both sides, is

 3     irrelevant.  The fact is that they were let through, without fighting,

 4     shows that there was no intent to destroy, in whole or in part, the

 5     Bosnian Muslim group, as such.  The orders issued from the Main Staff

 6     down, to prevent these men from linking up with the 2nd Corps of the

 7     ABiH, not to kill them, shows that there was no intent to kill the

 8     able-bodied men.

 9             Another counter-indicator.  Contrary to the Appeal Chamber

10     findings in the Krstic case, the military-able men from Zepa, according

11     to the evidence in this case, were under the control of the VRS, yet no

12     genocidal acts were committed against them.

13             Another counter-indicator is the holding of the Darfur Commission

14     which held that the killing of young men selectively within the

15     population does not demonstrate genocidal intent.  This is paragraph 513

16     of the Darfur report.

17             Another counter-indicator is the fact that prisoners who were

18     held at the Kula school were transferred in the custody of military

19     police from the East Bosnia Corps and transferred away from the area of

20     Zvornik.  They were taken to Batkovici.  This shows that there was no

21     intent to kill or to destroy, in whole or in part, the Bosnian Muslim

22     group.  I refer to Novica Simic at transcript 28567/28569.

23             What I referred to earlier also, the chaos that was in Bratunac

24     on the 13th of July, shows that there were -- there was no genocidal

25     plan.  Of course there was some killing, of course there were some

Page 34535

 1     crimes, and of course they were atrocious, but there was never that

 2     intent in that area at the time.

 3             Lastly, my colleague said during his oral argument - that's at

 4     transcript 34276 - that what happened in Srebrenica was ethnic cleansing.

 5     Well, I'm not going to say I agree, but what I'll say is that this is an

 6     admission by the Prosecution that it was not genocide.  Ethnic cleansing

 7     is not genocide.

 8             What happened in July 1995 is that the VRS was looking for a

 9     piece of land to be in a good position to negotiate, as the ABiH was

10     doing -- trying to fight in Sarajevo and as the Croats were doing,

11     fighting for Operation Storm also in July 1995, not to destroy, in whole

12     or in part, the Bosnian Muslim group, as such.

13             Mr. President, there are also obvious problems with the alleged

14     JCE to force out the Muslim population in respect of genocidal intent.

15     One of these problems was illustrated by the holding of the Darfur

16     Commission presided by no other than Antonio Cassese.  He said that

17     forcible transfer is actually a counter-indication of genocidal intent;

18     paragraph 515 of the Darfur report.  Of course, the fact that people are

19     forced to move to another location, albeit as a result of a crime, does

20     not display intent or genocidal intent.  It actually supports the

21     proposition that the physical or biological destruction of the group was

22     not the aim.

23             An additional problem is again the holding of the Darfur

24     Commission, which is supported by the fact that two of the co-accused in

25     this case, although they are charged with forcible transfer, are not

Page 34536

 1     charged with genocide.  This shows that the Prosecution's understanding

 2     that being a member of the JCE to force out the Muslim population from

 3     Srebrenica and Zepa enclaves, if it was proved, of course, does not

 4     entail having genocidal intent.  That's a significant, again, admission

 5     on the Prosecution's side.

 6             Lastly and thirdly -- and thirdly, there is even a more important

 7     problem, which is that even if the actions taken to further both alleged

 8     JCEs, taken together, that would not demonstrate genocidal intent, as

 9     explained again in the Darfur report.  This is what the commission

10     concluded:  "Holding that the attackers did not entertain genocidal

11     intent, as their intent was to murder all those men they considered as

12     rebels, as well as forcibly expel the whole population as to vacate the

13     villages and prevent rebels from hiding among or getting support from the

14     local population."

15             For all these reasons, there was no genocide committed in the

16     area of Srebrenica.

17             Furthermore, even if the Trial Chamber was to conclude that

18     genocide was committed, the Prosecution failed to prove that

19     Drago Nikolic had the required mens rea.  The Prosecution argues that

20     genocidal plan for Srebrenica evolved from policy directives and

21     subsequent decisions of members of the RS and VRS leadership.  It is

22     significant that Drago Nikolic was not aware of these policies and these

23     subsequent decisions.

24             The Prosecution then says that genocidal plan culminated in both

25     JCEs.  Well, as we argued, Drago Nikolic was not a member of either

Page 34537

 1     alleged joint criminal enterprise.  It must also be noted that the

 2     central role played by Drago Nikolic in the crimes committed in July

 3     1995, as alleged by the Prosecution, simply has not been proved.

 4             Clearly, the acts and conduct of Drago Nikolic during the period

 5     from 12 to 17 July, coupled with his limited knowledge of any goals

 6     pursued by the RS and DRS leadership, do not support the conclusion that

 7     he harboured genocidal intent.

 8             The Prosecution goes on to argue that Drago Nikolic intent to

 9     commit genocide is evidenced by his personal use of derogatory language.

10     Well, we know that the Appeals Chamber clearly held that such charge

11     language is commonplace during wartime, and therefore no weight may be

12     attached to it in establishing genocidal intent.

13             Finally, the Prosecution argues that Drago Nikolic genocidal

14     intent may be inferred from the high level of planning and coordination

15     which went into the murder operation, and the systematic nature in which

16     the bodies were -- of the murdered Muslims were buried and then reburied.

17     The Prosecution has failed to prove that Drago Nikolic would have

18     contributed to the alleged high-level planning and coordination.

19     Drago Nikolic did not harbour the intent to destroy, in whole or in part,

20     the Bosnian Muslim group, as such.

21             The Prosecution -- I move now to the last topic quickly, which is

22     conspiracy to commit genocide.  I note, for the record, that there's

23     almost nothing about this Count number 2 in the Prosecution final brief.

24     I refer to our arguments, the first one being that the Prosecution simply

25     mixes things up or confuses conspiracy to commit genocide with joint

Page 34538

 1     criminal enterprise.  One is a mode of liability; one is a crime.

 2             And during his oral submissions, my colleague from the

 3     Prosecution, Mitchell, said that Drago became a member of the conspiracy

 4     later on.  That doesn't exist.  It is possible for an individual to

 5     ultimately become a member of a joint criminal enterprise once he's made

 6     aware of the common purpose, and he intends to further it, and he

 7     significantly contributes to it, but the conspiracy itself is finished by

 8     then.  Conspiracy -- you cannot buy into a conspiracy at a later point.

 9             Even if the Trial Chamber would find that the crime of conspiracy

10     to commit genocide was committed in Eastern Bosnia in July 1995, contrary

11     to our arguments, the evidence clearly establishes that Drago Nikolic

12     does not incur liability because to be a member of the conspiracy you

13     need to have genocidal intent, and Drago Nikolic did not have genocidal

14     intent.

15             Finally, with respect to persecutions, I refer the Trial Chamber

16     to the arguments in our brief, and once again I note that the Prosecution

17     has not even attempted to properly explain or prove -- or explain how

18     each of the co-accused in this case had the necessary discriminatory

19     intent.  What was done in July 1995, by whoever it was done, was not done

20     because they were Muslims, because the victims were Muslims.  It was done

21     because it was the enemy.  It was done to gain territory.  There was no

22     persecutions, as alleged by the Prosecution.

23             On this, Mr. President, I will hand over to my colleague, who

24     will now address with respect to sentencing considerations and final

25     remarks.

Page 34539

 1             Thank you, Mr. President.

 2             JUDGE AGIUS:  Thank you, Mr. Bourgon.

 3             Ms. Nikolic.

 4             MS. NIKOLIC: [Interpretation] Thank you.  Good morning to

 5     everyone in the courtroom.

