1 Monday, 14 September 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.04 a.m.
5 JUDGE AGIUS: Yes. 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: Okay, thank you.
12 For the record, all the accused are present. The presentation is
13 full house, except for Ms. Tapuskovic.
14 Mr. Haynes, your closing arguments, please.
15 MR. HAYNES: Thank you.
16 I apologise if you can't see me clearly. I'm not sitting back
17 here because the severity of this haircut won't stand too much close
18 scrutiny. We've decided to stay here out of a sort of nostalgia, really.
19 Having sat here for three years, we thought we'd finish here.
20 A few months ago, when I opened this case to you, I underlined
21 the themes that had been the Pandurevic defence and would continue to be
22 developed during the presentation of his case.
23 One theme was specifically not addressed; namely, that of his
24 character. Neither was it developed in the course of the final brief.
25 However, given the manner in which the Prosecution have addressed several
1 issues in their final brief, it seemed to me only appropriate that I
2 remind you of the substantial body of evidence within the case which
3 placed the few matters relied upon by the Prosecution into their proper
5 The matters I shall refer to in the following section of this
6 closing argument derive entirely from unchallenged oral evidence and the
7 testimony of witnesses admitted under Rule 92 bis without any requirement
8 for their attendance for cross-examination. It can thus, I submit to
9 you, be taken as unchallenged.
10 Vinko Pandurevic was raised in a farming community in a
11 multi-ethnic part of the former Yugoslavia
12 although aware of the different beliefs of his neighbours and school
13 friends, he was brought up to believe in the principles of brotherhood
14 and unity. It was the practice of his family to interact with their
15 Muslim neighbours on their respective feast days, to respect their
16 beliefs, and to cooperate in practical ways wherever possible. In the
17 submission of the Defence, his upbringing and beliefs are of peculiar
18 relevance in his case, informing, as they did, many of the decisions he
19 was to take during the war in Bosnia
20 He entered service with the JNA through the Military Academy
21 against his mother's wishes. It was the only practical solution to the
22 funding of his higher and further education, as his parents had no money.
23 Virtually all of his pre-war service, indeed virtually all of his adult
24 life prior to 1992, was spent in Slovenia, where he settled with his
25 young family and assimilated into local life and culture. There, he
1 developed his interest in socialist politics. It was in Slovenia that he
2 first commanded a unit. It was composed entirely of Slovenian
3 conscripts. His commanding officer, Tihomir Blaskic, a Croat, became his
4 best man or Kum. He learnt to speak Slovenian, contributed to local
5 journals and magazines, came to regard the area as his home, and was
6 loved and respected by his friends and colleagues there as much for his
7 own ethnicity as for his endeavours to blend in locally.
8 In considering his understanding of the situation of the ethnic
9 communities Bosnia-Herzegovina, as well as his own personal beliefs, it
10 is relevant, we submit, to remember that he had spent the 15 years prior
11 to the start of the war outside Bosnia
12 After the commencement of hostilities in Bosnia, Pandurevic was
13 deployed as part of a JNA unit in Visegrad. In spite of the occasional
14 insinuation in this trial by the Prosecution about Visegrad, no evidence
15 has been adduced, nor any suggestion made, which would cloud Pandurevic's
16 reputation as a man or a soldier during this period. The Defence has
17 adduced evidence, which will be referred to in due course, of actions
18 which speak only of his positive qualities during that period.
19 On the 18th of December, 1992, Pandurevic arrived in Zvornik to
20 assume command of the Zvornik Brigade. He was a 33-year-old first-class
21 captain. He was very young and very short of experience for such a role,
22 especially given the size of the Zvornik Brigade, both numerically and
23 geographically, which made it such a hard body to control. His effect
24 upon the operative efficiency of the Zvornik Brigade was almost
25 immediate. In truth, it had to be, because it and the region were in a
1 pallor state of security at the end of 1992.
2 Pandurevic tried to command the brigade pursuant to the rules and
3 to the structure of the Zvornik Brigade as much as possible in accordance
4 with military principles. He was perceived by his colleagues as a true
5 or real commander. He was strict, but also correct and even-handed, so
6 that other officers respected him and saw him as a real soldier. His
7 strictness was based, first of all, upon strictness towards himself and
8 then towards others. The discipline in the brigade was different when he
9 was there, as opposed to when he was absent.
10 Pandurevic treated all his soldiers equally, whether they were
11 professional soldiers or not. As a commander, he showed neither
12 favoritism nor prejudice. Milenko Jevdjevic recalled a combat situation
13 when Pandurevic sent his own brother and his headquarters administration
14 commander, together with Muslim porters who had work obligation, to take
15 ammunition to units at the front. Milenko Jovicic described him more
16 simply; he was just an extremely good person.
17 A phrase from General Krstic's evidence was put to Pandurevic in
18 cross-examination, where he was described as the best brigade commander
19 in the Drina Corps, one of the best commanders amongst his peers in the
20 army as a whole, a professional soldier in every sense of the word.
21 He was equally respected by the civilian population in Zvornik.
22 He was viewed as a very capable man of almost unique qualities, whose
23 ability to solve a problem without raising his voice was well known.
24 However, he was certainly not popular with the politicians or anyone in
25 the political leadership in Zvornik municipality. His rating with them
1 was not very good for all sorts of reasons, but mainly because he didn't
2 let them interfere in the command of the Zvornik Brigade, something that
3 they repeatedly tried to do, according to Miodrag Dragutinovic.
4 He was, of course, an extremely effective combat soldier. Those
5 who had the opportunity to work together with him in battle had a very
6 high opinion of him as a professional soldier. They saw him as a young
7 officer who, in the most effective way, put the knowledge he had gained
8 in his military schools into practice very well during the war. He had a
9 very high capability in the field of control and command of his units.
10 He was capable of rapid planning, rapid deployment, and rapid
11 implementation of an operation.
12 Moreover, he had the skill to size up a situation, carry out
13 preparations, and go into action in keeping with the situation on the
14 ground, and he acted energetically.
15 The Trial Chamber has heard at least three compelling examples of
16 Pandurevic's skills as a commander in battle. These were,
17 chronologically, Operation Mac 1, the taking of Ustipraca in June of
18 1993, the retaking of Zivko Brdo on the morning of the 10th of July,
19 1995, and the repulsion of the Croatian forces at Grahovo in the Krajina
20 in August of 1995. These military successes were often achieved in spite
21 of the poor quality of the units under his command or the tactical
22 ineptitude of his neighbouring units.
23 The Trial Chamber will doubtless have got the impression that
24 whoever he was dealing with, Pandurevic was not a man who suffered fools
25 gladly, and moreover he was never afraid of speaking his mind.
1 The Trial Chamber may or may not conclude that in describing some
2 of the non-governmental organisations present in Republika Srpska as
3 good-for-nothings - Prosecution brief 1311 - this aspect of Pandurevic's
4 character was well reflected. Nonetheless, throughout the entirety of
5 the war, Pandurevic's relationship with international organisations was
6 constructive and cooperative. His assertion that as a soldier he was
7 primarily interested in peace is credible and borne out by evidence of
8 his behaviour.
9 His pride in his relationship with General Morillon, a witness on
10 his 65 ter list, in the spring of 1993 was plain. Pandurevic complied
11 with the general's requests and ensured free movement and free passage
12 for General Morillon while he was carrying out his duties as a UN
14 His orders to the members of his unit as to how to deal with
15 members of the Dutch Battalion during Krivaja 95 were entirely proper and
16 completely unchallenged. He was an active participant in the execution
17 of the Dayton Peace Accords between November 1995 and his departure from
18 Zvornik, cooperating both with IFOR and the Bosnian Army forces.
19 In spite of his youth and inexperience, Pandurevic was neither
20 afraid to question orders which were, in his view, unjustifiable, nor to
21 act on his own initiative. He showed that not just on the 11th of July
22 in Srebrenica and in Bratunac, we maintain, nor just on the 16th of July
23 in Baljkovica, but throughout the war whenever the situation demanded.
24 The Defence invite the Trial Chamber to view that in the case of
25 Pandurevic, actions truly speak louder than words. In the submission of
1 the Defence, Pandurevic's actions in July 1995, in standing up to Mladic
2 and contravening his orders to destroy the column were neither isolated
3 nor borne of necessity, but were, rather, the concrete expression of his
4 character and integrity through his actions. To that end, the evidence
5 of Pandurevic's actions prior to the critical events of July 1995 is more
6 than mere character evidence. The types of evidence envisaged as being
7 relevant to culpability in the prior jurisprudence of this Tribunal do
8 not fall into this category. In those cases, it amounted to no more than
9 evidence of a lack of prejudice or general good character.
10 The episodes about which this Trial Chamber has heard during the
11 course of this case relate directly to the question of --
12 THE INTERPRETER: Thank you for slowing down when reading.
13 MR. HAYNES: -- propensity and state of mind.
14 JUDGE AGIUS: Mr. Haynes, you're being invited to slow down a
15 little bit for the sake of the interpreters, please.
16 MR. HAYNES: Thank you very much. I will.
17 The episodes about which this Trial Chamber has heard during the
18 course of the case relate directly to the question of propensity and
19 state of mind. Where there is an issue, for example, as to the
20 motivation of the accused in letting the column pass at Baljkovica, the
21 Defence contend that it is relevant to take into account the fact that on
22 prior occasions Pandurevic behaved in a precisely similar fashion, when
23 neither he, nor his forces, were at any risk.
24 I'm going to list now just a few of the episodes of Pandurevic's
25 behaviour which we will ask you to take into account in determining his
1 motivation and state of mind in July of 1995.
2 In April of 1992, in Visegrad, Pandurevic protected Muslim
3 civilians from Serb paramilitaries, disarming the latter and forcing them
4 to return to Serbia
5 pledged to protect them; that this may have been a piece of evidence
6 which went unnoticed. It derives from 7D1191, the 92 bis witness
7 statement of Guso, Midhat, and I will read from it:
8 "Soldiers of the Uzice Corps of the JNA Yugoslav National Army
9 asked locals to declare arms in their possession. They came up to my
10 house. They did not go inside. One of the soldiers started as if he
11 were to enter the house and began to act in a rough manner. Another
12 soldier then approached him. He did not allow him to go inside, saying,
13 'Act decently or I will report you to Vinko.' When I heard the name
14 Vinko, I did not know who that referred to. I assumed that it was a
15 reference to an officer who does not permit violent and arbitrary conduct
16 towards Muslims. At that time, I did not know Vinko Pandurevic. I saw
17 him for the first time two or three days after the event that I
18 recounted. I note that the unit under Vinko Pandurevic's command had
19 kitchen at the house of one of my brothers, where it prepared food for
20 the troops. Pursuant to Vinko Pandurevic's order, the food from that
21 military kitchen was distributed also to us, residents from the village."
22 He goes on at paragraph 11 to say:
23 "In view of the circumstances, it is my belief that the members
24 of this paramilitary group would have killed those of us standing around
25 the post office but for the fact that Vinko Pandurevic prevented them
1 from doing so."
2 Shortly after becoming commander of the Zvornik Brigade,
3 Pandurevic established contact with the commander of the opposing forces,
4 the ubiquitous Semso Muminovic. They quickly established a hot-line,
5 their contacts led to regular prisoner exchanges, an agreement on the
6 shelling of certain inhabited areas, an agreement for cease-fire of
7 sufficient duration to permit each side to sew and reap crops
8 bi-annually. On the first occasion of such a cease-fire, the arrangement
9 was almost entirely to the benefit of Muslim forces, who were under
10 attack by Croat forces and facing famine, again a piece of evidence that
11 might have escaped your attention, so I'll read from it. It's 7D1191,
12 the 92 bis witness statement of Semso Muminovic:
13 "At that meeting, I explained to Vinko Pandurevic the difficult
14 situation we were then facing due to lack of food. At that time, Muslim
15 forces were engaged in a conflict with the Croat Defence Council. For
16 that reason, the delivery of food supplies from Tuzla was difficult. A
17 food supply crisis appeared imminent, affecting both civilians and army
18 personnel in that area. I suggested a truce to Vinko Pandurevic in the
19 duration of one month to allow the spring harvests preparations to be
20 made. By truce, it was understood that there would be no shelling of
21 inhabited or uninhabited areas or roads; in other words, that there would
22 be a complete cease-fire. In response to my proposal, Vinko Pandurevic
23 said that he did not have his command's approval, but that regardless, he
24 would agree to the proposed truce on his own responsibility. He said,
25 'Semso, the truce is in effect from the day after tomorrow at noon. Let
1 the people work in the fields, whatever may happen to me.'"
2 In late January of 1993, Pandurevic made an arrangement for the
3 daily passage of Muslims at or near Kamenica. The arrangement allowed
4 for those who were trapped by combat to pass safely.
5 During Operation Mac 1 in June of 1993, Pandurevic's unit,
6 through the efficiency of its actions, trapped several thousand Muslim
7 forces at Ustipraca. They had advanced far more rapidly than their
8 neighbouring units, and because of the dominance of the position they had
9 taken, the Muslim forces were completely at their mercy. Notwithstanding
10 this and completely without the authority of his superior command,
11 Pandurevic allowed all soldiers, civilians, vehicles, and arms to leave
12 the area, in quotations "without a single bullet being fired." This was
13 done at the initiative of Pandurevic by direct communication with the
14 opposing commander, Ahmed Sejdic. These last two incidents will be
15 returned to in greater detail in due course, as the Prosecution brief has
16 confused the two episodes in its submission.
17 The unanimous experience of those who worked with Pandurevic as a
18 commander was that his treatment of his and his instructions as to the
19 treatment of prisoners of war was at all times consistent with the Geneva
20 Conventions. Upon his return to Zvornik on the 15th of July, 1995
21 orders that prisoners were to be kept alive at all costs were well known.
22 Symbolically, when, on the morning of the 16th of July, a Muslim
23 communications officer was interrogated by his chief of staff, that man
24 had his wounds treated, was fed, and released safe and sound. Moreover,
25 on the 18th of July, a group of seven to ten Muslim teenagers was at the
1 4th Battalion command post tasked by somebody to dig fortifications.
2 THE INTERPRETER: Thank you for reading slowly.
3 JUDGE AGIUS: Again, Mr. Haynes, my attention has been drawn to
4 ask you to read more slowly, please.
5 MR. HAYNES: I'm sorry.
6 Pandurevic immediately told these men to stop digging, ordered
7 Dragan Jokic to guide them through the minefield to the safe Muslim side,
8 and contacted Semso Muminovic and told him he was sending the teenagers
9 back to him. He was to call Pandurevic back and let him know if they had
10 arrived safe and sound. In due course, he did so.
11 It is well documented that a large number of prisoners arrived at
12 the Batkovici camp in the latter half of July 1995. They came from the
13 Zvornik Brigade detention facilities. Moreover, it is plain from the
14 evidence that Pandurevic was active in securing their transfer to that
15 place for exchange.
16 During the course of this trial, a number of witnesses have
17 expressed their view as to the effect which Pandurevic's absence had
18 during the crucial periods of the indictment, upon unfolding events.
19 Perhaps most graphically, Lazo Ristic said:
20 "I'm still not clear why this was done in Zvornik when our
21 commander was absent, and in a way it so happened that they came through
22 the command of our battalion, where the commander was also absent. If
23 they had been there, I believe that things would not have happened the
24 way they did."
25 As an example of the command culture within the Zvornik Brigade,
1 it should be remembered that Lazar Ristic, who spoke elsewhere in his
2 evidence about the guiding example of Pandurevic's command, withdrew his
3 men from Orahovac when he discovered a murder operation was in process.
