Tribunal Criminal Tribunal for the Former Yugoslavia

Page 59

 1                           Monday, 2 December 2013

 2                           [Appeals hearing]

 3                           [Open session]

 4                           [The Appellants entered court]

 5                           [The Appellant Miletic not present]

 6                           --- Upon commencing at 9.45 a.m.

 7             JUDGE ROBINSON:  Madam Registrar, please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  This is case

 9     IT-05-88-A, the Prosecutor versus Vujadin Popovic, Ljubisa Beara,

10     Drago Nikolic, Radivoje Miletic, and Vinko Pandurevic.

11             JUDGE ROBINSON:  Thank you very much.  May I have the

12     appearances, beginning with the Prosecution.

13             MR. ROGERS:  Good morning, Your Honours.  Paul Rogers for the

14     Prosecution, today, together with my colleagues, Ms. Lada Soljan,

15     Ms. Najwa Nabti, and our case manager, Mr. Colin Nawrot.  And,

16     Your Honours, I apologise for the pillar.  I can't see all of your

17     colleagues.

18             JUDGE ROBINSON:  Well, I believe the apology should come from

19     somewhere else.

20             And for the Defence, beginning with Mr. Popovic.

21             MR. ZIVANOVIC:  Good morning, Mr. President, and Your Honours.

22     For the Defence of Mr. Vujadin Popovic, Zoran Zivanovic and

23     Mira Tapuskovic.  Thank you.

24             JUDGE ROBINSON:  Thank you.  And for Mr. Beara?

25             MR. OSTOJIC:  Good morning, Mr. President, Your Honours.  My name


Page 60

 1     is John Ostojic and I'm here along with my colleague, Mr. Norman Sepenuk,

 2     on behalf of Ljubisa Beara.

 3             JUDGE ROBINSON:  Thank you.  For Mr. Nikolic?

 4             MS. NIKOLIC: [Interpretation] Good morning, Mr. President,

 5     Your Honours.  Jelena Nikolic, Mr. Stephane Bourgon, and Marlene Yahya,

 6     we represent the Defence of Mr. Nikolic today.  Thank you.

 7             JUDGE ROBINSON:  Yes.  And Mr. Pandurevic?

 8             MR. HAYNES:  Your Honour, for today's purposes, myself,

 9     Peter Haynes, and my case manager Helena Kaker.

10             JUDGE ROBINSON:  Thank you.  And Mr. Miletic?

11             MS. FAUVEAU: [Interpretation] Good morning, Your Honours.

12     Natacha Fauveau Ivanovic with my co-counsel Nenad Petrusic.

13             JUDGE ROBINSON:  Thank you.  Counsel for Mr. Miletic?  I'm

14     observing Mr. Miletic is not present.  And you will have something to say

15     to us about that?

16             MS. FAUVEAU: [Interpretation] Your Honour, may we go into private

17     session, please?

18             JUDGE ROBINSON:  Yes, certainly.  Private session.

19                           [Private session]

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 61











11 Pages 61-63 redacted. Private session.
















Page 64

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8                           [Open session]

 9             THE REGISTRAR:  We are in back in open session, Your Honour.

10             JUDGE ROBINSON:  Yes.  Mr. Ostojic, the Chamber has considered

11     your request, filed the 27th November 2013, to allow Mr. Norman Sepenuk

12     to take part in the oral submissions and, indeed, to make part of the

13     oral submissions on Mr. Beara's behalf.  The Prosecution has no objection

14     and the request is approved.

15             MR. OSTOJIC:  Thank you, Your Honour.

16             JUDGE ROBINSON:  I will now briefly outline the Trial Chamber's

17     findings and sentence, the appeals, and how we will conduct the

18     proceedings.

19             The trial judgement was rendered on the 10th of June, 2010, by

20     Trial Chamber II, composed of Judge Agius, Judge Kwon, and Judge Prost.

21     The late Judge Ole Bjorn Stole was the Reserve Judge.

22             The Trial Chamber found that a criminal enterprise existed to

23     murder able-bodied Bosnian Muslim men from Srebrenica in July 1995 and

24     that a joint criminal enterprise existed to forcibly remove the Bosnian

25     Muslim population from Srebrenica and Zepa in 1995.


Page 65

 1             With respect to Mr. Popovic and Mr. Beara, the Trial Chamber

 2     found them guilty of committing, as participants in the JCE to murder,

 3     genocide; conspiracy to commit genocide; extermination, as a crime

 4     against humanity; murder, as a crime against humanity and as a violation

 5     of the laws or customs of war; and persecution, as a crime against

 6     humanity.

 7             Mr. Popovic and Mr. Beara were both sentenced to life

 8     imprisonment.

 9             The Trial Chamber found Mr. Nikolic guilty of aiding and abetting

10     genocide; and committing, as a participant in the JCE to murder,

11     extermination, as a crime against humanity; murder, as a crime against

12     humanity and as a violation of the laws or customs of war; and

13     persecution, as a crime against humanity.