 6             A lot has been said over the last three years and during our oral

 7     submissions, and therefore I will only address the mitigating and

 8     aggravating circumstances relating to the sentences and the character of

 9     Mr. Nikolic as stated in the Prosecution brief and its closing arguments.

10             In his closing argument of 2nd September 2009, on transcript

11     pages 34046 and 3407 [as interpreted], Mr. McCloskey pointed out three

12     things are necessary to prove the guilt of the accused -- excuse me just

13     for a second.  I'm sorry, my LiveNote is blocked -- which is that the

14     accused consciously disregarded their duty, that the accused did not

15     sabotage the crime or help the victims, and that the accused decided to

16     participate in the crimes.

17             Firstly, I'm not going to repeat the fact that Drago Nikolic, as

18     the security organ of the Zvornik Brigade, did not have any

19     responsibilities and powers regarding the prisoners of war.  Therefore,

20     the Prosecution did not prove that Drago Nikolic disregarded his duties.

21             Secondly, the Prosecution has not charged Drago Nikolic for

22     command responsibility or on the basis of command responsibility, and

23     therefore cannot accuse him of failing to prevent crimes at the end of

24     the trial.

25             And, finally, the Prosecution did not adduce evidence, as my

Page 34540

 1     colleague pointed out, that Drago Nikolic was aware of the common plans,

 2     that he intended to further the common plans, and that he had

 3     significantly contributed to the common plans, and that he had the

 4     required intent for the crimes included in the JCE.

 5             Drago Nikolic was taken aback by the events of surprise and scope

 6     and speed in Zvornik on the 14th of July 1995.  It has been said at one

 7     point in time Drago Nikolic found out and realised that prisoners of war,

 8     who had been brought to Orahovac, had been executed.  That happened in

 9     the evening of the 14th of July, 1995.  Drago Nikolic was in the

10     proximity of the school in Orahovac and Petkovci, but he never went to

11     Pilica or Rocevic during the critical events.

12             It is necessary to highlight that what took place on the 14th of

13     July is important for establishing his responsibility.  What is even more

14     important is to establish what Drago Nikolic could have done; in other

15     words, what his real options were, having in mind his rank, his position,

16     his ability to influence the events, the overwhelming nature of what was

17     happening, the scope of the operations, and the rank and authority of all

18     other officers who were involved.

19             The facts in this case show that Drago Nikolic could not have

20     influenced in any way the decision to bring the prisoners of war to the

21     territory of Zvornik.  He learned about his arrival only upon their

22     arrival.  He could not have prevented the prisoners being put up in

23     schools.  He could not have secured food and water for them, nor could he

24     have secretly called a TV station, as suggested by the Prosecution in its

25     final brief at paragraph 2715.  Briefly, his possibilities were

Page 34541

 1     considerably limited.

 2             Also, Mr. President, I would like to address the aggravating

 3     circumstances as listed by the Prosecution in their final brief at

 4     paragraphs 2816 to 2827.

 5             The Prosecution claims that the scope of the crimes, the number

 6     of victims, and the vulnerability and status of the victims are

 7     aggravating circumstances.  Your Honours, these elements cannot be

 8     treated as aggravating circumstances, as they have already been

 9     incorporated in the definition of the crimes that the accused has been

10     charged with, including Drago Nikolic.  This has been argued in the

11     Blagojevic and Jokic judgement, paragraphs 841 and 843.

12             Secondly, the Prosecution's claims, in paragraphs of their final

13     brief 2822 to 2825, that Drago Nikolic's high rank and position in the

14     brigade are aggravating circumstances.  However, as indicated already,

15     Your Honours, Drago Nikolic was a second lieutenant, which is the lowest

16     possible rank for an officer, as explained in our final brief in

17     paragraphs 412 to 415.  His position in the brigade can be seen from the

18     testimony of PW-104, who said that Drago Nikolic, as a second lieutenant,

19     did not have any importance; transcript page 8018.  He certainly did not

20     hold the high rank as claimed by the Prosecution, nor the authority.

21             Thirdly, in the Prosecution's view, in paragraphs 2826 to 2827,

22     the willing participation of Drago Nikolic in the crimes also constitutes

23     an aggravated circumstance.  In our final brief, as well as in our

24     closing arguments, the Defence strongly rejects the Prosecution's claims

25     in this respect.  Drago Nikolic was drawn into the whirlwind of events

Page 34542

 1     without ever being asked whether he was willing to do that or not.

 2             Mr. President, in this respect I would like to draw a parallel

 3     with Dragan Jokic, who was sentenced by this Tribunal on the basis of the

 4     same events.

 5             In paragraph 836 of the Blagojevic and Jokic judgement, the Trial

 6     Chamber took account of the limited involvement of Dragan Jokic and his

 7     low rank were the key factors in determining the sentence.  As has

 8     already been said, the involvement of Drago Nikolic in these events was

 9     also very limited.  He was not a member of the alleged joint criminal

10     enterprise, even though he bears part of the responsibility because of

11     his proximity to the events.  He was a second lieutenant, which is the

12     lowest rank for an officer, and he did not have the authority of a

13     superior officer.

14             Mr. President, I respectfully draw the Trial Chamber's attention

15     to our arguments in relation to the character of Drago Nikolic in

16     paragraphs 396 to 421 of our final brief.  I also respectfully recall the

17     testimonies of witnesses who appeared before this Trial Chamber to

18     testify about the character of Drago Nikolic and the events of July 1995,

19     (redacted)

20     (redacted).  The evidence before this Trial Chamber

21     relating to his character show that he is a man who never expressed

22     hatred or inter-ethnic intolerance, who conscientiously discharged his

23     duties, who respected his superior officers.  He grew up in the spirit of

24     tolerance, which is confirmed by the current relationships in his family,

25     as indicated in our final brief in paragraph 490.

Page 34543

 1             Finally, Mr. President, I call upon the Trial Chamber to take

 2     into account the character and the limited involvement of Drago Nikolic,

 3     as opposed to other individuals who were involved in these events.  In

 4     relation to this, I would like to say one thing.

 5             Drago Nikolic did not participate in the events as presented by

 6     the Prosecution, and he definitely is not the kind of person that the

 7     Prosecution would like to portray him to be.

 8             Thank you.

 9             JUDGE AGIUS:  Thank you, Ms. Nikolic.

10             Judge Kwon, any questions?  Judge Stole?  Judge Prost?

11             JUDGE PROST:  Thank you.

12             Mr. Bourgon, I have a couple of questions for you.

13             Back at the beginning of your submissions, Mr. Bourgon, and it's

14     specifically page 6, line 12, you were discussing -- and perhaps out of

15     an abundance of caution, because this was in private session, we should

16     go into private session just briefly.

17             JUDGE AGIUS:  Let's do that.

18                           [Private session]

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 34544

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 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24                           [Open session]

25             JUDGE PROST:  This is an argument that was made by both you and

Page 34545

 1     Mr. Ostojic as well made several references in this regard, and I simply

 2     want to be clear as to your proposition here.

 3             You have pointed to particular witnesses that the Prosecution,

 4     for whatever reason, chose not to call in this case, and what I'd like to

 5     know is whether you're suggesting there is any form of inference that

 6     this Trial Chamber can derive from the failure of the Prosecution to call

 7     particular witnesses.  And if that is your proposition, that we can draw

 8     a negative inference, I'd like to know what authority there is in support

 9     of that proposition.

10             MR. BOURGON:  Thank you, Judge.

11             To put it bluntly, there is no negative inference that can be

12     drawn from the fact that the Prosecution did not call a witness.  That's

13     this -- if this is what came from what my argument looked like, it was

14     not what was intended.