4 As was developed in our brief, it is not merely Pandurevic's
5 absence from Zvornik during the critical days of July and September of
6 1995 which is important. Of equal if not greater importance is his
7 absence from the taking of crucial decisions; for example, the decision
8 to transfer prisoners from Bratunac to Zvornik for execution, taken on
9 the evening of the 13th of July, and the decision to disinter and rebury
10 bodies buried in the Zvornik area, taken sometime in late August or early
11 September of 1995. Pandurevic's absence from Zvornik at those times and
12 from those decisions making processes was accidental and enforced. It
13 was, however, well known to those involved in taking those decisions.
14 Now, I have taken some little time in outlining this evidence to
15 you because, in our submission, it goes directly to six issues raised in
16 the Prosecution brief. It goes, firstly, to the question of the
17 credibility of Vinko Pandurevic as a witness. It goes, secondly, to
18 counter any suggestion that this is a man who has ethnic bias. It goes,
19 thirdly, to illustrate the reality of the command climate that existed
20 within the Zvornik Brigade. It goes, fourthly, to illustrate the way in
21 which he and those subordinate to him habitually treated prisoners of
22 war. It goes, fifthly, to the question of how you weigh up the evidence
23 concerning his actions in allowing the column to pass on the 16th of
24 July. And it goes, lastly, to the question of genocidal intent, given
25 the way in which the Prosecution have put its case in that regard. We
1 submit that if you give proper weight to the evidence I've outlined in
2 this short section of these oral arguments, that you will reject many or
3 all of the Prosecution's submissions about Pandurevic in those six
5 Now, to switch horses for just a moment, I would like to take
6 just a few moments to analyse the purpose of this exercise. This is, in
7 truth, a sweeping-up operation. I have been putting the same case for
8 three years, as I think everybody recognises. I'm not going to repeat it
9 all today. However, I wish to make a few observations.
10 Pandurevic's case was plain from the cross-examination of
11 Prosecution witnesses. The themes we have developed could not have been
12 clearer. Pandurevic appeared as a witness on his own 65 ter list filed
13 in April of 2008. His was the last case, and accordingly by the time he
14 gave evidence, the areas where he contradicted other parties' cases had
15 completely crystallised.
16 The Prosecution case does not meet Vinko Pandurevic's case, nor
17 even comment upon it, in a number of very material respects. To give
18 some of the starkest examples of where the Prosecution does not comment,
19 either in its final brief or its closing submissions upon the case for
20 Vinko Pandurevic, I'll pick just four: One, that Pandurevic had no
21 effective control of the Zvornik Brigade between the 4th and the 15th of
22 July, that this is an evidential, not a legal consideration, and you'll
23 find not one submission in the Prosecution brief addressed to that issue.
24 Two, the legal status of the Yugoslav National Army brigade rules, a
25 theme we developed in great detail both during evidence and in our
1 submissions, not one comment. Three, the allegation that Pandurevic
2 returned to Zvornik on the morning of the 12th of July, something which
3 PW-168 was effectively commissioned to say during his evidence here, but
4 not a theme developed in the Prosecution brief at all. And, four, the
5 biggest gaping absence of all, not a word about the zone of
6 responsibility on which so much of the Prosecution's case hinges.
7 We were laughed at, frankly, for causing PW-168 to sit there with
8 enormous maps and join the dots and explain that the Prosecution zone of
9 responsibility theory was nonsense. To find not one word addressed to
10 that issue in the Prosecution brief is startlingly surprising, to say the
12 We submit boldly that where the Prosecution does not deal with
13 issues such as this, raised by the Defence throughout the trial and in
14 its brief, to which the Prosecution has the right to reply in its oral
15 arguments, as a matter of natural justice, those issues simply have to be
16 resolved in the favour of the defendant or the accused. But matters
17 don't stop there.
18 In opening this case, I specifically challenged the Prosecution
19 and all parties to put their case to Vinko Pandurevic when he gave
20 evidence. I made a bit of a joke about it at the time, aligning the
21 practice of putting your case to my Englishness, but it's not an English
22 thing; it's in the Rules of this Tribunal. It's Rule 90(H)(2), and I
23 don't imagine you need reminding of that. But what Rule 90(H)(2) says
25 "It is in the cross-examination of a witness who is able to give
1 evidence relevant to the case for the cross-examining party, counsel
2 shall put to that witness the nature of the case for the party for whom
3 that counsel appears which is in contradiction of the evidence given by
4 the witness."
5 You may think that in the case of an accused giving evidence on
6 his own behalf, the Rule has particularly sound reasons. Firstly, that
7 you, the Trial Chamber, are entitled to see the reaction of an accused to
8 an accusation put to him. Secondly, you're entitled to see his answer.
9 And, thirdly, that everybody accused of criminal behaviour is entitled to
10 have an opportunity to answer the accusation which is a central part of
11 the Prosecution's case.
12 The Prosecution, itself, agrees that the Rule is important and
13 criticises, I think, most of us for failures at some stage during the
14 case to challenge one thing or another with odd witnesses. But given
15 especially that Pandurevic gave evidence as the last substantial witness
16 in the Defence case and that, as the Prosecution have acknowledged, there
17 was no stopwatch on cross-examination, the issues were absolutely
18 crystallised. There is simply no excuse for failing to put to him
19 significant aspects of the Prosecution case.
20 We have analysed closely the allegations now made in the
21 Prosecution's final brief and contrasted them with the cross-examination
22 of Vinko Pandurevic. The Prosecution's final brief is simply replete
23 with assertions that were not put to Pandurevic in cross-examination. We
24 simply don't have the time to list them all, but where relevant as we go
25 through the relevance, we will highlight assertions in the final brief
1 not put to Pandurevic in cross-examination. For present purposes and
2 simply to highlight the evil in this, I'll illustrate that to you with
3 three examples.
4 The first: In paragraph 1537 of the Prosecution's brief, the
5 Prosecution avers that the performance of the reburial operation on the
6 27th of September is also consistent with the Zvornik Brigade's use of an
7 unusually large amount of D2 diesel on that date, 3.870 litres, without
8 any description in the daily combat report of legitimate engineering
9 works in the Zvornik Brigade zone of responsibility. This is, indeed, an
10 apparently compelling point and one which might suggest that the reburial
11 operation was in full swing on the 27th of September, and that Pandurevic
12 could not have failed to know about it. However, the document upon which
13 this assertion is based bears a little closer analysis.
14 And I'm not going to call much into e-court during the course of
15 these submissions, but I will call this. It's 7D681, and we'll need to
16 look at paragraph 6, please. Thank you.
17 At paragraph 6, as you'll see, records in standard pro forma
18 terms consumption, and every regular combat report has that at
19 paragraph 6. Let us all agree that 3.800 litres is a lot of diesel to
20 consume in one day. Indeed, it's probably far more than ten digging
21 machines operating all day could consume. But let's look at paragraph 6
22 a little more closely. It seems that on that day, diesel was not the
23 only commodity that was being excessively used. If 3.800 litres of
24 diesel is a lot, 12.600 7.62-millimetre rounds is the sort of amount of
25 rate of ordinance discharge you would have expected on the Somme in 1914.
1 It's massive. A thousand 12.7-millimetre rounds, 320 30-millimetre
2 rounds, 20 122-millimetre shells, 10 130-millimetre shells. We submit
3 that that level of use of fuel and ammunition cannot possibly reflect the
4 use of materials on the 27th of September. So what does it mean? The
5 answer is: I don't know. But if this document had been put to
6 Pandurevic when he gave evidence, and it had been suggested to him that
7 this amount of fuel had been used for reburials on that day, he might
8 have been able to explain it. He might, for example, have said that
9 sometimes under paragraph 6 the brigade told the corps command what it
10 needed. If this document had been shown to PW-168, he might have been
11 able to say that this fuel and ammunition related to the fuel and
12 ammunition required by the 2nd Drinski Brigade which left for the Krajina
13 the day before, the 26th of September. If this document had been put to
14 Sreten Milosevic, the assistant commander for logistics, responsible for
15 such matters, he might have offered yet another explanation, perhaps that
16 the amounts were what the brigade had in stock. But this document was
17 shown to nobody by the Prosecution. It was simply used as the basis for
18 a submission in their final brief. And we submit that the inference they
19 require you to make or invite you to make in the circumstances is simply
21 A second example of a matter not being put: In paragraphs 1340
22 to 1343 of the Prosecution brief, the Prosecution makes, apparently, four
23 assertions: One, that members of the Drina Wolves were in Potocari; two,
24 that those members of the Drina Wolves were part of Tactical Group 1;
25 three, that they were under the command of Vinko Pandurevic; and, four,
1 that they would have reported back to him what they saw in Potocari.
2 It's clear, the answer. Not one of those propositions was put to
3 Pandurevic when he gave his evidence, not one. Had they been, who knows
4 what he might have said. He might have said, I took a roll-call of my
5 men on the 12th of July, and they were all there, so these people
6 couldn't have been from Tactical Group 1. He might have said that Krstic
7 had asked him for two or three men to be at his disposal on the morning
8 of the 12th of July in Potocari, and these were them. But we'll never
9 know because it was never put.
10 The evidence in the case is that the Drina Wolves were a unit
11 comprising about 360 men. You'll get that from P382. The evidence is
12 absolutely clear and unchallenged. They were in the Drina Corps unit
13 under the direct command on the 12th of July of General Zivanovic. In
14 July of 1995, various elements of the unit were deployed in the Sarajevo
15 theatre - see footnote 567 of our brief - and with Tactical Group 1.
16 About 120 of them were part of Tactical Group 1. By necessary inference,
17 a number of them were not deployed at all on the 12th of July. There
18 simply is no evidence that even if there were odd members of the Drina
19 Wolves in Potocari on the 12th, that they were under Pandurevic's command
20 or that they were the Drina Wolves that were part of Tactical Group 1.
21 Under the principle that the senior officer present is in command of a
22 mixed unit, then Mladic must have been in command of what was going on in
23 Potocari, or Krstic at worst.
24 As to the suggestion that the Drina Wolves were in Potocari, in
25 our submission, it doesn't make any sense. You don't send your elite
1 fighting unit to take part in crowd control. The units that were in
2 Potocari were security officers and police units, not fighting units.
3 Self-evidently, Pandurevic wasn't in Potocari, himself. So how could
4 they get their orders from him if he wasn't there? Moreover, there is
5 virtually nobody who is not on some piece of film or still photograph.
6 Potocari was filmed from a number of sources and perspectives, and had
7 there been any Drina Wolves members, they would have to have been on
8 films or photographs.
9 Again, the failure to put this suggestion or these suggestions to
10 Pandurevic simply makes it impossible for you to draw the inference,
11 adverse to him, that these men were Drina Wolves, were from his unit,
12 were under his command, and would have reported to him. It's a complete
13 false theory.
14 The third suggestion which I raise by way of an example appears
15 in paragraph 1337 of the Prosecution's final brief. That reads as
17 "Pandurevic's admission that units under his command, as opposed
18 to the units from the 2nd Romanija Brigade or the 1st Birac Brigade, took
19 the features around the town of Srebrenica
20 itself is significant, because the UN's Bravo Company compound and the
21 Muslim population in it were shelled at around noon on the 11th of July,
22 injuring several people. Pandurevic knew that these indiscriminate
23 shelling attacks were occurring and were carried out by the units under
24 his command."
25 This assertion is bordering on the outrageous. Nothing of this
1 was put to Pandurevic. Had it been so, he might have been able to
2 explain that the timings were all wrong, that his units didn't take the
3 surrounding features until much later in the afternoon, that the town by
4 then was empty, that his artillery units had been withdrawn somewhere
5 else, or just simply that it is not true, that he didn't know these
6 things, that units under his command did not shell Compound Bravo. There
7 is simply no basis for even inviting this inference.
8 In the circumstances, and I do not apologise for taking some
9 little time with these three examples - I can't do it with every one of
10 them - but as we go through the evidence I will be inviting you to the
11 view that where an accused has given evidence on a particular issue and
12 the Prosecution fails to challenge it, he is entitled and the
13 Trial Chamber is entitled to regard that as uncontested, and assertions
14 in the final brief by the Prosecution on matters which haven't been put
15 to Pandurevic ought simply to be disregarded. Unless that is the
16 consequence on the breach of the Rule, there is no point in having the
17 Rule at all.
18 The evidence of Vinko Pandurevic stands to be judged by exactly
19 the same standards as that of any other witness. I don't say that to
20 insult the intelligence of professional judges, but he is no more and no
21 less credible by reason of his standing accused on this indictment.
22 In paragraph 1279 of the Prosecution's final brief at the foot of
23 page 362 and going over to page 363, there is an assertion by the
24 Prosecution which purports to be supported by legal authority. Whilst
25 the Defence accept that the Prosecution is perfectly entitled to invite
1 the Trial Chamber not to believe the accused on some or all of his
2 evidence, to submit that the Trial Chamber should not do so as a matter
3 of law, where it is uncorroborated, is not only wholly disingenuous, it's
4 irresponsible and incorrect.
5 It is, of course, the law in many jurisdictions that an accused's
6 evidence against a co-accused needs corroboration, but the decision in
7 Delalic was based on its own particular facts; in particular, that the
8 accused concerned who gave evidence had a mental state that was seriously
9 in issue. And to invite you to extend that principle to the lengths that
10 it is suggested in paragraph 1279 is quite wrong.
11 Pandurevic's credibility is for you to judge. You saw him and
12 heard him, and you are able to judge whether his answer on any given
13 issue is both truthful and reliable. And we do invite you to look again
14 with care at his evidence and, in particular, the answers he gave in
15 cross-examination, in detail. His evidence is substantially consistent
16 with all the other evidence in the case, leaving aside most notably,
17 perhaps, the evidence of PW-168. It is a central irony of this case that
18 some of those who question his credibility concurrently present cases
19 which necessarily involve them alleging that 8, 10, or 14 witnesses,
20 including their former colleagues and friends, have conspired to lie
21 about them, that documents which implicate them are forged, and that
22 their unwittingly captured radio conversations were either incapable of
23 capture, were mis-transcribed, or are now misconstrued. Little wonder
24 that the inconvenient evidence of Pandurevic against them is added to
25 their conspiracy theories.
1 Pandurevic's evidence is heavily relied upon both by the
2 Prosecution and other parties in this case. Listing every footnote would
3 be boring, but we invite you to note how frequently his evidence is said
4 to be truthful in different parts of both the OTP and other Defence
6 Pandurevic's evidence involved giving details of events which he
7 was not compelled to do by the Prosecution case and which might have been
8 taken to be incriminating. To give you a few examples: That soldiers
9 under his command were responsible for the taking of UN observation
10 posts; that he met and spoke to General Krstic on a number of occasions,
11 not proved as part of the Prosecution's case; that he learnt of the
12 reburial operation shortly after his return to the Zvornik Brigade in
13 late September; that these, we say, supplement and support his general
14 credibility. Please also remind yourselves of the points we made in our
15 final brief as to his credibility, about his stance on intercepts,
16 contemporaneous documents, and the general conduct of his case.
17 Paragraph 1279 of the Prosecution brief, after misrepresenting
18 the law, as we have submitted, on the treatment of the accused's
19 evidence, goes on to list a series of what I will call areas of dispute
20 in the case between the Prosecution and Pandurevic, which it terms
21 deliberate falsehoods. The Defence cautions strongly against the
22 approach advocated by the Prosecution. The Trial Chamber, of course,
23 knows that these are the points where the Prosecution and the Defence
24 disagree. That does not make them deliberate falsehoods. These are the
25 issues for you to decide. We reiterate the points that by giving his
1 evidence, the Prosecution's burden of proving their case and, at the same
2 time, disproving his evidence, is the harder. It is not a deliberate lie
3 to say you disagree with the Prosecution case.