15             What is intended, however, is to support what my colleague from

16     the Prosecution said was inappropriate in the Borovcanin final brief.  He

17     argued that it was improper to suggest that it's unsafe to make

18     inferences on the basis of evidence when you know that evidence is

19     missing.  So it's not drawing a negative inference about the

20     Prosecution's conduct.  It's the fact that when the time will come for

21     the Trial Chamber to draw an inference, if there is information that is

22     missing, if there is information that would have assisted the Trial

23     Chamber in leaning one way or another, then definitely the benefit must

24     go to the accused, and that inference cannot be drawn.

25             To use an example, the example I use is, of course:  Who ordered

Page 34546

 1     the military police to go to Orahovac on the evening of 13 July?  There

 2     is evidence that Jasikovac ordered the military police to go to Orahovac.

 3     That -- there is direct evidence about this by some witnesses; namely,

 4     Stevo Kostic.  However, the involvement of PW-168 into how and who told

 5     Jasikovac to go to Orahovac, the Trial Chamber will have to make an

 6     inference.  Because Jasikovac was not called as a witness and could have

 7     been called, then there might be there is some critical information

 8     missing.  And because that critical information is missing, then the

 9     Trial Chamber will have to make an inference that -- where the doubt will

10     benefit to the accused.  And the accused in this case is a man who we say

11     never called Dragan Obrenovic that night to report to him information he

12     would have received from Popovic.  So the missing information will

13     prevent the Trial Chamber from drawing, in certain circumstances,

14     negative inferences against the accused.  That's what we're saying,

15     Judge.

16             JUDGE PROST:  Thank you.

17             I have now just two legal questions for you, Mr. Bourgon.  I

18     have, of course, read carefully the arguments outlined in the brief on

19     these various issues, so my question on forcible transfer is quite

20     limited, but I'd like to know, with respect particularly to the

21     individuals -- the men separated at Potocari, is it your proposition that

22     were an army to take control of a town, it would be lawful -- a town

23     where there has been allegations of opposition army members being present

24     in that town, would it be lawful for them to, upon entering the town, to

25     go to every house and take into custody every able-bodied man, and place

Page 34547

 1     all those men onto buses and move them out of that town?  Is it your

 2     proposition that where there is an allegation, a suggestion, that the

 3     armed forces of the opposition have been present in the town, that it's

 4     lawful to take that action and it doesn't constitute forcible transfer?

 5             MR. BOURGON:  My answer is "yes," Judge.

 6             JUDGE PROST:  So it is lawful to do a search of houses, take

 7     individuals into custody, and remove them from the town in those

 8     circumstances?

 9             MR. BOURGON:  Absolutely.  If an army takes over a town and there

10     are still members of the opposing force present, it is lawful for the

11     attacker to detain all members that are left behind, to detain them and

12     to hold them as prisoners of war, and to transfer them or to transport

13     them to various detention facilities.

14             JUDGE PROST:  And this is without conducting any sort of

15     determination, any sort of interview process, any identification of arms,

16     any indication that these individuals are members of the armed forces of

17     the opposition?  It's still lawful to take those individuals, place them

18     on the buses, and remove them from the town?

19             MR. BOURGON:  Judge, that is a completely different question,

20     whether these people have been properly identified as members of the

21     opposing force left behind.  There needs to be a screening process, in

22     accordance with International Humanitarian Law.  Every army in the world

23     has all kinds of directives that they use in order -- when they detain

24     somebody, then the first thing that needs to be done, they must be sent

25     to a detention facility where immediately every single alleged prisoner

Page 34548

 1     of war will be given an opportunity to argue against the fact that he is

 2     a prisoner of war and that he is -- or she is a civilian.  Now, when this

 3     screening process will take place, that does not have to take place,

 4     necessarily, in the next 24 hours.  But if there are reasons to believe

 5     that these members are members of the opposing force, they can be

 6     detained lawfully until the screening process will take place, yes,

 7     Judge.

 8             JUDGE PROST:  Thank you.  I have your point on that.

 9             And, finally, I'm just -- perhaps this is motivated more by

10     curiosity, but I'm quite curious about your remarks relating to

11     conspiracy, because I'm not familiar -- I'm well familiar with the law of

12     conspiracy as I know it in my own system, but I'm not familiar with this

13     temporal limitation that you're suggesting on the law of conspiracy.  For

14     example, were I to, today, enter into an agreement with Judge Agius to

15     commit some criminal activity, and tomorrow Judge Agius and I were to

16     discuss that and receive the agreement of Judges Kwon and Stole to

17     participate in that same agreement to commit criminal activity, as far as

18     I'm aware, that would constitute conspiracy of the part of all four of us

19     in the same conspiracy.  I wasn't aware that there was any temporal

20     suggestion to the law of conspiracy and when the individuals have to

21     enter into the agreement, albeit the agreement, of course, is the

22     actus reus of the offence.  Could you perhaps just comment on that, for

23     me, please?

24             MR. BOURGON:  Yes, Judge, absolutely.

25             Both theories have been argued before the International Tribunal

Page 34549

 1     for Rwanda.  The theory that you propose, and there is -- that is that

 2     conspiracy is a continuing offence, where you can become a member to the

 3     conspiracy, but this view has been rejected before the ICTR.

 4     Unfortunately, I cannot tell you the exact case in which this has taken

 5     place.  However, our view is the following:  Once two persons decide and

 6     get into the agreement to commit a crime, and then once the crime has

 7     begun, once the crime has begun, we move into a different scenario.  The

 8     person coming in after the crime has begun, after the train has been set

 9     in motion, that person is not a member of the conspiracy, he's a member

10     of the crime.  And if that crime happens to be committed through a joint

11     criminal enterprise, then he becomes a member of the joint criminal

12     enterprise if, of course, he has the necessary mens rea and if, of

13     course, he does something to significantly contribute to the furtherance

14     of the common purpose or of the criminal plan.

15             JUDGE PROST:  So just that I'm perfectly clear, you would say

16     that the limitation arises once the crime has commenced - that's on your

17     argument - that there's no longer an ability to become part of the

18     conspiracy, and not once the crime has been completed?

19             MR. BOURGON:  That's exactly our position, Judge.  Once the crime

20     has begun, the conspiracy is over.

21             JUDGE PROST:  Thank you.

22             JUDGE AGIUS:  Thank you.  I have no -- I did have one also in

23     relation to the time when one can join a conspiracy, but I think most of

24     it has been covered by Judge Prost and your answer, so I leave it at

25     that.

Page 34550

 1             MR. BOURGON:  Mr. President, can I take this opportunity to make

 2     a few corrections in the transcript--

 3             JUDGE AGIUS:  Yes, please.

 4             MR. BOURGON:  -- that have been brought to my attention?

 5             JUDGE AGIUS:  Please, please.

 6             MR. BOURGON:  The first one is at page 26, line 2, where I said

 7     in the transcript this morning, I said that:  "Of course, it is an

 8     element of the crime," and I should have said that:  "Of course, it is

 9     not an element of the crime."  Our position is that it's part of the

10     definition for the common purpose.

11             The second place is on 8th of September, at line 2, 34479, I'm

12     not sure if I made the mistake or if it was just a -- it's my mistake,

13     I've been told it's my mistake, so it's my mistake.  I mentioned Rocevic,

14     and I should have mentioned Orahovac.  That's 8th of September, line --

15     page 34479, at line 2.