4 Now, an extraordinary amount of time has been devoted by the
5 Prosecution, in its final brief, to 1993. At what relevance those
6 passages and further submissions made the other day by Mr. McCloskey have
7 is unclear.
8 At paragraph 1281 of its final brief, the Prosecution state that
9 its case does not depend on Pandurevic's role in the VRS campaign in
10 1993. It goes on to say, however, Pandurevic spent a significant amount
11 of time testifying about his participation in these events,
12 misrepresenting his role, and putting forward a sanitised and misleading
13 version of events. It concludes by saying that the materials set forth
14 in paragraphs 1282 to 1312 demonstrate his lack of credibility as a
15 witness as well as his knowledge and intent with respect to the charged
16 JCEs. On the face of it, the only issue all this material could go to,
17 it not being part of the Prosecution case against Pandurevic, is to his
18 credibility. However, we're not naive. Directive 4 and the
19 Spring Offensive has always been at the heart of the Prosecution's case,
20 and to suggest that Pandurevic would not have been cross-examined about
21 it, had he not raised it first, is unworthy of a straightforward
23 Apart from anything else, Pandurevic's role in Kamenica and
24 Konjevic Polje was first put to a witness in June 2007 by the Prosecution
25 and raised in detail with Milenko Jevdjevic two months before he
1 testified. We will now briefly address those allegations in this part of
2 the Prosecution's brief.
3 Paragraphs 1285 to 1288 discusses the issue of Kamenica.
4 Kamenica was not part of Pandurevic's case from the beginning. You can
5 see that from the 65 ter summaries served in his case. No reference was
6 made to it in the opening of his case, and certainly at no time have
7 either he -- has either he or I described him as the hero of Kamenica.
8 The evidence about Kamenica came out as a result of the Prosecution's
9 cross-examination of Milenko Jevdjevic at T-29718, which the Defence then
10 tidied up in re-examination by putting into evidence the regular combat
11 report 7D1006. This was a month before Pandurevic commenced to give
12 evidence. The matter having been raised in that way, it was inevitable
13 that Pandurevic would deal with it in his own evidence and explained what
15 Kamenica has been fundamentally misunderstood by the Prosecution.
16 This was not the passing of a column such as took place, for example, in
17 Baljkovica. This was an arrangement for a daily passage along a safe
18 corridor. There is abundant evidence that at the time of this operation,
19 Kamenica itself was uninhabited and had been for some time, and you can
20 find that at T-12803, the evidence of Miodrag Dragutinovic, and T-0799,
21 the evidence of Vinko Pandurevic.
22 Read chronologically, the problems with the passage of lost
23 people across a combat zone first came to Vinko Pandurevic's attention on
24 the 30th of January, 1993, and you can see that from the document put to
25 him, P4233. As a result of that, a radio announcement was made, and he
1 announced directly to those who wished to cross the combat zone that they
2 could do so between certain hours of the day. You will get that from
3 P4229 and 7D1006, the regular combat report for the 1st of February. You
4 will note that that document was dispatched at 11.40 in the morning.
5 At 9.00 that night, General Zivanovic sent a report from the
6 corps to the Main Staff. He announced that he had taken the decision to
7 create a safe passage. That, in fairness, was put to Pandurevic when he
8 gave evidence. It wasn't a document that he had written, but he came up
9 with the obvious explanation, that he reported to General Zivanovic what
10 he had done and General Zivanovic then took upon the decision for
11 himself. The chronology makes that perfectly logical.
12 By contrast, the incident at Ustipraca five months later has been
13 part of the Defence case from the very outset, and you will see that from
14 our 65 ter list. The episode which Pandurevic relied upon in his
15 evidence as illustrating an identical situation to that he faced at
16 Baljkovica was the safe passage allowed there. This incident was
17 described in great detail by four witnesses: Pandurevic, himself; Dragica
22 (redacted). Pandurevic, himself, wasn't challenged about his
23 actions at Ustipraca. Thus, it was never suggested to him that he had
24 ever been anything other than truthful or accurate about these events.
25 When you read or re-read the Prosecution's final brief about the
1 events of 1993, you will find not one word about Ustipraca. It has
2 simply been ignored. And the Defence submit that it is deliberately
3 ignored, Ustipraca, and deliberately sought to confuse you by confusing
4 that with the episode of Kamenica which it raised and pursued. It cannot
5 be an accident that the former is referred to so often and the latter not
6 addressed at all. That is because we submit that the Prosecution is
7 fully aware that Pandurevic's behaviour on that occasion is a highly
8 relevant and pertinent consideration in your concluding how to determine
9 his actions at Baljkovica.
10 Paragraphs 1289 to 1297 deal with allegations that in the early
11 spring or perhaps late winter of 1993, Pandurevic was responsible for
12 shelling Muslim civilians. We make four brief points: Firstly, that
13 every document referred to in those paragraphs references mixed military
14 and civilian targets; P409.70, referenced by Pandurevic in his own
15 evidence, deals with the legality of mixed military and civilian targets
16 and attacks upon them; thirdly, the recording of these events accurately
17 stands to Pandurevic's credit, not to his demerit; and, fourthly, the
18 fact that the Drina Corps removed references to civilians from its own
19 reports is, frankly, irrelevant when considering Pandurevic's intentions
20 or credibility.
21 At paragraph 1295, an episode at Konjevic Polje is raised. We
22 would point again simply to four matters. The reference in the report in
23 paragraph 1295 is to civilians being caught in the fire. There is an
24 obvious inference from that that civilians were not the target of the
25 fire. Secondly, it is not a proper inference to draw that a unit under
1 the control of Pandurevic fired two isolated shells after 1530 in the
2 afternoon. Three, the report 5D1323, relied upon by the Prosecution, is
3 dated the 15th of September, 1993, eight months after the incident
4 described. The entire document describes military operations between
5 January and August 1993, without any specification as to dates. There is
6 no evidence that it is referring therein to the incident of the 12th of
7 February covered by this instant and this passage in the Prosecution's
8 brief. And, fourthly, in spite of his own evidence, the evidence
9 discloses that once contacted, the shelling did stop.
10 Paragraphs 1298 to 1306 of the Prosecution's brief deal with
11 allegations relating to the burning of Muslim villages. We submit that
12 the suggestion that Pandurevic's troops burned houses is based on the
13 most tenuous evidence imaginable. He has described in great detail the
14 military campaign that he participated in during this period. He has
15 denied that his units burned houses or destroyed mosques. The evidence
16 that someone else reported to General Zivanovic that houses were burning
17 on his particular axis of attack, and that the Zvornik Brigade cleared
18 away an already-destroyed mosque one year after the event, doesn't get
19 close to surmounting that evidential obstacle.
20 There is no evidence of the destruction of habitat in any areas
21 where Pandurevic was principally involved. Kamenica, Konjevic Polje,
22 self-evidently, since he was active in preventing it, Ustipraca,
23 Visegrad, Zeleni Jadar, Zivkovo Brdo, Rajna, Bojna, all the areas where
24 you have heard he carried out combat operations, there is no evidence of
25 the burning of any habitat. And don't you think there would have been
1 some evidence if those things had happened?
2 As to the relevance of these events, over and above a challenge
3 to his credibility, we submit that the Prosecution position is illogical.
4 Just because an accused has the temerity to explain his involvement in
5 events he would undoubtedly be cross-examined about doesn't make them
6 relevant to establishing his participation in one or both of the alleged
7 JCEs. The obvious corollary would be if he stayed silent about these
8 matters, they wouldn't be relevant, and that can't be correct.
9 I confess to this day I am still not clear where it is that I
10 will find the alleged illegal purpose of Krivaja 95. It has been
11 variously suggested to exist in the six strategic goals of May 1992,
12 Directive 4 from November 1992, Directive 7, Drina Corps Operational
13 Directive 7.2, and the combat order itself.
14 I must be going very fast.
15 In our submission, it is unthinkable that a court would determine
16 the individual criminal responsibility of a soldier, professional or
17 otherwise, by reference to the political doctrine or strategic objectives
18 of his native country, especially those espoused at the start of ethnic
19 conflict or at the height of the violence between two communities. To do
20 so would come preciously close to finding that all Serbs had and
21 continued to have throughout the duration of the war the common intent to
22 commit genocide and/or crimes against humanity.
23 Moreover, to rely upon the utterances of government or strategic
24 command from 1992 ignores all temporal considerations. It is as if two
25 years didn't happen, there were no cease-fire agreements, no peace
1 negotiations, the international community was not involved, there were no
2 periods of peace, there were no flagrant breaches of the terms of the
3 agreements by the enemy which more immediately necessitated the operation
4 with which we are concerned. It also completely ignores the reality of
5 the situation in Bosnia
6 The Prosecution perennially speaks in its final brief and in its
7 submissions of a brutal campaign in 1993 or a violent VRS campaign. The
8 beginning of this war was violent. We will concede that. But this Trial
9 Chamber only has the sketchiest details of the combat in Podrinje from
10 the start of the war until the campaign which concerns this trial. The
11 Prosecution really only want you to consider one period, one part, and
12 one side of the conflict. They ignore the evidence such as 7D1124,
13 7D1125, 7D946, 7D968, 7D965, 7D992, and 993, which set out, as it were,
14 the violence which was committed upon the Serbian community by its enemy.
15 Pandurevic described his whole war, including all the military operations
16 he took part in. These were classic military operations, and he is not
17 charged with any crime against humanity or war crime in relation to them.
18 The problems created by the Prosecution's dual goals or twin
19 objective theory lies first, as I have already said, in divining their
20 derivation. Are they derived in 1992 or are they derived from the
21 documents of 1995? We submit that some -- the idea of some over-arching
22 objective on which the combat plan was based, taken to its logical
23 conclusion, would mean that quite literally nobody subject to it could
24 act lawfully. If, for example, the determining document is said to be
25 Directive 7, then every Drina Corps soldier, going about his daily
1 business, would have been doing so with the ancillary intention of making
2 life unbearable for the inhabitants of the enclaves. Imagine this: One
3 day, you are manning the lines, doubtless thereby effectively tying down
4 enemy resources, the next, with a stroke of General Miletic's pen, you're
5 a party to forcible transfer merely by doing the same thing.
6 The combat order Krivaja 95 does not, in fact, express more than
7 one objective, we submit, rather than express the same objective in a
8 number of ways; we suggest four: One, separation of the enclaves; two,
9 reduction of the enclaves to their urban areas; three, creating
10 conditions for the elimination of the enclaves; four -- I'm sorry, I'm
11 going too fast again. Thank you.
12 The urban area is not defined, but the extent of the military
13 objectives is defined. For example, Tactical Group 1 had to achieve
14 Zivkovo Brdo, so if you look at the detailed objectives of the combat
15 order, it would still leave a substantial area easily sufficient for the
16 population to live in. Thus, the Prosecution assertion of that the
17 objective of reducing the enclave in size was intended to cause a
18 humanitarian disaster and, thus, criminal, is a false assumption.
19 JUDGE KWON: Sorry, Mr. Haynes, did you say the fourth objective?
20 MR. HAYNES: I'll have to come back to that. Thank you.
21 Also, the phrase "elimination of the enclave," paragraph 4, is
22 ambiguous, and it is not safe to assume that it meant forcible transfer
23 of the population rather than neutralisation of the 28th Division as a
24 military force. Apart from anything else, it doesn't make sense to say
25 "reduce in size and create conditions for its elimination" if your
1 objective is so to constrict it that everybody would have no choice but
2 to leave then. It is plain that what is meant is to create a new
3 perimeter which is easier to police and stop excursions by the ABiH into
4 Serbian territory, because, necessarily, the smaller the perimeter, the
5 less soldiers you need to guard it, thus you would eliminate the enclave
6 as a military feature, not as a place for people to live.
7 We're bound to observe, in relation to the case of the dual
8 goals: Firstly, that the way in which the Prosecution's case is put in
9 this trial is inconsistent with the way it was put in Blagojevic and
10 Krstic; see Krstic at para 136 and -- sorry, Krstic, para 199, and
11 Blagojevic, 136. Secondly, the VRS force wasn't sufficient to achieve
12 the illegal objective as alleged. Even the Prosecution contend that any
13 one of the number of factors occurring would have stopped the illegal
14 objective from being achieved, Naser Oric being there, the 28th Division
15 putting up a proper fight, Clear Skies on the 11th of July allowing NATO
16 to drop bombs on Serbian forces, et cetera. Thirdly, when Pandurevic
17 departed to the operation, he expected nothing to come of it, and that,
18 we say, is proof of his intentions. Fourthly, when he achieved his
19 objective under Krivaja 95, namely, the taking of Zivkovo Brdo, he and
20 his forces withdrew, and his evidence is that he expected to go home.
21 And lastly but not leastly, he was a tactical commander whose concerns
22 were local, and insofar as the orders from above were concerned, were
24 In relation to the dual goals of Krivaja 95, the Trial Chamber
25 has visibly been concerned with where you draw the line, and it received
1 some assistance on that point from Mr. McCloskey the other day. It is
2 interesting to see whether their theory as to that bears out any careful
3 scrutiny of the way in which this case is now put, and the Trial Chamber
4 might briefly like to consider how the indictment is framed in deciding
5 where you draw the line between those who are participating in the joint
6 criminal enterprise forcibly to transfer the population and those who are
8 The Prosecution contend, at paragraph 1620 of its final brief,
9 that Pandurevic was in a precisely similar position to the tactical
10 commands of other brigades, in particular Mirko Trivic and
11 Svetozar Andric, and certainly it is true all of them took part in
12 Krivaja 95 and all of them are brigade commanders. All of them commanded
13 units which attacked Muslim forces at Srebrenica. All of them entered
14 Srebrenica town. All of them were present at a meeting at the
15 headquarters of the Bratunac Brigade, whenever that took place, and all
16 of them marched towards Zepa. Trivic and Andric took part in the assault
17 on Zepa between the 14th and the 24th of July. Trivic and Andric had
18 units in Zepa throughout that period, and they also, if you have regard
19 to Trivic's diary, P4309, took part in the loading of civilians onto
20 buses. Self-evidently, neither of them have been indicted. And more
21 importantly, if you have regard to paragraph 97 of the indictment, the
22 only brigade commanders listing as participating in a JCE are Pandurevic
23 and Blagojevic. Moreover, in paragraph 98 of the indictment, Trivic's
24 unit, the Romanija Brigade, is not even listed as a participating unit in
25 the implementation of the JCEs.
1 When Trivic testified, the Prosecution was specifically asked by
2 His Honour Judge Kwon at the start of his testimony on the 18th of May,
3 2007, whether a Rule 90 warning should be given to him, and the
4 Prosecution said, in clear terms, one was not necessary. That's at
5 T-11793. So the Prosecution's position is, necessarily, that, in
6 particular Trivic, and by necessary inference Andric, are guilty of no
7 criminal behaviour. They were not part, apparently, of a joint criminal
8 enterprise forcibly to transfer, that neither had the intention for
9 forcible transfer, neither aided and abetted in forcible transfer. In
10 short, neither is guilty of any criminal behaviour at all.