16             One last correction I need to make, another of my

17     mistakes - maybe it's too much coffee or lack of sleep, I'm not sure - I

18     mentioned that 70 per cent of the members of the column were on ABiH

19     lists.  This is not actually what I should have said.  I should have said

20     that it's from 70 to 73 per cent of the complete missing persons from

21     Srebrenica who were on ABiH lists.  I think the distinction is important,

22     and I think my colleague will agree that this is what I should have said

23     on this occasion.

24             Thank you very much, Mr. President.

25             I also want to take one minute to say thank you to the staff of

Page 34551

 1     this team.  They've been working very hard and, Mr. President, it's very

 2     tough to have legal assistants in these Defence teams because of the

 3     working conditions, and I'm really grateful for those people who have

 4     worked with us throughout this case and I want to publicly acknowledge

 5     them.

 6             Thank you, Mr. President.

 7             JUDGE AGIUS:  Thank you.

 8             Now, I don't know, Mr. Lazarevic or Mr. Gosnell.

 9             MR. GOSNELL:  Thank you, Mr. President.

10             My colleague will need some setup time for a visual presentation

11     that will be accompanying my closing remarks.  I've done some

12     calculations in my head, and I believe that you could take the 25-minute

13     break now and then go in one -- in one interval in until the end.  So if

14     that's to your liking, that would be our preference.

15             JUDGE AGIUS:  Yes, but you need to calculate, then, the time we

16     will have to the end if we take a 25-minute break now.  It means,

17     basically, we will restart at 12.15.  1.15 -- from 12.15, yes, yes, it

18     should be okay.

19             Agreed?  All right.  That's fine with us, and that's what we will

20     do.  Thank you.

21                           --- Recess taken at 11.47 a.m.

22                           --- On resuming at 12.19 p.m.

23             JUDGE AGIUS:  Yes, Borovcanin Defence team.

24             Mr. Gosnell, good afternoon to you.

25             MR. GOSNELL:  Thank you very much, Mr. President.

Page 34552

 1             The Prosecution told you three things in their final brief about

 2     the Petrovic footage of the Kravica warehouse on 13 July:  The west

 3     entrance of the warehouse is open; 500 Muslim men are inside that west

 4     room, either dead or bleeding to death; and a massacre is underway in the

 5     east room of the warehouse at 5.15 to 5.20 p.m., which starts immediately

 6     after the massacre in the west room where the 500 Muslim men are already

 7     dead or incapacitated.  The Prosecution, during its closing remarks last

 8     Friday, expressly or impliedly retracted each of these three claims.

 9     They now acknowledge that the first claim is just incorrect, that the

10     second claim is, therefore, uncertain, and, third, that there may have

11     been a 30-minute interval between the end of the first shooting incident

12     and the start of the massacre in the east room.  These are radical

13     changes to the Prosecution theory of the nature and sequence of events at

14     the Kravica warehouse, as presented in their brief, which are, in turn,

15     fundamental to any determination as to what Borovcanin may have seen.

16     The mere fact of these changes reveals the speculative nature of their

17     circumstantial case.

18             But I would go further, Your Honours.  I suggest to you that the

19     Prosecution's new position is actually incompatible with the inferences

20     that they have asked you to draw.  The bulk of my remarks today will be

21     focused on proving that and to situate these three propositions within

22     the broader framework of the Prosecution case.

23             The Prosecution alleges in its final brief that Mr. Borovcanin,

24     no later than the evening of 12 July, was fully aware of a plan to murder

25     all Muslim prisoners who were being taken into custody by Serb forces

Page 34553

 1     following the fall of Srebrenica.  The Prosecution presents an

 2     alternative theory, however.  They say that Borovcanin, if he had no

 3     advance knowledge of any killing plan, should still be found guilty on

 4     the narrower basis of what he saw and did late on the afternoon of

 5     13 July.  He is said to have witnessed an ongoing massacre at the Kravica

 6     warehouse late that afternoon and to have done nothing about it.  The

 7     Prosecution asserts that this makes him guilty of superior responsibility

 8     if the men doing the killing are his subordinates, or of some form of

 9     omission liability if the killers were not his subordinates.  The

10     Prosecution has thus offered you, if you'll indulge what I believe is a

11     useful simplification, a broad case theory and a narrow case theory.

12             If Your Honours accept the broad case theory, then the precise

13     sequence of events on 13 July and, in particular, what can be seen on the

14     Petrovic video, will probably have little impact on your ultimate

15     findings.  If, on the other hand, you find that the broad case theory is

16     unsustainable or even doubtful, then I suggest that the exact sequence of

17     events on 13 July requires your anxious scrutiny.

18             So let's start with the broad case theory.  As expressed at

19     paragraph 1878 of their brief, and I believe it should be coming up on

20     the screens in front of you, the Prosecution alleges that, and I quote at

21     paragraph 1878:

22             "By the end of 12 July, Borovcanin must have been fully aware of

23     the VRS's intentions to separate and murder the Muslim men and boys of

24     Potocari."

25             The OTP explicitly offers three arguments in support of this

Page 34554

 1     claim.  The first argument, at paragraph 1914, is that, and I quote:

 2             "Any normal military order provides the subordinate command with

 3     the objective of the operation, and the VRS would have communicated as

 4     much to Borovcanin."

 5             This is not a reasonable assumption, Your Honours.  Is it really

 6     likely that someone at the most senior level of the VRS leadership, who

 7     hatches a murder plot, a mass murder plot, would feel duty-bound to

 8     reveal such criminal intentions to any and all subordinates because of

 9     the niceties of military regulations?  Momir Nikolic, the only witness

10     who provided any direct insight on this issue, testified that the exact

11     opposite was true.  He did not mention the killing plan to anyone on 12

12     and 13 July presumably on the understanding that he was supposed to keep

13     the plan as quiet as possible.

14             The Prosecution's second argument, expressed at paragraphs 1858,

15     1908, 1914, and 1918 of their brief, is that:  A, the prisoners in

16     Potocari were abused; B, this abuse was witnessed by or known to

17     Borovcanin; and, C, this abuse must have led Borovcanin to infer that all

18     prisoners were to be killed.

19             Now, the OTP brief frequently associates the words "separation"

20     and "detention" with "abuse" and "execution" respectively, as if by

21     frequent repetition you, the Chamber, should simply accept that natural

22     inference.  This claim is false on several levels.

23             Detention of military-aged men is an accepted practice under

24     International Humanitarian Law and one that has been carried out by

25     Western militaries in the past.  It was perfectly justified in the

Page 34555

 1     particular circumstances of Srebrenica, where all military-aged men were

 2     subject to conscription, where combatants frequently wore civilian

 3     clothing, and where there was a large armed column of Muslim combatants

 4     in the very near area.  The practice of wholesale detention was common

 5     throughout the Balkan wars, without mass executions ensuing, and even the

 6     internationals on the ground in Potocari on 12 or 13 July did not believe

 7     that the detentions were improper or, importantly, that the conditions of

 8     detention indicated that the prisoners were going to be executed.

 9             A valid question does remain, however, and that is whether

10     Borovcanin saw or would inevitably have learned of force that went beyond

11     what was necessary to place the prisoners in detention, and on a scale

12     sufficient for him to infer that there was a mass murder plot unfolding.

13     So the issue, Your Honours, I submit to you, is not whether he happened

14     to be present in Potocari for any part of the evacuation process.  The

15     issue, rather, is whether it can be safely inferred, from the duration of

16     his presence, that he would have seen abuses that would have alerted him

17     to a murder plan.  The evidence, as we have extensively discussed in our

18     brief, simply does not support that inference, both because of the

19     surreptitious nature of the violence that did occur in Potocari and the

20     fact of Borovcanin's only very brief presence there on the 13th of July.