11 Given their identical roles and their presence at the alleged
12 crucial meeting in Bratunac, where is the line of distinction now between
13 Pandurevic and Blagojevic and the other two? The answer, in our
14 submission, is perfectly simple. Criminal liability in this case has got
15 nothing whatsoever to do with knowledge of the legality or otherwise of
16 the Krivaja 95 operation. It has nothing to do with whether you had
17 seen, read, or considered Directive 7, nothing to do with whether your
18 units encountered DutchBat on the outside of one or other of the
19 enclaves, nothing to do with whether you saw or participated in the
20 evacuation of the civilians. The sole determining factor as to whether
21 you, as a brigade commander, are deemed criminally liable for
22 participation in the JCE to forcibly transfer civilians is whether
23 prisoners ultimately die in the municipality where your command post was
25 And that may be a convenient moment to take a break.
1 JUDGE AGIUS: Thank you, Mr. Haynes.
2 We'll have a 25-minute break starting from now. Thank you.
3 --- Recess taken at 10.28 a.m.
4 --- On resuming at 11.00 a.m.
5 JUDGE AGIUS: Mr. Haynes.
6 MR. HAYNES: This may be bad news for the interpreters, but I do
7 need to speed up a little bit.
8 I'm going to move quickly on over a couple of topics I was going
9 to cover to that event and directly to the area which may cause me to be
10 accused of unmitigated arrogance. I'm going to deal with the question of
11 the meeting at the Bratunac Brigade. This is dealt with extensively in
12 both our brief and the Prosecution's final brief, but just a few points,
14 Firstly, Trivic's diary and his evidence are not independent
15 evidential sources. They stand and fall together. And if you needed a
16 transcript reference for that, it would be T-11978, where Trivic,
17 himself, concedes that point.
18 There are, we submit, a number of compelling reasons as to why
19 Trivic's recollection and recording of the meeting on the 12th of July
20 simply cannot be right. There are seven. Firstly, according to his
21 recollection, there were no prisoners in the center of Bratunac on the
22 evening that he attended a meeting. Secondly, there was no information
23 at the meeting he attended about the whereabouts of the 28th Division.
24 Thirdly, that on the afternoon or late evening of the 11th of July,
25 General Mladic, as we saw on the video, had been exhorting all his
1 officers, Trivic included, to go to Bratunac that evening. It only makes
2 sense that they would. Fourthly, there were no buses in Potocari when
3 Trivic passed through it on the evening he went to the meeting, only
4 people. That can only have been the 11th, not the 12th. Fifthly, during
5 the meeting Mladic received a telephone call which Trivic overheard
6 relating to the provision of fuel for buses. This is directly sequential
7 to the conversation Mladic had had with Karremans at the first
8 Hotel Fontana meeting about the provision of transport and fuel for the
9 evacuation. No such conversation could have taken place on the 12th of
10 July. Sixthly, Trivic's evidence was that the conversation he overheard
11 was Mladic arranging the commencement of transportation from Potocari the
12 following day. That's at T-11980 to 981. That night, he saw no buses in
13 Potocari. And, seventhly, Trivic said in evidence that he passed through
14 Potocari again on the day after the meeting he had attended in the
15 afternoon, and he then saw large crowds of people being loaded onto
16 buses. The evidence from DutchBat officers is that the evacuation was
17 completed by about 5.00 p.m.
18 there could have been no large crowds there on that afternoon for him to
20 The diary itself, we submit, is ambiguous as to the date. And
21 for the second time and possibly the last time, I'm going to call a
22 document into e-court. It's already on the screen, and in particular the
23 passage relied upon by the Prosecution in its final brief needs your
24 attention. It reads:
25 "By 8.00 tomorrow, General Kostic," that must be Krstic, "must
1 prepare a decision for the liberation of Zepa."
2 And continues further down:
3 "In the morning of the 13th of July, at 10.00, General Mladic
4 will personally address the soldiers in the vehicles sector at the line
6 What is significant about this record is, firstly, that Trivic
7 has recorded an order by Mladic to Krstic to produce not an order, but a
8 decision by 8.00 the following morning. The Prosecution have
9 conveniently overlooked that fact in linking this diary entry to the
10 production of the order for combat produced by Krstic on the 13th of
11 July. However, the more logical link between what is written here and
12 subsequent events is that Krstic arrived at a decision by 8.00 on the
13 12th and then went to the Bojna repeater at 9.00, where he met the
14 commanders and announced his decision to sweep the terrain towards Viogor
15 prior to the action in Zepa commencing.
16 Secondly, and we submit significantly, why Trivic would have
17 recorded in the very next entry that Mladic would have addressed the
18 soldiers at 10.00 on the 13th of July, rather than "tomorrow," makes no
19 sense. The use of the phrase "the 13th of July" in that entry plainly
20 implies that the following day was not the 13th of July.
21 Most of the other evidence touching on this meeting has been
22 substantially reviewed in the briefs, and I'm not going to go over it
23 again. However, two additional pieces which require, I submit, your
24 attention: Firstly, the evidence of Miodrag Dragutinovic. His evidence,
25 we submit, is doubly relevant because he said not only that Pandurevic
1 told him on the 12th that the meeting had been on the previous evening,
2 but also that, critically, at 5.00 in the afternoon of the 12th, when
3 Krstic, as we know, went to Viogor to meet the commanders, Krstic told
4 him that Mladic would come the following day to address the troops.
5 Krstic could not have known that if Mladic only said that at a meeting
6 five hours after he spoke to Miodrag Dragutinovic. Therefore, Krstic
7 must have known that from a meeting which took place the previous
9 I know it's been a very long trial, but you might remember
10 Miodrag Dragutinovic, the operations officer from the Zvornik Brigade, a
11 chartered surveyor by profession, a small, measured, and quiet man, who
12 probably gave some of the most reliable and credible evidence that the
13 Trial Chamber's heard in three years, in our submission. He was called
14 as a Prosecution witness. They didn't have to call him, but they did.
15 And to suggest now, again without any contradiction of his account during
16 re-examination which was then permissible, that he is lying, that, we
17 submit, is inappropriate and incorrect. He had been the subject of a
18 146-page interview. They knew what he was going to say, and he was not
19 challenged about it, and was called as a witness of truth. His
20 re-examination went on for several hours and was even adjourned
21 overnight. Again, no suggestion made that he was anything less than
22 honest or accurate about the date he recalled being told by Pandurevic a
23 meeting had taken place the night before and, by Krstic, that Mladic
24 would come the following day.
25 The second point really arises directly from that, which is,
1 I think we all agree, that on the early evening of the 12th of July,
2 Krstic did go to Viogor and he did speak to all of the brigade commanders
3 who were going to go on to Zepa. That, in our submission, makes a
4 nonsense of the idea that all of those people then went from Viogor back
5 to Bratunac later that evening to discuss, doubtless, precisely the same
7 Now, there has been a lot of discussion about the date of the
8 meeting, but almost none about its content. The Prosecution's approach
9 seems to be that proof of the date is sufficient and the rest can simply
10 be inferred. Whatever was the date of the meeting, it is actually
11 instructive to look at who was not there. Beara wasn't there; Popovic
12 wasn't there; Kosoric wasn't there; Tolimir wasn't there; Momir Nikolic
13 was nearby, but he wasn't in the meeting; Vasic was not there. Nobody
14 from MUP was there. And who was at Potocari? Well, most if not all of
15 the above. In our submission, the meetings which can be proven to have
16 taken place at around this time indicate clearly where the division of
17 function lay between the soldiers and those concerned with prisoners.
18 The people at this meeting were the military men, whose responsibility
19 would be to defeat the ABiH at Zepa, i.e., to fight. These were not the
20 men whose concern, under the combat order or generally, was the taking or
21 detention of prisoners or the movement of civilians.
22 The Prosecution say, Why would Mladic conceal these things from
23 his military commanders? We say the counter argument is: Why would he
24 tell them? He had mobilised and ordered the relevant people and
25 resources to deal with Potocari, and he didn't need his military
1 commanders to do anything or know about it.
2 The evidence as to separate meetings with security men in this
3 case is a bit vague, but those people didn't all appear in Potocari by
4 magic, so there must have been separate meetings and it must have been
5 before the bussing of the population at Potocari began. It's illogical
6 to infer that the same matters needed further discussion with people who
7 were about to be dispatched to fight in Zepa. Quite simply, the argument
8 doesn't work. They did not need to know.
9 Leaving aside the physical circumstances which, of course, would
10 suggest that Trivic is wrong, the Prosecution's assertion about what the
11 commanders must have known by the 12th of July are based exclusively on
12 the evidence of Momir Nikolic, which the Prosecution itself has conceded
13 cannot be relied upon where not corroborated by other reliable evidence;
14 paragraph 502. His assertions, moreover, as to what he told Blagojevic
15 are completely without corroboration. Accordingly, the Trial Chamber
16 should, on the Prosecution's own invitation, regard its submissions about
17 what Pandurevic must have known even if he had attended a meeting on the
18 12th of July.
19 Lastly, a submission which I've briefly touched upon, the
20 position of Trivic himself, not said to be part of a joint criminal
21 enterprise, not necessary to give him a warning under Rule 90 before he
22 gives evidence. It is now suggested in the brief that he not only took
23 part in a meeting at which forcible transfer and murder was discussed, in
24 spite of his denials, but, moreover, that he has committed perjury on
25 that subject. We say to make that suggestion at this stage is
2 I'm going to move on now to the sections of the Prosecution brief
3 which deal with my client's alleged knowledge of the murder operation,
4 and I'm going to start with the 13th of July.
5 Firstly and foremostly, there is no doubt or dispute that between
6 the 12th and 13th of July, Pandurevic was moving from Viogor towards
7 Vlasenica. You might recall that on the late evening of the 13th of
8 July, we find him refueling his car in a convoy at a petrol station in
9 Vlasenica. He did not encounter any Muslim forces. Nobody suggests that
10 he did. There were no Muslim forces in the area through which he was
11 passing, though -- thus, there is no question of him being aware, in his
12 immediate vicinity, of the taking of any prisoners. There's no evidence
13 of any communication between him and anybody in Bratunac, and there's
14 absolutely no reason why he should have got in touch with anybody in
16 The Prosecution's submission that the movement of prisoners from
17 Bratunac to Zvornik was due to the presence of NGOs and international
18 agencies is completely false. There is no evidence that that was the
19 motivation for moving the prisoners. Deronjic's evidence is that the
20 prisoners were moved quite simply because he demanded it. In fact, the
21 murders at Kravica, just outside Bratunac, on the main road, Cerska, and
22 the Jadar Valley
23 destroy the notion that anybody was worried about outside agencies. If
24 further confirmation were needed that the theory is nonsense, even after
25 the decision of Karadzic and Deronjic to move the prisoners to Zvornik,
1 Beara was still looking for places to murder them in Bratunac on the
2 morning of the 14th, so he plainly didn't care who might see him doing
4 The Prosecution theory that the decision to murder all the men
5 was taken sometime on the 12th depends entirely on the evidence, we
6 submit, of Momir Nikolic. Again, the Prosecution say of him, where his
7 evidence is not corroborated, you should not rely upon it. We say that
8 that is not correct, and the evidence does not support any such finding,
9 and the matter is dealt with fully in our brief.
10 It is correct that Mladic addressed the troops on the morning of
11 the 13th of July and that Krstic was there with him, but there is no
12 evidence that he talked to Pandurevic or anybody else, for that matter,
13 about the plan to murder prisoners at that stage. And the Trial Chamber
14 has heard not only from Pandurevic, but also Trivic and Dragutinovic, and
15 no suggestion was made to them that any such information was passed. At
16 that stage, the morning of the 13th of July, the decision to move
17 prisoners to Zvornik had not been taken, so there was no need to make
18 Pandurevic a unique recipient of such information. The idea that Mladic
19 would share all his plans and the activities of his chief of security
20 with a load of brigade commanders involved in combat is ridiculous and
21 not supported by any evidence.
22 The decision to move the prisoners from Bratunac to Zvornik was
23 taken at a high political level, and it was taken swiftly. The
24 Prosecution's concession at paragraph 1392 that it is unclear whether
25 Pandurevic knew that the prisoners were to be moved to Zvornik, can only
1 be read as an admission that there isn't sufficient evidence to find that
2 he did.
3 All the evidence, we'd suggest -- we'd submit a number of things.
4 Firstly, that the decision to move the prisoners was taken at 8.30 on the
5 13th of July. Secondly, that within a very short time Drago Nikolic was
6 informed, probably by a call from Popovic, though the Prosecution's
7 position on that is far from clear. Thirdly, that Beara didn't want to
8 move the prisoners and that even the following day he was trying to find
9 a way to kill them in Bratunac. And, fourthly, while all this was going
10 on, Vinko Pandurevic was marching towards Zepa.
11 There is no evidence that anybody contacted Pandurevic, and why
12 would they? Firstly, if the Zvornik Brigade commander needed to be
13 warned to get ready for some prisoners, the person to tell was Obrenovic,
14 who was in command of the Zvornik Brigade on the 13th of July. Telling
15 Pandurevic, who was on a completely different mission, marching towards
16 Zepa, was out of radio communication with the brigade, would be
17 practically useless. Secondly, the last thing Beara wanted was another
18 municipality telling him he couldn't kill his prisoners there. He wanted
19 this over and done with quickly and efficiently. Accordingly, the
20 evidence that Pandurevic knew depends exclusively upon PW-168's assertion
21 that Drago Nikolic told him that Pandurevic knew. That would necessarily
22 depend on some contact being made with Pandurevic on the march, between
23 the time when the decision to move prisoners was taken in Deronjic's
24 office and the time when Drago Nikolic was called, but neither Deronjic,
25 nor Beara, had the means to contact Pandurevic from the SDS office, and
1 Momir Nikolic for sure did not do so. Even from the Bratunac Brigade
2 Command, there is no evidence that Pandurevic was even contactable whilst
3 on the march.
4 It is significant throughout these days that when he received
5 orders from Krstic, he received them face to face at meetings. PW-168's
6 evidence on this point is probably untrue. It's designed to minimise his
7 own personal responsibility. (redacted)
9 (redacted) or that Popovic lied to Nikolic. In any event, it is
10 impossible to conclude, as the Prosecution very nearly concedes, that
11 Pandurevic knew of the plan to move prisoners to Zvornik on the evening
12 of the 13th of July.
13 Going over to the 14th, there is no evidence even that Krstic
14 knew, by the 14th of July, that prisoners had been taken to Zvornik, and
15 there is no reason that he should have been told, because even adopting
16 the regular chain of command, Beara had no duty to report to Krstic,
17 Deronjic had no military duty at all and certainly none to report to
18 Krstic, and Momir Nikolic had no duty to report to Krstic. As I've
19 already said, we submit that the Prosecution's warning as to the
20 testimony of Momir Nikolic means that you cannot even find that he
21 informed his own commander, because he's the only source of evidence for
22 that. So on the 14th, in the morning, at Krivace, Krstic could not even
23 have told Pandurevic about the movement of prisoners to Zvornik.
24 Moreover, there is no evidence that anything about prisoners was
25 said at that meeting on the morning of the 14th. Again, Pandurevic gave
1 evidence about that, as did Trivic, Jevdjevic, Dragutinovic. All were at
2 Krivace on the morning of the 14th at the time the combat orders for
3 Stupcanica 95 were given out, and no suggestion was put to any of them
4 that prisoners were discussed. We submit it cannot be inferred, contrary
5 to the direct evidence of Pandurevic and these other four witnesses, that
6 the Prosecution's case is correct and that information about prisoners
7 was passed that morning.