21             The Prosecution argues, third, at paragraph 1916 of its brief,

22     that Borovcanin's failure to describe the purpose of detention in his

23     post-operation reports implies that he was covering up a criminal intent.

24     But first of all, Your Honours, Borovcanin candidly says, in both of his

25     post-operation reports, that MUP forces did assist with the evacuation

Page 34556

 1     process, so there's no evasion there.  Second, as Borovcanin maintained

 2     throughout his interviews with the OTP back in 2002, and as the evidence

 3     shows, he did not have effective control over the Deserters Unit in

 4     Potocari and its participation in the evacuation process.  The passing

 5     discussion in his reports simply reflects his limited involvement.  And,

 6     third, Borovcanin had absolutely no reason to engage in a lengthy

 7     justification of detentions in internal memos to superiors, a detention

 8     process that, after all, had been ordered at the top levels of the VRS.

 9     So the failure to provide an extensive explanation or justification of

10     these detentions is no evidence that he had a murderous intent on 12 or

11     13 July.

12             The Prosecution makes three other arguments that might be

13     relevant to their broad theory:  First, that the Chamber can assume that

14     the killings at the Kravica warehouse were a pre-planned execution from

15     the start because the killings there fit into the broader pattern of

16     executions.  That's wrong.  The warehouse is 20 metres away from the main

17     road.  On the afternoon of 13 July, long convoys of buses, filled with

18     Muslim civilians, were travelling along that road, potentially with

19     UNPROFOR escorts.  This was not a propitious place for a bloody massacre

20     of a thousand men.

21             With the possible exception of Jadar River, which involved only a

22     small number of victims, every one of the executions following Srebrenica

23     took place far from the eyes of potential witnesses.  Cerska, the only

24     execution that, arguably, precedes the events at Kravica warehouse, was

25     carried out in secrecy, several kilometres off the main road.  Nor were

Page 34557

 1     any ligatures found amongst the human remains alleged to have come

 2     exclusively from the Kravica warehouse.  Nothing in the circumstances

 3     surrounding the detention of Muslim men in the warehouse on the afternoon

 4     of 13 July would have inherently suggested that they were about to be

 5     massacred, rather than being held there temporarily pending transfer to

 6     detention camps, as, by the way, was the case with all the other

 7     prisoners being detained along the road that day, who were being bussed

 8     to Bratunac and then held temporarily in detention there.

 9             Second, the Prosecution alleges that Borovcanin's order to stop

10     traffic along the road was for the purpose of concealing the execution of

11     prisoners at the warehouse, and this is at paragraphs 585 and 1988 of

12     their brief.  The most glaring fallacy in this reasoning is the

13     assumption that there was only one reason to close the road and that the

14     road was closed only once.  This is an unreliable assumption, as we

15     discuss at paragraph 302 of our brief.

16             Immediately after Borovcanin is heard saying that the road should

17     be closed, the Petrovic video shows two large-calibre mobile guns on the

18     road immediately in front of his vehicle, firing intensively into the

19     country-side.  The vehicles are in the right lane, but the guns are swung

20     partly over the left lane.  No buses are seen during this sequence of the

21     video.  So we submit that you cannot simply accept the proposition that

22     the only possible reason for closing the road would have been to conceal

23     these executions.

24             Further, there are indications that the road was closed on

25     multiple occasions and for different purposes.  This flows from the audio

Page 34558

 1     of the trial video itself.  This is P2985, page 10, in which Borovcanin's

 2     interlocutor says that someone else, a certain Kovac, has already taken

 3     care of closing the road, so I suggest that this provides at least a

 4     potential indication that the road was closed earlier for another reason.

 5             The broader context also belies the Prosecution's allegations

 6     about the motivation behind this order.  First, if Borovcanin had wanted

 7     to commit mass murder at Kravica warehouse and conceal it, why would he

 8     close the road immediately before the last convoy of buses is leaving

 9     Potocari and is soon to pass the Kravica warehouse?  That last convoy is

10     marshaling in Potocari at about this time, as can be seen on the DutchBat

11     video footage and, I believe, as is a proper interpretation of the

12     Petrovic footage.

13             The Prosecution asserted before you on Friday that the convoys

14     continued until 8.00 p.m., but that's not what they say in their final

15     brief at paragraph 379, where they assert, and I quote:

16             "By about 1800 hours on 13 July, the transportations were

17     completed."

18             If there was an intention to conceal the killings, wouldn't it

19     have made more sense to let these buses through and then execute the

20     prisoners, without any chance of witnesses passing by?  And if this was

21     the purpose of the order, then why on earth would the check-point, where

22     these buses are being stopped, be located only a few hundred metres down

23     the road from the warehouse?  Why would he have brought a journalist with

24     a video camera along with him up the road and then hand the video footage

25     over to the OTP during his interview.

Page 34559

 1             Now, the Prosecution tries to dismiss that.  They say, Well, he

 2     had to hand over the tape because he would have thought we already had

 3     it.  But that's not true, Your Honours.  Even in 2002, the OTP did not

 4     have that footage.  They got it from Borovcanin.  And they've claimed

 5     that the reason why they didn't have that footage was because there was a

 6     concerted effort to conceal that footage.  Now, if Borovcanin is in all

 7     this, is it plausible to say that he doesn't know about this massive

 8     cover-up that the OTP is relying on to explain why they didn't get this

 9     footage until 2002?  And wouldn't it have been smarter for Borovcanin to

10     claim, as he could quite easily have done, I just don't have this tape,

11     no idea?  He still could have massaged what he said during the interview,

12     he still could have conformed what he had to say based upon what might

13     later emerge.  There would have been no comeuppance, or embarrassment, or

14     implications of guilt if later that videotape had emerged from another

15     source.

16             In short, Your Honours, the allegation that Borovcanin is closing

17     the road to conceal a mass execution is sheer speculation, an implausible

18     speculation at that.

19             The Prosecution relies on one last element for its broad theory

20     of Borovcanin's involvement in the killings, and that's the Krstic

21     intercept from 8.40 p.m. on the evening of 13 July.  The intercept can

22     only bear the sinister interpretation advocated by the Prosecution if the

23     massacre at Kravica warehouse has already taken place.  The best view of

24     the evidence, however, taken in its totality, and I'll be going through

25     it later, is that the full-blown massacre at the Kravica warehouse did

Page 34560

 1     not happen until nightfall.

 2             Borovcanin's answers during his OTP interview do not reflect any

 3     consciousness of guilt or an attempt to cover up.  They are simply a

 4     legitimate rejection of unfounded allegations.

 5             For these reasons, Your Honours, and for all the other reasons

 6     that are expressed in our brief, we suggest to you that the Prosecution

 7     has not established beyond a reasonable doubt that Borovcanin was driving

 8     up that road on 13 July with advance knowledge of any impending mass

 9     execution.  The evidence, in fact, suggests the contrary.

10             In this context, Your Honours, we suggest that the details of the

11     narrow case are important, and they merit your close analysis.  The

12     narrow case theory relies on two primary factual propositions:  First,

13     Borovcanin was at the Kravica warehouse during a mass execution that

14     allegedly commenced at 5.00 p.m.; and, second, his men participated in

15     these killings.  No direct evidence supports these two allegations.

16             The Prosecution has relied, instead, on circumstantial evidence,

17     and that requires them to exclude all other possible scenarios as

18     unreasonable.

19             A circumstantial case should possess, I submit, three

20     characteristics to meet that standard.  Coherence:  Does the scenario

21     pointing to the accused guilt explain all of the available evidence

22     without being internally contradictory?  Consistency:  Do the fundamental

23     aspects of the scenario remain unchanged as new evidence is adduced?

24     Trustworthiness:  Is the evidence generated and disclosed in a manner

25     that ensures that all possible alternative scenarios can be safely

Page 34561

 1     discarded as unreasonable?  The Defence bears a burden only to show that

 2     the Prosecution has not done so, including by suggesting other reasonably

 3     possible scenarios or, more accurately, by suggesting other scenarios

 4     that cannot be excluded as unreasonable.

 5             Your Honours, you have our brief.  We have presented you with a

 6     scenario that is not only eminently reasonable, but we say much closer to

 7     the truth of what happened than what has been put forward by the

 8     Prosecution.  The evidence strongly suggests that there were two distinct

 9     killing events.  The first shooting event lasted between 10 and 30

10     minutes, and was most likely a reaction to a break-out attempt by Muslim

11     prisoners.  The bodies you see in front of the warehouse on the video

12     appear to have been killed during this relatively short outbreak of

13     shooting.

14             An interval then ensues, during which time the prisoners are

15     locked down in the warehouse.  The exact duration of that interval is

16     unclear, but probably, based on the best view of the evidence, lasts

17     until nightfall, and only then did a deliberate massacre of the prisoners

18     begin, continuing for a considerable period throughout that night.

19             Now, Your Honours, again, we have no burden in presenting this

20     theory; no evidential burden, in any event.  We admit that the theory is

21     based on some speculation, which is merely a reflection of the

22     fragmentary evidence that was brought before you.  Nevertheless, we do

23     assert that the sequence of events is not unreasonable.

24             The Prosecution has simply not been able to exclude the

25     reasonable possibility that the first sequence of shooting was of short

Page 34562

 1     duration, that prisoners were shot in reaction to a break-out attempt,

 2     and that even this shooting event was over by the time Borovcanin arrives

 3     or passes by the warehouse.

 4             The Prosecution theory, as expressed in the closing brief, the

 5     scenario they've presented is only credible based on ignoring a whole

 6     series of evidential issues that they don't address in their brief.

 7     There's no discussion at all of Mevludin Oric's testimony.  There's no

 8     meaningful discussion of Milos Djukanovic's testimony and his potential

 9     biases.  There's no acknowledgment, much less discussion, of the

10     divergent testimony of PW-111 and PW-156.  There's no discussion of the

11     evident problems with 156's testimony.  And most importantly of all, and

12     this is what it really comes down to, there's no analysis as to the

13     relative weight of the conflicting testimony of 111 and 156.

14             The Prosecution tried to rectify some of those deficiencies on

15     Friday, and I will be responding to that.  Nonetheless, I suggest that

16     the Prosecution's analysis continues to be incomplete and superficial.

17             Their brief does at least have the merit of offering a very clear

18     hypothesis about the sequence of events at the warehouse, and here's the

19     sequence that they gave to you:  A pre-planned execution begins sometime

20     between 4.55 and 5.00 p.m.  By about 5.15 p.m., all of the prisoners in

21     the west room are dead or incapacitated.  At approximately 5.15 or 5.20,

22     so that's some 20-odd minutes into the killings, a Muslim prisoner

23     manages to seize a rifle and kill two Serb soldiers.  A third is injured

24     grabbing the barrel -- the over-heated barrel of the gun.  Borovcanin

25     then receives a radio call concerning this incident and is told to come

Page 34563

 1     back down the road.  Borovcanin does come back down the road, and

 2     according to the OTP, in their brief, arrives between 5.15 and 5.20 p.m.

 3     And then as expressed in paragraphs 1992, 1989, and paragraph 611 of

 4     their brief, they say that when Borovcanin passes in front of the

 5     warehouse, killings are ongoing in its east room, which means necessarily

 6     that the killings in the east room are following immediately after the

 7     killings in the west room.

 8             Two important points of consensus on this scenario:  First, the

 9     Prosecution and Defence agree that a Muslim prisoner did seize a rifle,

10     had that rifle long enough to kill one Serb and injure another.  The only

11     difference between the Prosecution and Defence on this point is timing.

12     We say that this happened at the beginning of the shooting event.  They

13     say that this happened 20 minutes into the shooting.  So that's the first

14     point of consensus.

15             Second, the Prosecution's time-frame as to the start of the first

16     killing event, when it starts, and the timing of Borovcanin's -- the

17     likely timing of Borovcanin's arrival, is roughly accurate, with one

18     caveat.  If the radio call was made to Borovcanin, as they've argued in

19     their brief, between 5.15 and 5.20, and that's at 1990 of their brief,

20     then we suggest that he could not have arrived at the warehouse

21     instantaneously.  We suggest that he would not have arrived for

22     another -- at least another five or ten minutes, meaning that he likely

23     arrived at the warehouse - and it certainly cannot be excluded as

24     unreasonable - that he arrived between 5.20 and 5.30 p.m.  With the

25     exception of that caveat, and even that caveat is not mutually exclusive

Page 34564

 1     with the Prosecution position, we agree with that aspect of the scenario.

 2             Now, the essential question that that leads you to is:  What's

 3     going on at the Kravica warehouse at that moment?

 4             The Petrovic footage is the central piece of evidence in this

 5     case, and here's what the Prosecution says about it at paragraph 627:

 6             "The Petrovic video shows two Serb soldiers standing in front of

 7     the two open doors of the west room of the warehouse with their backs to

 8     the warehouse.  This provides a clear indication that there was no reason

 9     to guard or be threatened by any of the 500 Muslims in that room, meaning

10     all the Muslims in the west room of the warehouse were dead or

11     incapacitated at the time Borovcanin and Petrovic drove by the

12     warehouse."

13             This is at the core of their case for four reasons.  If true,

14     firstly, it would show that a mass execution, rather than a suppression

15     of a break-out attempt, had already occurred at the warehouse.  Second,

16     if true, it would imply or could imply that Borovcanin might have seen at

17     least some of the bloody aftermath of that massacre, and certainly or

18     presumably would have had to infer that something more -- that a

19     break-out attempt had occurred.  Third, if true, the casual demeanour of

20     the soldiers, which is recognised by the Prosecution on the Petrovic

21     video, which might otherwise suggest that, in fact, there's no shooting

22     going on at the warehouse at that moment, that's attributable instead to

23     the fact that everyone in the west room is dead or incapacitated.  And,

24     finally, if the doors are open and everyone is dead, this corroborates

25     156's testimony that the initial killing event was a massacre and was

Page 34565

 1     more or less continuous starting at 5.00 p.m., and again the relative

 2     stories of 156 and 111 are crucial to this case.

 3             So there you have, Your Honours, four critical inferences arising

 4     from this assertion that the west entrance of the warehouse is open.

 5             On Friday, the Prosecution came to you and told you something

 6     very different about the Petrovic footage, and I quote:

 7             " ... I've offered to enter in agreement of facts for the record

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

 9     as we could before, how many people are dead, except that group of 15,

10     20, 30, that we see scattered all the way from one side of this photo to

11     the next.  That's a lot."

12             Mistakes can happen in any large case, Your Honours.  There's no

13     doubt about that.  But let's put this in context.

14             This is the third trial at this Tribunal involving the Kravica

15     warehouse.  The Prosecution has been investigating this for more than a

16     decade.  This trial has been going on for three years.  The Prosecutor

17     recognises that these events are a trial within a trial and require that

18     level of evidential proof, and here we have a claim, a factual claim,

19     that is inextricably bound up with the assertion that 500 people are dead

20     or bleeding to death, thus casting into doubt that assertion on the eve

21     of closing arguments.