8 Assuming the contrary, however, and that Krstic was aware by the
9 morning of the 14th that prisoners had been moved to Zvornik, and that he
10 did inform Vinko Pandurevic of that, what is, therefore, remarkable is
11 that at that time there is no communication between Pandurevic and the
12 Zvornik Brigade. Of that, we can be absolutely sure, because if there
13 had been, PW-168 would for sure have told you. The duty operations
14 officer's notebook would have recorded it, and there would probably be an
15 intercept. That would surely have been the time to get in touch with his
16 command if he had been told about the arrival of the prisoners. It's
17 simply inconceivable that if he had been told by Krstic on the morning of
18 the 14th of July about the movement of the prisoners that he would --
19 about the movement of the prisoners to Zvornik that: one, that he would
20 not have know about the column; two, he would not have contacted the
21 brigade; and, three, he would have taken up his positions in Zepa at all
22 as if nothing had happened.
23 Again, at paragraph 1392, the assertion that by that time the
24 murder operation was clear to everyone derives solely from the evidence
25 of Momir Nikolic, and on the Prosecution's own invitation, should be
2 Let's move forward to the morning of the 15th, please. The
3 Prosecution claims at paragraphs 1270, 1393 to 1398, that Pandurevic had
4 to know or needed to know about the murder operation in order to fight
5 the Muslim column effectively, and Krstic simply must have informed him
6 about this before his return on the 15th of July. We have a very great
7 number of submissions to make about this, indeed 13.
8 Firstly, nobody suggests that the danger which the column
9 represented to Zvornik was known before the evening of the 14th of July.
10 The Prosecution do not even -- do not even suggest that, even at the
11 morning of the 14th, Krstic would have talked to Pandurevic about the
12 column or its dangers. So what other operations were going on in Zvornik
13 which Krstic made and probably didn't know about had no impact.
14 Secondly, the murder operation was a Main Staff security
15 operation being carried out by security officers and military policemen
16 from the Main Staff, the Drina
17 no reason a brigade commander should be told about it.
18 Thirdly, as we have demonstrated, there is no such thing as a
19 brigade zone of responsibility, so the fact that the prisoners were taken
20 to the municipality of Zvornik
23 (redacted). According to PW-168, he had no idea that
24 the Zvornik Brigade resources were involved in the killing operation,
25 that is, apart from Drago Nikolic, five military policemen and two digger
1 drivers. They would have had no impact whatsoever upon the brigade's
2 combat capabilities. (redacted)
10 Fifthly, by the early morning of the 15th of July, the
11 information was no better. Especially bearing in mind that the last
12 contact with Obrenovic had been on the evening of the 14th, there was no
13 information that there was a difficulty with guarding, killing, or
14 burying the prisoners available at the command post on the morning of the
16 Sixthly, if Obrenovic thought that the resources being used to
17 guard prisoners were compromising the brigade's combat capability, he
18 would have said so in his report on the 14th of July or at least during
19 his conversation with Jevdjevic the night previous.
20 Seventhly, as to the Zvornik Brigade resources and the allegation
21 in paragraph 1397 of the Prosecution brief that significant numbers of
22 Zvornik Brigade resources were being used up, the amount of resources
23 committed to guarding prisoners in digging graves peaked at 50 on the
24 14th of July. During the course of the next few days, it dwindled. The
25 Zvornik Brigade had five and a half thousand men at its disposal. Fifty
1 is less than 1 per cent of the brigade's manpower. Not every battalion
2 was engaged in active combat on the 14th, 15th, or 16th of July, and you
3 had the opportunity to see the quality of some of the men who gave
4 evidence in this case, and I mean them no disrespect, but, for example,
5 those from the 1st Battalion, who came to speak to you and told you about
6 standing guard, unarmed, in the vicinity of their local school. Do you
7 seriously think that their absence from the front-line made any
8 difference to the Zvornik Brigade's fighting capability?
9 Eighthly, the telegrams from Obrenovic and the other sources
10 which were available to Krstic and Pandurevic on the morning of the 15th
11 of July made no reference to the killing operation.
12 Ninthly, the intercepted telecommunications on the morning of the
13 15th of July between Pandurevic and the brigade command would negate any
14 suggestion that Pandurevic had just been informed of the killing
15 operation in Zvornik. It is inconceivable, we say, if Krstic had just
16 told him that there were all sorts of problems arising from the killing
17 operation occurring in Zvornik and that resources were having to be
18 committed to it from the brigade, that Pandurevic would not have asked
19 about it, even in cryptic terms, when he called Mijatovic and Milosevic
20 on the morning of the 15th. If, as the Prosecution say, he needed to
21 know from Krstic, he so much more needed to know from Zvornik Brigade
22 members what was going on on the ground, and a commander like Pandurevic
23 would for sure have inquired about that issue if he knew there was an
25 Tenthly, Dragan Jokic, according to the Prosecution's submission
1 the other day, is a weak man. I don't know about that, but one thing I
2 do know is he's a very careless user of the airwaves. You need look no
3 further than his intercept with Colonel Beara on the evening of the 14th
4 of July at 2102 - 1164 - or his conversation at 9.39 with Bratunac
5 Brigade Command at 9.39 - P1176 - where he was effectively told to shut
6 up rather than give away the whereabouts of his commander on the air, but
7 when Dragan Jokic spoke to Pandurevic on that morning about whether there
8 were any problems, he said nothing. Now, that may well mean that I'm
9 making a point in Colonel Beara's favour, because that may well mean that
10 when he referred to problems the night previously to Colonel Beara over
11 the radio waves, he was, in fact, referring to the column and nothing
12 else. But for sure having his commander on the line, it is a stark
13 surprise that he, Dragan Jokic, doesn't say anything which
14 Vinko Pandurevic couldn't have prevented him from saying.
15 Eleven, we all know now that we can add up the men and machinery
16 that, in fact, were involved in Orahovac and Petkovci, but nobody knew
17 then and certainly nobody had knowledge then of the sort of numbers that
18 the Prosecution now allege were involved.
19 Twelfthly, if Krstic told Pandurevic about the killing operation
20 and the involvement of the Zvornik Brigade in the morning, why didn't
21 Krstic then tell Beara when he called him at 10.00 that morning, a few
22 minutes later? Beara was complaining that he had problems. Surely,
23 logic dictates, if Pandurevic was in the loop of knowledge, that Krstic
24 would say to Beara, Pandurevic is on his way back, knows about
25 everything. Why don't you take a few of his men, hey, perhaps from the
1 3rd Battalion? They're not involved in combat. If Pandurevic had been
2 part of or knowledgeable of the killing operation and knew about the
3 involvement of the Zvornik Brigade, there is no way Beara would not have
4 asked for resources from the Zvornik Brigade for executions in the
5 Zvornik area. There is no way that Krstic wouldn't have told him
6 Pandurevic was returning. The only reason that Beara did not seek help
7 from Pandurevic was that Pandurevic was not part of the plan. This
8 intercept is perhaps as critical as the combat report of later the same
9 day in understanding the evidence that there is and there is not against
10 Vinko Pandurevic. We say it is the clearest illustration that at that
11 point in time nobody could possibly infer that he had any knowledge that
12 the operation was going on.
13 Thirteenth and last, if Krstic spoke to Pandurevic on the morning
14 of the 15th about the fact that the killing operation had been moved to
15 Zvornik, why would Pandurevic, ten hours later, write him a report
16 telling him about the prisoners in the schools? That would effectively
17 be Pandurevic writing to Krstic to say, Hey, Krle, you know those
18 prisoners you told me about this morning and the problems we've got with
19 them. You're absolutely right, we have. We submit that the whole
20 Prosecution theory about what Pandurevic would have needed to know and,
21 therefore, must have known from his meeting with Krstic that morning is
22 utterly false and is based upon inferences that you cannot possibly draw
23 when you look at the evidence in the round. We do add, yet again, that
24 this is a case where the direct testimony in the case from Jevdjevic and
25 Vinko Pandurevic, as well as the hearsay evidence of Mijo Dragutinovic,
1 completely rules out any such transfer of information at that stage.
2 Now, one of the great mysteries of the case, if you accept
3 Pandurevic might be right as to how he came progressively to know about
4 the executions in Zvornik, may be why Dragan Obrenovic did not tell him
5 sooner. It is a perfectly valid question. They had been colleagues for
6 two and a half years and worked closely together. They had mutual
7 respect for each other. You would expect Obrenovic to tell Pandurevic at
8 the first available opportunity. So why didn't he? Well, let us not
9 lose sight where the burden of proof lies in all this. This, perhaps
10 more than any other episode in the case against Pandurevic, is one where
11 I have to remind you that it's for the Prosecution to prove beyond
12 reasonable doubt that he did, and we submit, in any event, that PW-168's
13 uncorroborated evidence alone on this topic does not discharge that
15 The history and the impossibility of PW-168's corridor story and
16 conversation is dealt with extensively in our brief as well in the brief
17 for Drago Nikolic.
18 In reality, the Prosecution is left with nothing else to hold
19 their case together on this topic than to cling desperately to the notion
20 that Pandurevic had to know about the security threat and that Obrenovic
21 had no reason to conceal this from his commander, but let's analyse it.
22 The following are a series of operating factors upon Obrenovic which may
23 act exclusively of each other or, in certain circumstances, in
25 Firstly, if PW-168's evidence about Obrenovic's conversation with
1 Drago Nikolic is true, then Obrenovic would have believed that Pandurevic
2 was already fully informed and, accordingly, he had no need to know,
3 least of all in front of an assortment of policemen he had never met
5 Secondly, conversely, it is possible that he had nothing to tell.
6 The precise details of Obrenovic's state of knowledge of the murder
7 operation and who was involved in it by the 15th of July, at about
9 might have known no more than that Drago Nikolic wanted to be relieved
10 from the IKM and needed five military policemen to secure some schools.
11 At the other extreme, he might have been fully aware of the murder and
12 burial of prisoners at Orahovac and Petkovci. The truth is almost
13 impossible to work out, as even the Prosecution concede. Accordingly,
14 what, in fact, he knew at noon
15 may not have thought worth telling Pandurevic about -- he might not have
16 thought worth telling Pandurevic about, given the urgency of the military
17 situation. In any event, he may not have had the opportunity. Even in
18 his 2001 interviews, Obrenovic made a point of saying that he wanted to
19 report to Pandurevic. At that time, of course, he was asserting only
20 about the military situation, but that he didn't get a proper
21 opportunity. Pandurevic simply came into the office on the 15th of July.
22 Obrenovic briefed Pandurevic for 15 minutes, and then Obrenovic was sent
23 off to his task. This version of how the meeting on the 15th of July was
24 conducted, whatever the state of Obrenovic's knowledge, is remarkably
25 consistent with all the evidence we now have available. And why would he
1 have lied about that in 2001?
2 Fourthly, he may have been afraid to tell Pandurevic what he had
3 done, or at least have wanted the possibility of time to think best how
4 to explain himself. Obrenovic was in the Command of the Zvornik Brigade
5 on the 13th and 14th of July. He made the decision to relieve
6 Drago Nikolic of his post as duty officer and provide him with five
7 military policemen. He authorised the use for two excavator operators
8 for burials at Orahovac. Obrenovic may have been more seriously involved
9 than that. We just don't know. He very well may have feared that
10 Pandurevic would disprove his actions, whatever they may have been, and
11 criticise them.
12 Fifthly, whilst Obrenovic told Pandurevic of the conversation
13 with Drago Nikolic, he did not do so, on any version of events, until
14 more than 24 hours after Pandurevic's return. This is curious. There,
15 of course, remains the further possibility that the conversation was made
16 up by Obrenovic in the first place, but, more importantly, that shows
17 that there must have been a second conversation between Pandurevic and
18 Obrenovic where Obrenovic revealed the genesis of his information; i.e.,
19 the number of prisoners, the involvement of Zvornik Brigade machinery,
20 whose orders they were following, et cetera. And it may well be, as I've
21 already said, a combination of all those five reasons. The fact of the
22 matter is you simply cannot infer that the conversation did take place
23 because there is no sensible explanation as to why it wouldn't. We
24 suggest there are several explanations as to why it wouldn't, and we've
25 listed them there for you. In truth, to approach it in that way, as
1 Mr. Josse was addressing you about at length on Friday, is a classic case
2 of reversing the burden of proof. It is for the Prosecution to persuade
3 you that PW-168's evidence is truthful and reliable, and not for
4 Pandurevic to persuade you to the contrary. He merely has to cause a
5 doubt to be cast on that evidence.
6 Given that the Prosecution, as we will submit in due course, have
7 abandoned as truthful several important areas of PW-168's evidence, two
8 of the most important examples being Pandurevic's presence in the Zvornik
9 Brigade on the 12th of July and the meeting with Popovic, we submit, on
10 the 16th of July, it is the Defence submission that you cannot rely upon
11 his evidence as credible or reliable in this respect.
12 I'm going to turn now, as quickly as I may, to the irregular
13 combat report of the 15th of July. In brief, we submit that the
14 Prosecution's analysis of this document is neither objective nor logical.
15 The Prosecution's case as to the meaning of this document is
16 circular. The argument goes: The report, itself, is evidence of his
17 knowledge, and because of his knowledge, you can, therefore, interpret
18 the document adversely to him. The interpretation, we say, is based upon
19 a number of false assumptions. The first is that enormous or tremendous
20 resources of the Zvornik Brigade were engaged in dealing with prisoners.
21 They were not. That is simply false. Thirty, forty, or fifty men was a
22 drop in the ocean and wouldn't have made any difference to anything.
23 Secondly, that Pandurevic knew that the murder operation was in
24 progress, that prisoners were awaiting executions, and that Zvornik
25 Brigade resources were involved in these operations, there's no evidence
1 that he did, and it all depends on who told him. If he is or might be
2 right that the only information he had prior to writing the report came
3 from Brano Grujic and Ljubo Bojanovic, then he had and could not have had
4 the information that executions were taking place and that the Zvornik
5 Brigade was involved.
6 Thirdly, that the situation on the ground was accurately reported
7 in the first five paragraphs, it wasn't. The best example, perhaps, is
8 that the report suggests that the numbers of the column which -- I'm very
9 sorry, I'll start that again.
10 The situation on the ground was not accurately reported in the
11 first five paragraphs of the report. Evidence suggests that the numbers
12 of the column which eventually did walk to safety were far higher than
13 those mentioned by Pandurevic in the report.
14 And fourthly and perhaps most significantly, that by the time he
15 wrote the report, Pandurevic's position was that he would allow the
16 Muslim civilians to go free, but not the soldiers. In truth, by the
17 evening of the 15th of July, the only sticking point was whether they
18 could take their arms with them or not. This is doubly significant,
19 firstly, because it completely negates the Prosecution's baseless
20 suggestion at paragraph 1443 of its brief that Pandurevic was fully ready
21 to destroy the army and, secondly, it adds real significance to
22 paragraph 6 of the report, the one that reads: "I have made an offer to
23 the commander of the opposite side," et cetera. This
24 paragraph foreshadows the report on the 16th of July in which Pandurevic
25 said it was possible that some soldiers got out with the civilians. The
1 obvious inference is, if he had already decided they could all go by the
2 time he wrote this report, then that is what he was referring to when he
3 said, Let them go, and it has a direct correlation with its report of the
4 following day.
5 A few further observations on the report.
6 The assertion of the Prosecution made in paragraph 1449 quite
7 simply should be disregarded and cast to one side. Pursuant to the
8 practice, as pointed out to Mr. McCloskey when he was putting to
9 General Pandurevic the opinion of Mr. Radinovic in another trial, then
10 unless adopted by him, none of that has the force of evidence,
11 Mr. Radinovic's opinions in the Krstic case, whether read into the record
12 of this case or not, simply should not have found their way into
13 arguments in the Prosecution brief. None of what he says has the force
14 of evidence, particularly when denied and disagreed with by
15 Vinko Pandurevic.
16 In relation to paragraph 1445, the suggestion that the additional
17 burden is not based on any knowledge of Pandurevic about trouble in the
18 areas, we say only this: He had been the Zvornik Brigade commander for
19 two and a half years, he was very well acquainted with the way in which
20 battalion soldiers would react and, in particular, what was likely to
21 make them desert their posts or refuse to go to the lines. There is a
22 stack of evidence from Pandurevic, PW-168, and Dragutinovic about the
23 occasions in when this happened during the course of the preceding three
24 years, and Pandurevic would know what the incipient dangers of prisoners
25 in schools, near to prisoners' homes, were. He didn't have to have
1 direct knowledge of any particular complaints.
2 The reliability of Eileen Gilleece's note as a piece of evidence
3 was specifically dealt with in our brief, and very little more needs to
4 be said. In reality, the Prosecution want to accord the Gilleece note
5 with the status of a suspect interview, and we submit it cannot be
6 regarded as such. In virtually all jurisdictions in the latter half of
7 the 20th century to date, it was recognised, through advances in
8 technology and the rights of the accused, we needed to protect people in
9 interview situations so that courts could be sure that anything said in
10 an interview situation was both accurately recorded and related to
11 answers given in a satisfactory situation; voluntariness, I suppose, is
12 the key to it all. The Gilleece note fails on all counts. No suspect
13 should be interviewed in these circumstances, and no record of this sort
14 ought to be used to contradict him as to the detail of what might have
15 been said. We are absolutely sure that Ms. Gilleece, in creating this
16 note, did not envisage that it would end up being used for purposes other
17 than that for which she intended it; namely, to provide a brief note on
18 the gist of her lengthy conversation with General Pandurevic.
19 The Prosecution have simply not grasped the point which
20 Pandurevic made about pigs when he gave evidence. What Pandurevic was
21 saying was that Richard Butler was interpreting the word "asanacija" far
22 too narrowly by merely translating it as burying the bodies. Therefore,
23 Pandurevic used the example of pigs to show that the word means more than
24 that. He was not saying that the reference to "asanacija" in the
25 irregular combat report of the 15th of July was a reference to the pigs
1 of the 16th of July or the pigs of 1992. He was saying that on those
2 occasions when that happened, the clear-up of the mess was "asanacija."
3 In many ways, the passage relied upon in the note displays the danger of
4 using it as a verbatim record of the conversation.
5 According to Ms. Gilleece's note, they were talking about a
6 report from 1992 involving the 4th Battalion. Pandurevic's immediate
7 explanation, not ultimate, that the discussion covered both the 1992 and
8 1995 pigs, makes perfect sense of the record and cannot simply be
10 In relation to the note concerning the information he received
11 from the chief of staff about the presence of prisoners in Zvornik on the
12 15th of July, two mistakes are equally possible. Firstly, that the
13 translation of the position of the man who informed him is inaccurate or,
14 secondly, that the date is wrong. Significantly, Ms. Gilleece records
15 nothing in her note as having happened on the 16th of July, which is
16 inconceivable, because it was the 16th of July that he let the column go
17 at Baljkovica. Where she got it wrong, we don't know, but get it wrong,
18 she did.
19 It is correct to say that in paragraph 1456 of its final brief,
20 the Prosecution identifies six areas where Eileen Gilleece's report
21 records events accurately, but what should not be forgotten is that the
22 evidence is that at least part of the discussion was conducted by
23 reference to a copy of Richard Butler's report. History, I'm afraid,
24 does not relate which of his reports they had before them, but even a
25 cursory glance at his narrative report of 2000 would reveal references to
1 Drago Nikolic and the office he held - at page 19 - his replacement by
2 Major Galic at the IKM on the 13th of July - page 98 - and the taking of
3 23 prisoners by the Zvornik Brigade on the 22nd of July - page 83.
4 Gilleece's note, as we pointed out in the examination of the accused, is
5 notably more accurate where there is a text for her to refer to. In any
6 event, some accuracy in the note doesn't prove its entire accuracy, and
7 the Defence stands by its position that, as a record, it is incapable of
8 effectively contradicting Pandurevic's evidence about the important
9 events of 1995.
10 Lastly, nothing personal was, in fact, intended. It is the use
11 of the record as a means of contradicting direct evidence which we
12 criticise, not Ms. Gilleece. However, describing her as professional in
13 the circumstances of this interview is, we submit, a bridge too far. On
14 the evidence, she broke many rules in the conduct of this interview, and
15 apart from anything else, this is one of those curious areas where there
16 is direct evidence in this case on the topic. You might remember I asked
17 Dean Manning what he thought about conducting interviews while everybody
18 was drinking alcohol, and he said, at T-19150, that that would be
19 thoroughly bad practice.
20 The Prosecution asserts in its final brief, without any
21 evidential basis whatsoever, that the words "terena" and "teritorija" are
22 entirely different phrases. The evidence is at T-31001 and T-32640,
23 quite to the contrary, that these two words are synonymous. However, one
24 thing we can agree on; searching the terrain and "obezbedjenje terena"
25 are self-evidently different things. Even the Prosecution would agree
1 with that. So the submission in paragraph 1447, that Pandurevic had
2 already referred to "obezbedjenje terena" in paragraphs 1 to 3 of the
3 report is palpably wrong, even on their own interpretation of these
5 I'd just briefly like to revisit the "let them go" issue, and
6 really make this submission: The idea that Pandurevic could have let the
7 prisoners of war go and chose not to do so, on the evidence you have
8 heard, is ridiculous. Firstly, for a start, by the time he got back to
9 Zvornik, most of them were dead. Secondly, he didn't know where they
10 were. Thirdly, these prisoners were being held under the orders of
11 General Mladic, the VRS commander-in-chief, who himself had been present
12 on the ground on the 14th of July and had dedicated his chief of security
13 to the whole operation. Fourthly, all levels of the army were involved,
14 multiple units from the Main Staff, the corps, and other brigades; also,
15 private companies and municipal organs. The Prosecution agreed with this
16 picture of events. It is fanciful to suggest that a 35-year-old,
17 red-headed youngster could have gone to any of these killing sites, even
18 if he had known where they were, and could have got there in time, and
19 simply let the prisoners go.
20 I'm going to leave the topic of the report because I'm running
21 out of time rapidly, but I do say that there's no compromise on this.
22 The report of the 15th of July is a difficult document to interpret. The
23 Prosecution acknowledged it's a difficult document to interpret.
24 Richard Butler has gone through the whole spectrum of interpretations of
25 this document, and I know that you find it difficult to interpret.
1 Everybody has been troubled by this. But unless you can be satisfied
2 that all the adverse inferences that the Prosecution wish to you draw are
3 the only interpretations of this document, you have to resolve it in
4 favour of the accused. There's no ducking the issue. If they are not
5 inferences which you think are the only inferences you can draw and the
6 only interpretations of this document, then it becomes wholly exculpatory
7 of Vinko Pandurevic. And we submit that when you do look at all the
8 surrounding evidence, what he could have known, what he could have done,
9 that that is the only choice faithful to the burden of proof you will
10 apply, that you can come to.
11 Now, I'm going to leave that and move on to the question of
12 command of the killing operation, and I'd like, really, to highlight for
13 you what I submit is a symbolic and important paragraph in the
14 Prosecution's brief, and it's paragraph 1468. And I'm not going to dwell
15 on it to any great degree.
16 Why it is symbolic and significant is that that is the first
17 time, chronologically, in the whole history of events where you will find
18 any allegation in the Prosecution's brief that Pandurevic had effective
19 control of any units or elements of the Zvornik Brigade. Symbolically
20 again, we say that when you analyse Mr. McCloskey's closing remarks the
21 other day, he talked about General Pandurevic assuming responsibility
22 when he returned on the 15th of July. Now, if you read it as a piece, it
23 will be plain to you that despite the absence of detailed submissions,
24 the Prosecution do not concede the question of de jure command. They
25 contend that during this period, Pandurevic remained de jure command in
1 the absence of a formal replacement, and you'll find that at
2 paragraph 1618 to 1625. So the concession must be taken, we assume, to
3 be to the effect that Pandurevic was not a de facto commander of the
4 Zvornik Brigade from the 4th to the 15th of July, and you may think
5 that's a perfectly reasonable concession on the evidence.
6 This, we submit, marks a "volte-face" from the position the
7 Prosecution took at the start of the case. They have specifically, we
8 say, abandoned the following positions: One, that Pandurevic returned to
9 the Zvornik Brigade Command on the morning of the 12th of July and had a
10 conversation with Dragan Obrenovic - you'll remember that well; two, that
11 he had any meaningful contact between -- sorry, that he had any
12 meaningful contact with the Zvornik Brigade Command between the 4th and
13 15th of July; and, three, that he commanded the units prior to his
14 return. If that is right, and we submit your driven to that conclusion
15 from the absence of any arguments to the contrary in the Prosecution
16 brief, as well as the evidence, then two things must follow: Firstly,
17 that he can have had little or no knowledge of the precise deployment of
18 elements of the Zvornik Brigade when he did return; and, secondly, that
19 there was no need for him to know anything of the murder operation in
20 Zvornik on the 13th or 14th of July, for sure, because he could have no
21 effect upon it.
22 We acknowledge, as is alleged in paragraphs 1469 to 71, that a
23 diminishing number of members of the Zvornik Brigade, in the words of the
24 Prosecution, continued to be involved after Pandurevic's return, but
25 there is no evidence that Pandurevic had any contemporaneous knowledge of
1 that. Put rhetorically, if Obrenovic didn't know, which appears to be
2 the case, how could Pandurevic have known? The Prosecution shouts the
3 mantra "must have known" and "needed to know," but we invite you to
4 consider what were the means of Pandurevic's knowledge during these
5 critical hours. There is no evidence in the case that any of the people
6 who might have been able to give him information actually did give him
7 information and that he knew that the elements of the Zvornik Brigade
8 that were involved we now know about.
9 We reiterated the point again that by the 15th of July, we're
10 talking about 15 to 20 soldiers. Look at paragraph 1469. Or, expressed
11 another way, less than 0.4 per cent of the brigade's manpower. That's
12 roughly the equivalent of saying that Mr. Hocking has to know and needs
13 to know what one intern who's here for two weeks is doing on any
14 particular day.
15 The focus of this trial has obviously been on the Zvornik
16 Brigade, since its commander is on trial here. However, one has to place
17 into context that a relatively small number of local conscripts listed as
18 Zvornik Brigade members chose to act as security upon discovering that
19 large numbers of enemy soldiers were being detained in schools close to
20 their homes and that a few local drivers operated machines rather than
21 leave bodies to decompose. Prisoners were taken to Zvornik, guarded on
22 buses, put in schools, without the help of the Zvornik Brigade. Their
23 execution was carried out by military policemen from the Drina Corps and
24 the Bratunac Brigade, soldiers from the 10th Sabotage Detachment, and
25 other unidentified and unidentifiable units. Also, civil authorities
1 took part, and machineries from private companies were being used.
2 Against this backdrop, the sort of involvement you have heard from those
3 few battalion soldiers is peripheral.
4 I'm going to move on now to the drive past Orahovac on the 17th
5 of July, paragraph 1485. The title to this section of the Prosecution
6 brief, in our submission, should be struck out, that there's no
7 evidential basis for suggesting that Pandurevic and Obrenovic drove past
8 Orahovac in the afternoon of the 17th, and whoever drafted this title did
9 so either in complete ignorance of the evidence or in a deliberate
10 attempt to mislead. The only evidence that Pandurevic and Obrenovic were
11 together in the area of Orahovac on the 17th of July comes from the
17 Prosecution's final brief at all, the more so because this was not put to
18 Pandurevic when he gave evidence. And we say by reason of that alone,
19 you should just disregard the submission.
20 At paragraphs 1505 to 1511, the Milici hospital patients and the
21 Branjevo survivors --
22 JUDGE AGIUS: Mr. Haynes, I hate to interrupt you, but we have
23 done this with every other Defence counsel. You have gone beyond the two
24 and a half hours that we had fixed, established. How much longer do you
25 think you need?
1 MR. HAYNES: I thought I'd had an hour and 20 at the first break,
2 so that means I've done what?
3 JUDGE AGIUS: You've passed the two hours.
4 MR. HAYNES: Okay. Could I have 20 more minutes?
5 JUDGE AGIUS: Okay. Yes.
6 MR. HAYNES: And can I have a second request?
7 JUDGE AGIUS: Yes.
8 MR. HAYNES: Can I have a break now, and that will make the next
9 20 minutes more cohesive, I think.
10 JUDGE AGIUS: Okay. We'll have a break of 25 minutes.
11 --- Recess taken at 12.15 p.m.
12 --- On resuming at 12.46 p.m.
13 JUDGE AGIUS: Yes, Mr. Haynes.
14 MR. HAYNES: Thank you. Mr. President.
15 I was, just before the break, going to deal with the question of
16 the Milici patients at paragraphs 1505 to 1511 of the Prosecution's brief
17 and what I shall call the Sljivancanin point.
18 The Trial Chamber needs to look at care, we submit, at P1309, an
19 intercepted radio communication between General Pandurevic and Cerovic.
20 We say it is plain or at least it is a reasonable inference to draw in
21 Vinko Pandurevic's favour that he, during that conversation, was entitled
22 to believe that the wounded prisoners were being taken to Batkovici, a
23 prisoner exchange camp, and that Cerovic was arranging that. So whether
24 it was Popovic, Cerovic, or somebody else who was overseeing the
25 operation, that is Pandurevic's evidence as to what he thought would
1 happen, so he did, we submit, satisfy himself sufficiently that those
2 prisoners would be afforded the treatment they were entitled to. Add to
3 that, please, the fact that contemporaneously with this, Pandurevic did
4 successfully arrange for all the other prisoners at Standard to go to
5 Batkovic and be exchanged. As a matter of fact, several of those
6 prisoners had been people who escaped executions. Indeed, there was no
7 reason to suppose, during that period of time, that anybody taken
8 prisoner was more or less likely to be a witness of war crimes than
9 anybody else, so the fact that he sent 150 for exchange is an indication
10 that they were all being treated similarly.
11 The intercept is P1309, not P1009.
12 I'm going to move on very swiftly now, please, to the question of
13 effective control of the killing operation in Zvornik.
14 In determining the individual criminal responsibility as well as
15 the command responsibility of the accused on this indictment in relation
16 to the murders in Zvornik, we submit that you're going to have to ask
17 yourselves six questions, from our point of view: Was Beara in Zvornik
18 at the various execution sites? Was Popovic in Zvornik at the various
19 execution sites? Under whose orders were they? What units and what men
20 did they have at their disposal? Were they empowered to give orders to
21 those men and/or units? And did elements of the Zvornik Brigade receive
22 orders from them which they obeyed?
23 It's perhaps inescapable, in such a large piece of work, put
24 together under such pressure, that the Prosecution's brief should show
25 substantial and significant inconsistencies, but it does, and there is no
1 area where it shows more marked inconsistencies than in the way it pleads
2 its case against Vinko Pandurevic, as opposed to the way it pleads its
3 case against the security officers in the dock. To give one classic
4 example, there are two paragraphs which are repeated virtually verbatim
5 but for one critical word.
6 In paragraph 1583, the Pandurevic section, you'll find the
7 Prosecution alleging that in the famous three and a half thousand parcels
8 intercept, Beara is calling Krstic because he needs his authority to take
9 resources for the murder operation, whereas in paragraph 2270, in the
10 section of the brief that pleads the case against Beara, they say that
11 Beara is calling Krstic because he needs merely his assistance. Those
12 two words are far from synonymous.