22             Four weeks ago, they filed their brief.  They said to

23     Your Honours, Trust us, you can safely convict Borovcanin and send him

24     away for the rest of his life, because we know what happened there.

25     Here's the scenario and here's a piece of the puzzle that supports that

Page 34566

 1     scenario.  You can safely infer that 500 people are dead.  There's a

 2     massacre taking place at this very moment on the video, and there is

 3     Borovcanin right in the middle of this bloodbath.  Well, as it turns out,

 4     Your Honours, they're wrong, and now they've admitted they were wrong on

 5     that point.

 6             The gravity of this error is compounded by something the

 7     Prosecution did not see fit to mention to you last Friday.  In the last

 8     few days, the Prosecution has given us approximately 230 photographs,

 9     previously undisclosed, of the Kravica warehouse, including photos that

10     show fragments of metal doors at Glogova and photos of doors from the

11     warehouse complex, with door handles corresponding precisely to the

12     position and shape of the white marks on the Petrovic video at the centre

13     of the supposedly open entrance that the Prosecution said in its brief

14     was a window.  Some of these photos date back to 1999.  These are crime

15     scene photos.  Some of them are, as we now know, highly exculpatory, and

16     for years they've gone undisclosed.

17             Your Honours, you will never know just how close you came to

18     never hearing about the Prosecution's mistake.  I can't tell you how much

19     we hesitated to make the argument that we did in our brief, because we

20     could not determine with certainty what we were looking at in the centre

21     of that west entrance.  You can see the hesitation, though, in

22     paragraph 150 of our brief.  What I can tell you is this:  The

23     non-disclosure of those photos could easily, very easily, have been the

24     difference between this coming to light and this not coming to light.

25     You quite easily might never have heard the true story about the west

Page 34567

 1     entrance of the warehouse, and that, in turn, might have induced you to

 2     draw a dramatically wrong inference that a full-blown, bloody massacre

 3     must have been underway, rather than that this might have been the

 4     suppression of a break-out attempt.

 5             I suggest that this ought to give you very serious pause and

 6     concern about the overall reliability and trustworthiness of the

 7     Prosecution case.  It's not just the visible errors now that you have to

 8     worry about.

 9             The Prosecution said nothing more about this error during their

10     closing remarks, other than the passage that I've just quoted, implying

11     that it was no big deal.  It is a big deal, Your Honours.  It's a big

12     deal because of the non-disclosure.  It's a big deal because it's the

13     basis for claiming that 500 people are dead.  It's a big deal because

14     it's being used to prove that this was a premeditated massacre from the

15     beginning.  It's a big deal because this, in turn, was suggested to you

16     as the basis for you to draw the inferences about Borovcanin's state of

17     mind and knowledge.

18             Now, let's recap the argument again that was presented by the

19     Prosecution, because: A, the doors are open, combined with, B, these

20     soldiers walking casually in front of the warehouse; therefore, C, 500

21     people are dead inside or bleeding to death; D, Borovcanin is driving by

22     at that very moment; E, this indicates that Borovcanin is there in the

23     middle of a pre-planned mass murder; and, F, the Chamber should infer,

24     therefore, that either he intended this mass murder or is guilty of mass

25     murder for not intervening.  That's their case, or at least that was

Page 34568

 1     their case a month ago.

 2             And the Prosecution recognised that the inference that they have

 3     suggested was wrong in their remarks on Friday.  Let me repeat again what

 4     the Prosecution said in this regard on Friday:

 5             "... we cannot now conclude, as easily as we could before, how

 6     many people are dead, except that group of 15, 20, 30 that we see

 7     scattered all the way from one side of this photo to the next."

 8             That's an astonishing retreat at this stage of the proceedings.

 9     Here is the Prosecution admitting, acknowledging, in closing arguments

10     that as few as 15 prisoners may have been dead at the warehouse at this

11     point, abandoning the claim in their brief that at least 500 are dead or

12     bleeding to death.

13             The Prosecution change of position raises a number of other more

14     general questions that may be just as important as the issue of this

15     specific inference.  Do you know, Your Honours, with any precision,

16     having heard the Prosecutor on Friday, having said no more than just this

17     quotation, what other parts of the circumstantial case have now been

18     affected, what parts have been abandoned, what parts are now less

19     probable, what parts are intact?  More broadly, can a circumstantial case

20     like this, with a serious factual error at its core, be trusted?  Can

21     Your Honours have confidence in a case that changed in such a fundamental

22     way?  What is left of this case, whose central claim is that there's a

23     massacre ongoing while Borovcanin is there?

24             Now, Your Honours, the closed-doors issue does not prove, of

25     course, that there were no killings going on elsewhere in the compound at

Page 34569

 1     that moment, but here's what does prove that:  111 is in the east room of

 2     the warehouse.  No one disputes that.  At paragraph 611 and 1989, the

 3     Prosecution asserts that the executions are going on in the east room

 4     when Borovcanin passes by, which they say is at 5.15 to 5.20 p.m.  Much

 5     to my surprise, on Friday the Prosecution accepted 111's testimony that

 6     there had been, at a minimum, at a minimum, an interval of 30 minutes

 7     between the end of the shooting incident on the west side of the

 8     warehouse and the start of the massacre on the east side of the

 9     warehouse, a 30-minute interval.  And let's see exactly what the

10     Prosecutor said on this point, and I quote:

11             " ... Witness 111 clearly says that a half hour passed between

12     the shooting that he heard on the other side of the warehouse and the

13     time the shooting happened on his side."

14             And then a little further on, the Prosecutor says:

15             "What he's absolutely clear on is that it -- that his executions

16     happened half an hour after the ones that happened next to him, and we

17     know that this happened about 5.00 to 5.30, when the lull occurred."

18             I suggest to you, Your Honours, that the Prosecution is caught in

19     a fundamental contradiction here.

20             I'm told there's no B/C/S translation.

21             JUDGE AGIUS:  Yes, we have to check that.  Obviously, I'm not in

22     a position to know.  Do you have a translation?

23             All right.  So, Mr. Gosnell, can we proceed?  The problem seems

24     to have been solved, anyway, if it ever existed.

25             MR. GOSNELL:  Your Honours, I apologise.  I --

Page 34570

 1             JUDGE AGIUS:  It's okay, okay.  Go ahead.

 2             MR. GOSNELL:  I'm informed that when I started reading the

 3     quotation, that was when the B/C/S translation was lost.  So with your

 4     permission, I would simply like to repeat that.

 5             JUDGE AGIUS:  Repeat it, yeah.

 6             MR. GOSNELL:  Thank you.

 7             So here's what the Prosecutor said, and I'm starting at line 18

 8     from page 3425 [sic] of the transcript:

 9             " ... Witness 111 clearly says that a half hour passed between

10     the shooting that he heard on the other side of the warehouse and the

11     time the shooting happened on his side."

12             And, further at 34326, "what he's absolutely clear on is that

13     it -- that his executions happened half an hour after the ones that

14     happened next to him, and we know that this happened about 5.00 to 5.30,

15     when the lull occurred."