13 In relation to the section of the case pleaded against
14 Pandurevic, the only piece of evidence which the Prosecution rely on to
15 show that what was going on in Zvornik was an example of the normal
16 operation of the chain of command is that intercept. They rely on
17 nothing else. We submit that that interpretation of that intercept is
18 completely wrong. It doesn't show the operation of a normal chain of
19 command at all. Krstic and Beara are not connected through any normal
20 chain of command. Neither is subordinate or superior to the other.
21 Beara's superior is Tolimir or Mladic, and Krstic's superior is Mladic.
22 The Prosecution agrees with that at paragraph 2260. Krstic's subordinate
23 in the circumstances would be Pandurevic, of course, who is not mentioned
24 by either of them during the course of this conversation at such a
25 critical time.
1 Moreover, Krstic's suggestion that Beara should take units of the
2 Bratunac Brigade or from the MUP indicates no normal chain of command
3 whatsoever. In relation to that, it was Judge Prost who pointed out the
4 quote used a couple of times in the Prosecution's final brief that Beara,
5 Popovic, were doing what they wanted, taking whomever they wanted
6 wherever they wanted, and there is a remarkable echo of that phrase from
7 poor, weak Dragan Jokic in the very text of this intercept. You may
8 think, when Judge Prost put that question to Mr. McCloskey, he rather
9 ducked the issue, but we will come to it more fully now as we analyse the
10 Prosecution's case against Beara and Popovic.
11 I should briefly respond to something Mr. Ostojic said the other
12 day about that intercept. I mean him no harm, but my submission is when
13 his client uttered the words "I have three and a half parcels to
14 distribute," he was there accepting a measure of responsibility which he
15 was taking on.
16 Contrary to the Prosecution's submission in closing, and their
17 final brief, in our submission, makes it can plain that their case
18 against Colonel Beara was that he was in command of a joint task or
19 operation. Without further elaboration, we invite your attention
20 specifically to the following paragraphs of the Prosecution's final
21 brief: 2186, 2223, 2300, 2301, Beara is criminally responsible for
22 planning and instigating the crimes; 2194, he coordinated and oversaw the
23 crimes; 2199, he had a pivotal role in the organisation, coordination and
24 oversight of the JCEs charged in the indictment; 2227, coordination and
25 control of the burial process; 2283, in charge of the operation; 2284,
1 planned and ordered to have the prisoners transferred to Zvornik for
2 detention and execution; 2301, ordered the commission of the crimes for
3 which he is charged in the indictment.
4 If you required any corroboration that those sort of terms, in
5 contemporary Yugoslavian literature, were all command functions, you need
6 look no further than P699, page 13 in the English, points 13, 14, and 15,
7 the definition of command functions.
8 This section of the brief also, we submit, shows the plainest
9 operation of an abnormal chain of command. 2189, 2221, 2223, Beara
10 instructing Momir Nikolic on the 13th of July to go to Zvornik and pass
11 on an order to Drago Nikolic to prepare the transfer of the prisoners,
12 without reference to Pandurevic, Obrenovic, or Blagojevic; 2191, the
13 meeting on the morning of the 14th of July between Beara, Popovic and
14 Drago Nikolic at the Zvornik Brigade headquarters to plan the logistics
15 of the murder operation, again without reference or knowledge of
16 Pandurevic or Obrenovic; 2198, supervising the reburial work of the
17 security officers without the knowledge of Obrenovic; 2252, Beara and
18 Nikolic were both closely involved in the management of the murder
19 operation, and when there were problems with the operations, others
20 looked to them to solve them, again not to Pandurevic; 2253, Beara was
21 working after the Zvornik Brigade headquarters on the morning of the
22 15th, looking for personnel to execute the prisoners detained at Rocevic
23 and Pilica, without reference to Pandurevic; 2239, 2241, Beara asked
24 PW-104 for assistance with the provision of equipment and machinery, and
25 involved municipal utility companies.
1 I have to slow down.
2 And, lastly, 2301, Beara was relaying or passing on the illegal
3 orders from superiors Mladic and Tolimir to subordinate security officers
4 as well as to the units they engaged to carry out tasks associated with
5 the removal and destruction of the Muslim population.
6 Now, a similar exercise could be carried out in relation to
7 Mr. Popovic, but I won't do so. It's really rather too boring. But on
8 the 10th -- on the 3rd of September of this year, in closing argument,
9 perhaps more lyrically, Mr. Vanderpuye said this in relation to him:
10 "The evidence concerning Bisina shows the elements of the
11 Drina Corps military police over which Mr. Popovic has control, as well
12 as the 10th Sabotage Detachment, were principally involved in carrying
13 out the executions in Bisina. I will note that these same elements were
14 involved in the crimes that were perpetrated at the Branjevo Military
15 Farm on the 16th of July. The only thing that Mr. Popovic was doing in
16 Bisina on the 23rd of July, 1995, as the most senior officer present
17 there, was coordinating, organising, and carrying out orders that he
18 would have received from his commands to execute these men. There is
19 really no other explanation for his presence there, no other explanation.
20 The evidence in this case shows that his knowledge, intent, and conduct
21 were the same concerning the prisoners that were held in the schools in
22 the Zvornik area, the Orahovac school, where he was present on the 14th
23 of July, the Rocevic school, where he was present on the 15th of July,
24 the Kula school, where he was present on the 16th of July. The nature
25 and extent of his involvement in the Bisina executions virtually
1 parallels the circumstances of his presence and participation in the
2 crimes that were committed in Zvornik."
3 Now, this isn't Dragan Jokic talking, this is counsel for the
4 Prosecution, but he might just as well have said on the 14th, 15th and
5 16th of July, Beara and Popovic were running around taking whomever they
6 wanted wherever they wanted.
7 In relation to Drago Nikolic, the Trial Chamber will wish to ask
8 itself whether he received advance notice of the arrival of the prisoners
9 in Zvornik, a matter about which I think it is specifically alleged my
10 client was lying when he said that is what he was told by
11 Dragan Obrenovic. In order to determine that, we submit, close regard
12 needs to be had to the following pieces of evidence: Firstly, the
13 vehicle work logs relating to the car in which he would have travelled on
14 the 13th and 14th of July, paying multiple visits to the detention sites;
15 secondly, that those schools, and each of them, was ready to receive
16 prisoners before they arrive; and, thirdly, the presence of Zvornik
17 Brigade military policemen who were under his control prior to the
18 arrival of the prisoners at Orahovac and Rocevic. Of course he had
19 advance knowledge that the prisoners were coming.
20 The next question you'll wish to ask yourself is: Who did he
21 tell? In answering that, regard will doubtless be had to the fact that
22 even according to his own theory of command responsibility, he had to
23 tell Obrenovic, and at the time he would have found out, he did find out,
24 at that time he was stuck at the forward command post as a duty officer
25 and needed Obrenovic's permission to leave his post. Of course he told
1 Obrenovic, if only for that reason.
2 Mr. Vanderpuye also told us the other day that the security
3 organs control the military police. With that, we agree, and we have
4 found in this case a body of agreement for that proposition, in spite of
5 the submission of counsel for Drago Nikolic, Pandurevic is not the only
6 person who disagrees with Peter Vuga's opinion on command and control of
7 the military police. PW-168 disagrees with it as well, as did
8 Miodrag Dragutinovic, and they should know, they were the ones who had to
9 operate the system. Peter Vuga did not.
10 We reiterate moreover, our point, our submission, that minute
11 analysis of the Rules is a pointless exercise. Mass murder of prisoners
12 isn't in the rules. It isn't defined as counter-intelligence work, it
13 isn't defined as any sort of work, and you would be better employed
14 looking at who was doing it and who was ordering them to do it.
15 A point is made furthermore at paragraph 1591 of the
16 Prosecution's brief, supported only by the evidence of PW-168, that any
17 orders given by a senior officer present should be reported to the
18 commander of the unit at the first available opportunity. Three brief
19 points which will become the style of these last few minutes, I fear:
20 PW-168 is the only witness who expresses this opinion. Notably, Butler
21 didn't, nor did anybody else who helped command within the VRS.
22 Secondly, PW-168's evidence on this point contradicts Article 17 of the
23 Provisional Service Regulations. And, lastly, in any event, we are
24 dealing with illegal orders in this case. The standard military practice
25 or theory is of limited value.
1 Before I pass on, two short points arising from some remarks of
2 Mr. McCloskey the other day.
3 The suggestion that Beara has or had less authority than Krstic
4 in Zvornik is ridiculous. Beara's special importance to Mladic is
5 highlighted by the Prosecution in paragraph 2183. By contrast, Krstic
6 had only become a commander on the 13th of July.
7 Secondly, as to the Prosecution's glib submission that the
8 difference between the criminal responsibility of commanders and security
9 officers is "immense," that is just historically and jurisprudentially
10 inaccurate. In the Blagojevic case, the Trial Chamber which heard all
11 the evidence sentenced Momir Nikolic, who pleaded guilty and cooperated
12 with the Prosecution, to a much longer term of imprisonment than to his
13 own commander, Blagojevic, who contested his guilt through trial.
14 The use of Zvornik Brigade resources during the period of the
15 executions. Pandurevic gave evidence about which he wasn't challenged
16 that units such as engineering and logistics were effectively
17 self-ordering and that he rarely if ever got involved in how the brigade
18 resources were employed. There is also a body of evidence that shows
19 such organs ran through functional chains of command within the brigade
20 and above, and that's dealt with at paragraphs 238 to 242 of our brief.
21 Whilst, of course, it can't be denied that people who were members of the
22 Zvornik Brigade Engineering Company did drive machines, that is not
23 something ordinarily that Pandurevic would have needed to authorise or
24 would have needed to know about, on the evidence in this case.
25 Significantly, all logistical and engineering equipment was put to use
1 first whilst Obrenovic was in command. That is confirmed by the
2 Prosecution, where it says elements of the Zvornik Brigade continued to
3 take part in the murder operation and after Pandurevic's return;
4 paragraph 1272. There is no evidence that Pandurevic actually knew that
5 any of this machinery was being used or that any of these drivers were
6 employed in this way, other than what he was told by Obrenovic. There is
7 no evidence that Pandurevic spoke to Jokic and was informed by him of any
8 of this at this time. And there is no evidence, in the ordinary course
9 of events, that the brigade commander would know such things. So the
10 repetitive assertion made by the Prosecution about Pandurevic's knowledge
11 and authority is empty. No suggestion of express authority or knowledge
12 was ever put to him.
13 Baljkovica. The Prosecution have not condescended at all to
14 detail about the numbers of casualties, either during this trial or
15 during their investigations. They have left that to us, the Defence.
16 They have left us to show you that the losses were far from spectacular
17 and, in particular, as known to Pandurevic at the time of the opening of
18 the corridor, were scarcely significant. The important or operative
19 number of casualties, you may think, is that which he knew about at the
20 time he chose to open the corridor. Nearly all of the hard evidence
21 about the events of Baljkovica on the 15th and 16th of July were put
22 before the Trial Chamber by the Defence. Although they had it, the
23 Prosecution did not intend for you to hear the taped radio communications
24 between Vinko Pandurevic and Semso Muminovic. It wasn't on their 65 ter
25 list. We had to point out to them that it existed; transcribe it,
1 translate it, and play it for you. It was not us who placed before you
2 the accurate lists -- it was us, not them, who placed before you the
3 accurate lists of deceased, wounded, and missing, and it was us, through
4 our client, not the OTP, through its military analyst, who graphically
5 illustrated to you the disposition of all the VRS forces in the region at
6 Pandurevic's disposal, as well as giving you an insight into the
7 condition of the column by the time of the opening of the corridor.
8 We thought you needed to know these things to judge Pandurevic's
9 motives. The Prosecution didn't want you to know them, and they still,
10 in their brief and oral arguments, urge you to ignore them. The reason
11 is perfectly simple. It damages beyond repair the Prosecution's claims
12 that Pandurevic had genocidal intent, was a member of the JCE to commit
13 mass murder. What is particularly disturbing about the way in which the
14 Prosecution has conducted its case in relation to Baljkovica is the
15 startling failure to put to Pandurevic in cross-examination many of the
16 assertions it now relies upon in its final brief.
17 At the time he took the decision to open the corridor, Pandurevic
18 could only have believed he lost ten men. That is what he wrote in P334,
19 the irregular combat report of the 16th of July. The hearsay and
20 inaccurate estimates of other people listed in paragraph 1597 of the
21 Prosecution brief are irrelevant. Pandurevic was not cross-examined
22 about his beliefs as to the precise number of dead, missing, or wounded.
23 Secondly, Popovic's opinion on what was militarily justifiable is
24 worthless. Apart from anything else, the evidence shows that he never
25 went to Baljkovica on that day. And in our submission, that particular
1 assertion lies ill in the mouth of the Prosecution, who so enjoyed joking
2 with Obrenovic about the unlikelihood of Popovic ever putting himself in
3 the way of a bullet or danger in his interview in 2001. This is the
4 point that the Prosecution can't get 'round, nor do they even attempt to
5 do so: Pandurevic's offer to let the whole column go, soldiers and
6 civilians, was first made on the 15th of July. You heard it. The only
7 thing that stopped everybody being let go before he had even written the
8 report of the 15th of July was a quibble over whether they could take
9 their arms with them. It's on tape. It's 7D656. Richard Butler didn't
10 even want to listen to that tape. The Prosecution didn't want you to
11 know about it because, quite simply, it's the end of their theories about
12 Pandurevic being compelled to let the Prosecution go.
13 Sorry, it's been three years.
14 You have been to Baljkovica. You will remember it is down in a
15 dip, surrounded by hills which represent the forward defence lines of the
16 Zvornik Brigade. The Prosecution's desperate military theory in
17 paragraph 1605 of its brief completely ignores the fact that the point
18 which Pandurevic chose for the Muslims to cross the confrontation line
19 was a really vulnerable one for the Muslim column. It also completely
20 ignores the evidence of both Pandurevic and PW-168 that he could easily
21 have withdrawn his troops a short distance and covered the area with
22 artillery fire, obliterating the whole column.
23 The quote from Pandurevic's irregular combat report of the 16th
24 of July: "I consider Krivaja 95 as not complete as long as a single
25 enemy soldier or civilian remains behind the front-lines," is, of course,
1 ambiguous. The Prosecution, of course, want you to conclude that it is
2 indicative of a pre-existing intention to commit forcible transfer, but
3 bearing in mind, we all agree, that the break-out of the 28th Division
4 towards Nezuk, creating in the process a serious security situation
5 behind Serb lines, was not foreseen by anybody before the commencement of
6 Krivaja 95, it is at least equally possible to construe this sentence as
7 meaning that the security situation had to be tidied up before the
8 operation could be considered to be over. We do, of course, also remind
9 you of the extraordinarily similar conduct of Pandurevic in June 1993, at
10 Ustipraca and the practical manifestations of his relationship with
11 Semso Muminovic, both of which we submit are highly relevant in
12 determining his true motives for allowing the column to pass.
13 These oral arguments won't make it to September. I don't mean
14 September 2009; I mean September 1995. I have had to, to deal with all
15 counts on this indictment, address -- through the evidence and the
16 submission, I mete all forms of criminal liability, and mete 117 pages
17 specifically devoted to my client in the Prosecution's brief. There are,
18 of course, things I've had to leave to one side. I can only hope that
19 if, after all this time, there's something you need my help on, you'll
20 ask me now, because now is the chance.