16             The Prosecution is caught in a fundamental contradiction here.

17     In their brief, the Prosecution said that the killings are ongoing in the

18     east room when Borovcanin passes by at between 5.15 and 5.20 p.m., but

19     now we hear the Prosecution accepting the testimony of 111, who was in

20     the east room at the time, that he heard an initial outbreak of shooting

21     on the other side of the warehouse.  That lasted half an hour, so this is

22     the time-frame between 5.00 and 5.30 cited by the Prosecutor, and that

23     then there was a half-hour pause before the shooting commenced on his

24     side of the warehouse.  But taking the Prosecution's current timeline,

25     accepting 111's testimony, that means that the killings in the east room

Page 34571

 1     did not start until about 6.00 p.m.  And then if you go back to the

 2     timeline in their brief, that's 40 minutes after Borovcanin is supposed

 3     to have been there.  And what's more important than exact times, because

 4     everybody recognises, as they should, that 111 might not be absolutely

 5     precise about times?  But bear in mind two things:  One, what's essential

 6     here and what can't be disputed is the sequence of events as they follow

 7     one another; and, two, in assessing that sequence, what you're asking

 8     yourselves is:  Can I exclude the possibility that Borovcanin was not

 9     there during that interval, can I exclude that based on the evidence?

10     More generally, I have to say I don't know now what the Prosecution

11     position is.  Were the killings ongoing in the east room at 5.15 to 5.20

12     or weren't they?

13             And the Prosecution is confronted with another even more serious

14     problem by accepting 111's testimony about this half-hour interval, about

15     the fact that there was this interval, whether it was 20 minutes, 40

16     minutes.  They simply cannot now credibly exclude the possibility that

17     Borovcanin was there during that interval, that that's when he passed by

18     the warehouse.  They can't tell you with a straight face that they know

19     with any degree of certainty the duration of that first outbreak of

20     shooting that the Prosecution says was on the west side of the warehouse.

21     PW-111 says it was 30 minutes.  He might have slightly overestimated.

22     Djukanovic says it was 15 minutes.  Djukanovic, of course, is a Serb, but

23     take a look at his evidence, take a look at his biases, take a look at

24     the way that he answered questions, and ask yourselves whether on that

25     issue Djukanovic would have been biased, first of all, in favour of

Page 34572

 1     Borovcanin or, secondly, whether he would have had any idea whatsoever of

 2     the implication of his testimony at the time.  And I think when you look

 3     at that, Your Honours, even applying the most negative suspicions about

 4     the reliability of Serb testimony, you'd have to say that on that point

 5     he had no particular reason to lie.

 6             And, by the way, on this issue of the duration of that first

 7     killing event, the Prosecution strains very hard to explain how at least

 8     one of the Serb injuries -- one of the injured Serb soldiers managed to

 9     get down to Bratunac by 5.30.  That's an added piece of the puzzle that I

10     suggest ought to suggest to you that that first killing event is rather

11     short.  And once there's doubt about the duration of that first killing

12     event, Your Honours, I suggest you can't draw the inference that he was

13     there during that first outbreak of shooting.

14             Now, PW-111 does give two different estimates concerning the

15     duration of this interval between the two shooting events, and the

16     reasons are clear.  His testimony has to be read according to the trauma

17     that he obviously survived during this time-period.

18             But the length of the interval is reliably indicated by

19     Mevludin Oric.  Oric stops in front of the warehouse at dusk on a bus

20     from Konjevic Polje to Bratunac, full of Muslim prisoners.  The key

21     aspect of Oric's testimony is not what he can directly see is going on in

22     the warehouse at that moment.  The key aspect of Oric's testimony is that

23     he sees 400 to 500 Muslim prisoners gathered in front of the warehouse,

24     waiting to be loaded onto buses.  The buses and the bus that he was on

25     stops, and some or all of those 400 to 500 Muslim prisoners who are

Page 34573

 1     sitting there, waiting, are loaded onto that convoy of buses.  I suggest

 2     to you, Your Honours, that the presence of 400 to 500 Muslim prisoners at

 3     that place, at that time, in that way, is not consistent with an ongoing

 4     massacre of 1.000 people which the Prosecution situated in its brief,

 5     clearly situated, as having occurred between 5.00 p.m. and nightfall,

 6     following -- adopting 156's testimony as the correct version of events.

 7     And I make that submission whether the killings were sporadic or ongoing.

 8     Even if they were sporadic, that -- the presence of those individuals

 9     must raise a reasonable doubt as to whether or not that's what was going

10     on at that time.

11             And if we follow Oric's testimony, then what does that interval

12     tell you?  For that matter, what does the existence of any interval of

13     any duration tell you?  Well, I suggest that it shows you several things

14     about what did happen or what may have happened, because that's the

15     standard that we, on the Defence side, are required to discharge, what

16     may have happened, what reasonably may have happened.  One, that the

17     first killing incident may have stopped, following Djukanovic's

18     testimony, after a relatively short period.  That would suggest that

19     those killings were not pre-planned, that it was not a massacre, that, in

20     essence, it was the suppression of a break-out attempt.  And in our

21     brief, as you know, we discuss the contours of exactly what might --

22     where the line might be between the suppression of a break-out attempt

23     and something more, but we suggest to you that the genesis of this

24     shooting event was a break-out attempt and it can't be said with any

25     reasonable degree of certainty that that devolved into a massacre.

Page 34574

 1     Second, you cannot reasonably exclude the possibility that Borovcanin

 2     arrived during that interval and that when he stopped, he was told that

 3     there had been a break-out attempt.  And, third, if you do accept that

 4     there was an interval of some significant duration, you can't exclude the

 5     possibility that what happened at the warehouse, the mass execution that

 6     did occur there, was on the basis of subsequent orders, subsequent

 7     coordination, subsequent decision.  And we say that the best view of the

 8     evidence is that that occurred at nightfall.

 9             Now, the Prosecution referred on Friday, in order to rehabilitate

10     the claim that a large number of people had been killed during the first

11     shooting event, or to cast light on the nature of the first killing

12     event, asserted that there was evidence in this case that grenades were

13     used during that first event.  Well, Your Honours, this argument didn't

14     make it into their brief, and that's not surprising, because the evidence

15     supports no such thing.  They cited three sources.  You now have the

16     relevant passage from PW-111 on the screen in front of you.  I won't read

17     it.  I suggest to you that it's obvious, from the content of his answer,

18     that he's not talking in that response about what he heard specifically

19     at the warehouse.  And I suggest that to you because there's never been

20     any evidence, and there is no evidence in this case, suggesting that

21     there was an anti-aircraft gun there shooting in any direction, much less

22     a tank shooting artillery.  So I suggest he's clearly not referring there

23     to what's going on in the compound.

24             Second, Borovcanin does not say, contrary to what the Prosecution

25     asserted on Friday, that he heard detonations at the Kravica warehouse at

Page 34575

 1     that moment.  He does hear detonations at around this time, but it is

 2     simply not clear, from the interview transcript, where he believes these

 3     detonations are coming from.  Finally, it's just not true that if you

 4     listen to the trial video, you can hear detonations from the Kravica

 5     warehouse at around this time.

 6             Your Honours, three years ago you heard the Prosecution say, in

 7     their opening statement at 493:

 8             "So this incident with the burned hands took place.  We're

 9     confident that it did, but not the way the Serbs say it did.  That, the

10     Serb version, is not reasonable."

11             Three years later, here we are.  I would suggest to you that the

12     Prosecution claim in its opening statement has not been substantiated.

13     In fact, this so-called Serb version is not the Serb version.  It can be

14     drawn most fundamentally from two Muslim survivors who have absolutely no

15     motivation to lie.

16             Now, Your Honours, I am about to proceed to a new topic, and so I

17     would ask that we adjourn.

18             JUDGE AGIUS:  Fine with us.

19             We stand adjourned until tomorrow morning at 9.00.  Thank you.

20                           --- Whereupon the hearing adjourned at 1.41 p.m.,

21                           to be reconvened on Thursday, the 10th day of

22                           September, 2009, at 9.00 a.m.