21 I am not going to say anything more than I've said in my own
22 final brief and which Mr. Josse so eloquently laid out the other day
23 about this being a case in which there's already a pre-existing
24 jurisprudence on sentence, and that the "give them all life" approach is
25 really not helpful to you who might be looking for guidance as to where
1 people fit within the scheme of things, according to the Prosecution, but
2 I will conclude with what I really started with.
3 We invite you, in addition to the events that directly relate to
4 Vinko Pandurevic in July of 1995, to look a bit wider. We invite you to
5 look at Visegrad in April of 1992, to the contact with Semso Muminovic
6 and the cease-fires throughout the whole war, permitting people to grow
7 their crops. We do invite you to look at Kamenica, unashamedly, in
8 January of 1993 and to look at Ustipraca in June of 1993, and to look at
9 the passing of the column, and to look at Silikovic [phoen], the Muslim
10 communications officer; wounds treated, fed and released; the eight boys
11 on the 18th of July at the 4th Battalion command post, released from work
12 and sent back to Semso Muminovic; the 150 prisoners in the prison at
13 Standard whom Vinko Pandurevic secured exchange for at Batkovic. That's
14 probably ineloquently expressed, but you know what I mean.
15 I'm not going to romanticise it by invoking the image of
16 Schindler, as did Mr. McCloskey, but there was something that
17 Vinko Pandurevic said, which I will commend to you, and he said this:
18 "Those who are in my hands survived."
19 And that's true. Those who were in his hands survived.
20 JUDGE AGIUS: Thank you, Mr. Haynes.
21 [Trial Chamber confers]
22 JUDGE AGIUS: We have some questions for you, Mr. Haynes.
23 Judge Prost.
24 JUDGE PROST: Thank you.
25 Mr. Haynes --
1 MR. HAYNES: You're speaking a bit softly. I better put my
2 headphones on.
3 JUDGE PROST: I've never been accused of that, Mr. Haynes.
4 First, on the question of command and control, there are various
5 references throughout your brief on this particular issue, but there's
6 one particular question or one particular point I'm not clear on, and
7 it's a statement you make at paragraph 455 in the brief, page 103, and
8 it's, I believe, the only time or at least the only time I could find
9 when you make the statement that as commander of TG-1, Mr. Pandurevic was
10 not the commander of the Zvornik Brigade. And what I'd like to know
11 is -- is your position on that. Specifically, is it your position that
12 at any point from the 4th to the 15th of July, Vinko Pandurevic was not,
13 at law or in fact, the commander of the Zvornik Brigade?
14 MR. HAYNES: I'm looking at the form of that question.
15 JUDGE PROST: I'm not asking about in command, or responsibility,
16 or effective control at this point. I'm asking, squarely: Was he at any
17 point not the commander of the Zvornik Brigade? The way it's framed in
18 that particular paragraph, it references to his other responsibilities at
19 the time.
20 MR. HAYNES: I'm sorry. You're -- in titular sense, you're
21 saying does he ever cease to --
22 JUDGE PROST: To be the commander of the Zvornik Brigade during
23 that period.
24 MR. HAYNES: In a titular sense, no. To give a ridiculous
25 example, were he to have gone to a cocktail party, people would have
1 introduced him as the commander of the Zvornik Brigade, yeah.
2 JUDGE PROST: Thank you.
3 Now moving then to the question of effective control, and here
4 I'm speaking about effective control as it's been defined in the
5 jurisprudence for the purpose of determining the superior/subordinate
6 relationship, in the abstract, to begin with, is it your position -- or
7 what is your position as to whether more than one person can have
8 effective control with respect to the same unit or brigade at a
9 particular point in time?
10 MR. HAYNES: The simple answer is to that is: Yes, they can. I
11 can't ignore the jurisprudence on that.
12 I've foreshadowed this, I think, briefly in my submission today.
13 Effective control is an evidential question, rather than a legal one, and
14 we do invite you to look very carefully at the effective control of
15 people in the detention/execution areas. But the answer to your question
16 is, no, I'm not submitting for a minute that people, as it were, switched
17 from one to the other permanently.
18 JUDGE PROST: And then taking the very specific situation, then,
19 Mr. Haynes, with reference to a commander and a deputy commander, is it
20 your position that both a commander and a deputy commander can have
21 effective control over the same unit at the same time? And, again, I
22 appreciate effective control is always a factual, evidentiary
23 determination. Is there anything barring both the deputy commander and
24 the commander having effective control?
25 MR. HAYNES: Theoretically, there is nothing to prevent that. In
1 practice, I find it hard to imagine an example where it would happen.
2 JUDGE PROST: And we're talking about effective control, not the
3 exercise of effective control, but actual effective control, the material
4 ability that's spoken about --
5 MR. HAYNES: I understand that.
6 JUDGE PROST: -- the in the jurisprudence.
7 MR. HAYNES: Yes.
8 JUDGE PROST: Is there any difficulty, then, with both a
9 commander and a deputy commander having effective control in that sense?
10 MR. HAYNES: No.
11 JUDGE PROST: Thank you.
12 And the one final point, and I'm going to take you to the
13 Rule that you've cited with reference to the Prosecution in this case,
14 and that is Rule 90(H)(2).
23 [Private session]
25 [Open session]
1 JUDGE AGIUS: All right. I don't think we have any further
2 questions for you at this stage, Mr. Haynes.
3 Now, at the beginning of the sitting, we were informed that you
4 would like to address the Chamber, Mr. Bourgon. Very briefly, please.
5 MR. BOURGON: Indeed, Mr. President.
6 We've been informed on Friday that the Prosecution would like to
7 take the floor for about 15 minutes for rebuttal. On behalf of
8 Drago Nikolic, there are three questions I would like to address after
9 that, and these questions are two that were put to me by the
10 Trial Chamber, which I would like to come back to, and the third question
11 arises from a question which was put to the Prosecution earlier on, which
12 is not specifically addressed either in our brief or in our oral
13 arguments I would like to come back to, and that has to do with the
14 nexus. So I would like no more than 15 minutes to address these three
16 And I take this opportunity, Mr. President, to -- I'm not sure if
17 my colleague intends to answer this point, but I raised during my oral
18 arguments, and that was at transcript page 34530, line 20, to 34531,
19 lines 10, the issue of Milici hospital which no longer appears in the
20 Prosecution's pleadings, so I'd like to know, if my colleague does not
21 answer this question, I would like the question to be put to him so that
22 I know where my client, Drago Nikolic, stands regarding Milici hospital.
23 Thank you, Mr. President.
24 JUDGE AGIUS: Thank you. And you're suggesting that you go, if
25 we grant you authorisation, after Mr. McCloskey or before?
1 MR. BOURGON: After, Mr. President.
2 JUDGE AGIUS: Yes. Let's hear what Mr. McCloskey has to say.
3 MR. McCLOSKEY: Given, as you've been reminded, as we all know,
4 it's the Prosecution's burden, the Prosecution should go last in
5 responding to this -- any new evidence.
6 [Trial Chamber confers]
7 JUDGE AGIUS: We have roughly 15 minutes left, Mr. Bourgon. The
8 decision is to grant you the request that you have asked, but it's also
9 our decision that you go first, and then we hear what the Prosecution has
10 to say, and, if necessary, consider whether it's the case of asking
11 you -- of allowing you to say anything further. So you will use the next
12 15 minutes for this purpose.
13 Thank you.
14 MR. BOURGON: Thank you, Mr. President.
15 I will move immediately to the first question, which was put to
16 me in private session, so I think we should go into private session,
17 Mr. President.
18 JUDGE AGIUS: Sure. Let's go into private session, please.
19 [Private session]
11 Pages 34828-34829 redacted. Private session.
13 [Open session]
14 JUDGE AGIUS: We are back in open session.
15 MR. BOURGON: The second question posed to me, Mr. President, had
16 to do with conspiracy, and that was at transcript page 34548. The
17 question related to our temporal limitation argument, and on that day,
18 Mr. President, I said the following: I said that our theory of
19 conspiracy to commit genocide is a continuing crime, and I said that this
20 theory had been rejected by the ICTR. However, what I should have said
21 is that we submit that conspiracy to commit genocide is not a continuing
22 crime on the basis of the ICTR case law, holding that incitement to
23 commit genocide is not a continuing crime. The Appeals Chamber, in
24 Nahimana, held at paragraph 723 that the crime of direct and public
25 incitement to commit genocide was completed as soon as the discourse in
1 question is uttered or published, even though the effects of the
2 incitement may extend in time.
3 It is, therefore, our submission that for the same reason,
4 conspiracy to commit genocide is not a continuing crime.
5 The Zigiranyirazo Trial Chamber - sorry for the
6 pronunciation - considered at paragraph 389 of that judgement that the
7 crime of conspiracy to commit genocide is complete at the moment of
8 agreement, regardless of whether the common objective is ultimately
10 Similarly, the Musema Trial Chamber held at paragraph 194 that
11 the crime of conspiracy to commit genocide is punishable, even if it
12 fails to produce a result.
13 The Prosecution alleges in this case that the agreement to commit
14 genocide would have been concluded on 11 or 12 July in Bratunac. That is
15 paragraph 34 of the indictment, and that the mass killings commence on 13
16 July. That is paragraph 30 of the indictment. This means the conspiracy
17 to commit genocide was completed on 11 and 12 July and that the genocide
18 would have commenced on 13 July. It is therefore the Defence's position
19 that on the basis of the ICTR case law, the conspiracy to commit genocide
20 would have been completed on 11-12 July and that the situation thereafter
21 is regulated by the law relative or relating to genocide.
22 Consequently, anyone allegedly involved in the crimes committed
23 after the conclusion of the agreement to commit genocide on 11 and 12
24 July could possibly incur liability for the crime of genocide, provided,
25 of course, that all relevant conditions have been met, but not for the
1 crime of conspiracy to commit genocide.
2 Finally, it is not excluded that the example given by Judge Prost
3 of Judges Stole and Kwon joining a conspiracy, concluded by Judge Prost
4 and Judge Agius, could result in liability for conspiracy for Judges
5 Stole and Kwon if the criminal activity has not commenced prior to Judges
6 Stole and Kwon joining the conspiracy. However, if the criminal activity
7 has commenced, we submit that in this particular example, Judge Stole and
8 Kwon cannot join the conspiracy, but rather their conduct would be
9 regulated by the law relating to the criminal activity that would have
10 been committed in such an example.
11 I move quickly, Mr. President, to the last question, which is the
12 one that was asked to the Prosecution in two places at transcript 34261
13 and transcript 34288, relating to the nexus which is required between the
14 military column and the attack on Srebrenica within the concept of crimes
15 against humanity and the "chapeau" requirements. Our position in this
16 regard is the following:
17 First, we acknowledge the decision of the Appeals Chamber that
18 crimes against humanity generally can be committed against combatants
19 "hors de combat," or, in other words, combatants "hors de combat" can be
20 victims of crimes against humanity, but that's only the beginning and
21 part of the argument. The underlying crime must be committed, of course;
22 in this case, forcible transfer. In the absence of any specific
23 allegations in this regard, if we talk about forcible transfer,
24 lex specialis which applies is IHL, International Humanitarian Law, and
25 that would be Article 49 of Geneva Convention 4 and not Common Article 3,
1 as mentioned by my colleague from the Prosecution. This fits in the
2 economy of Article 5 of the Statute, which requires that an attack be
3 directed at any civilian population.
4 Hence, even if the Trial Chamber was to find that forcible
5 transfer can be committed against prisoners of war, for the purpose of
6 crimes against humanity two additional requirements must be filled:
7 First, the commission of an act which, by its nature or consequences, is
8 objectively part of the attack, and this must be coupled with, of course,
9 knowledge on the part of the accused that there is an attack on the
10 civilian population and that his acts, or parts there of, if the accused
11 does not have both the knowledge of the attack directed against the
12 civilian population and the knowledge that his acts are part of this
13 attack, then he cannot be found guilty of a crime against humanity.
14 In Mrksic, the Appeals Chamber said that the fact that the
15 perpetrators of the crime acted in the understanding that the victims of
16 the crimes were selected both on their perceived involvement in the
17 Croatian armed forces and, as such, were treated differently from the
18 civilian population, precludes that they intended that their acts form
19 part of the attack against the civilian population of Vukovar, and this
20 rendered their acts so removed from the attack that no nexus can be
21 established; paragraph 42.
22 We believe --
23 THE INTERPRETER: Kindly slow down. Thank you very much.
24 MR. BOURGON: I apologise. I'm just trying to fit within the 15
25 minutes, and I'm almost done. I apologise.
1 We believe that the situation in this case concerning the men
2 from the column, on one example, and also the men separated at Potocari,
3 which is another example, but that in both cases these men were also
4 treated differently from the local population. In our submission, they
5 were legitimately transported as prisoners of war to detention
6 facilities. And the evidence, of course, shows that the attacks directed
7 at the column was legitimate because the attackers acted in the
8 understanding that they were engaging members of the ABiH, or combatants,
9 or civilians who directly participated in the hostilities, which is the
10 part that was already covered in our brief, so I'm not going to expand on
11 that. But the thing that the attack could have been attack lawfully, it
12 is incorrect for the Prosecution to talk about a grey area today.
13 The column was a legitimate attack, and the attackers, when they
14 attacked the column, they were not attacking or doing acts which form
15 part of the attack against the civilian population of Srebrenica, which
16 the Prosecution acknowledge in responding to the Trial Chamber's
17 question, began much earlier and dealt with something completely
18 different from the column retreating and being engaged.
19 The lex specialis again which applies in such circumstances is
20 the law of armed conflict or IHL, and the fact that the column could have
21 been attacked lawfully precludes the qualification of these acts as
22 crimes against humanity.
23 I could -- I had more, but I'll stop here, Mr. President.
24 I think I made the point that I wanted to make.
25 The last thing I can add is: There are -- the understanding of
1 those who attacked the column is one thing. The understanding of those
2 who separate the men in Potocari is a second thing. But what is
3 important for our client is the fact that Drago Nikolic, when he is in
4 the Zvornik area, the information that he has is about prisoners of war
5 and nothing about that this would be part of the attack on the civilian
6 population of Srebrenica.
7 Thank you, Mr. President.
8 JUDGE AGIUS: Thank you, Mr. Bourgon.
9 Mr. McCloskey, what's your forecast for tomorrow, now that you
10 have just heard Mr. Haynes and Mr. Bourgon?
11 MR. McCLOSKEY: I hope not to take more than 15 minutes for two
12 different responses, to Pandurevic and to Borovcanin. I will review
13 everything again, try to get it down to the essence, and I would hope no
14 more than 30 minutes. I don't think I have more than 30 minutes left in
16 JUDGE AGIUS: Okay, thank you.
17 And that means, Mr. Krgovic, Mr. Josse, and Ms. Nikolic,
18 Mr. Bourgon, please, your clients will be expected to make their
19 statements tomorrow. Okay. You may agree amongst yourselves who goes --
20 who goes first.
21 Yes, Mr. Josse.
22 MR. JOSSE: Yes. There are also a small number of corrections
23 from Friday's transcript which I'd like to make tomorrow, if I may,
24 please. It will take no time at all.
25 JUDGE AGIUS: Of course. That applies to everyone. Thank you.
1 We'll stand adjourned to tomorrow morning at -- tomorrow is in
2 the afternoon at quarter past 2.00. Thank you.
3 --- Whereupon the hearing adjourned at 1.46 p.m.
4 to be reconvened on Tuesday, the 15th day of
5 September, 2009, at 2.15 p.m.