14             Mr. Nikolic was sentenced to 35 years' imprisonment.

15             The Trial Chamber found Mr. Miletic guilty, as a participant in

16     the JCE to forcibly remove, of murder, as a crime against humanity, by

17     majority, Judge Kwon dissenting; and persecution and inhumane acts,

18     forcible transfer, as crimes against humanity.

19             Mr. Miletic was sentenced to 19 years' imprisonment.

20             With respect to Mr. Pandurevic, the Trial Chamber found him

21     guilty of aiding and abetting murder, as a crime against humanity and as

22     a violation of the laws or customs of war, by majority, with Judge Kwon

23     dissenting; aiding and abetting persecution and inhumane acts, forcible

24     transfer, as crimes against humanity; and murder, as a crime against

25     humanity and as violation of the law or customs of war, pursuant to

Page 66

 1     Article 7(3) of the Statute.

 2             Mr. Pandurevic was sentenced to 13 years' imprisonment.

 3             Following the rendering of the trial judgement, the Prosecution,

 4     Mr. Popovic, Mr. Beara, Mr. Nikolic, Mr. Miletic, and Mr. Pandurevic

 5     appealed the trial judgement.

 6             Let me now turn to the appeals.

 7             In its grounds of appeal, the Prosecution requests the

 8     Appeals Chamber to, inter alia, one, convict Mr. Pandurevic of committing

 9     extermination as a crime against humanity, murder as a violation of the

10     laws or customs of war, and persecution as a crime against humanity

11     through his membership in the JCE to murder, or, alternatively, for

12     aiding and abetting extermination as a crime against humanity, murder as

13     a violation of the laws or customs of war, and persecution as a crime

14     against humanity of Bosnian Muslim civilians; two, convict Mr. Pandurevic

15     for having failed to prevent and punish his subordinates for their

16     criminal acts; and, three, revise Mr. Pandurevic's sentence.

17             In their responses, Mr. Pandurevic, Mr. Popovic, Mr. Nikolic, and

18     Mr. Miletic oppose the Prosecution's appeal as far as they are

19     individually concerned, while Mr. Beara did not respond.

20             Mr. Popovic's appeal brief did not follow the order of the

21     grounds set out in his Notice of Appeal.  Rather, he raises contentions

22     under ten different titles, requesting the Appeals Chamber to reverse the

23     convictions entered by the Trial Chamber and to enter a verdict of not

24     guilty on all counts.

25             Alternatively, he requests the Appeals Chamber to quash all

Page 67

 1     convictions and to order a new trial or to reduce his sentence.

 2             The Prosecution submits that the Appeals Chamber should dismiss

 3     Mr. Popovic's appeal in its entirety.

 4             Mr. Beara submits 40 grounds of appeal, requesting the Appeals

 5     Chamber to grant him a new trial, to dismiss the charges or to

 6     substantially reduce the sentence imposed on him.

 7             In response, the Prosecution submits that Mr. Beara's appeal

 8     should be dismissed in its entirety.

 9             Mr. Nikolic advances 22 grounds of appeal.  He requests that the

10     Appeals Chamber quash his convictions.  Alternatively, he requests a

11     revision of sentence, and depending on which grounds of appeal are

12     granted, he proposes what the new sentence should be.

13             The Prosecution responds that Mr. Nikolic's appeal should be

14     dismissed in its entirety.

15             Mr. Miletic presents 28 grounds of appeal, requesting that either

16     the trial judgement be quashed and his case be remanded to the

17     Trial Chamber for a trial de novo or that his sentence be reduced.  He

18     further submits that the Appeals Chamber should rescind the

19     confidentiality of the trial judgement which was rendered both in a

20     confidential and publicly redacted version.

21             The Prosecution responds that Mr. Miletic's ground of appeal

22     should be dismissed with the exception of ground of appeal 6 with respect

23     to forcible transfer as a crime against humanity.

24             Mr. Pandurevic presents four grounds of appeal, requesting the

25     Appeals Chamber to quash all his convictions and either, in addition or


Page 68

 1     in the alternative, to reduce his sentence.

 2             In response, the Prosecution requests that the Appeals Chamber

 3     dismiss Mr. Pandurevic's appeal in its entirety.

 4             I bring to your attention the timetable set out in the order for

 5     the agenda of the appeal hearing issued on 7th November 2013.

 6     I encourage the parties to use their allotted time wisely, bearing in

 7     mind the questions that the Appeals Chamber raised in the order for the

 8     preparation of the appeal hearing of 6 November 2013.  It has been well

 9     said that brevity is the soul of wit.  I say brevity is also the soul of

10     good lawyering.

11             I now invite counsel for Mr. Popovic to present his submissions.

12     I just make one other comment on housekeeping.  It's that although the

13     breaks have been set at 15 minutes, evidently we were being overzealous,

14     and we have been asked by the technical people that the break be

15     20 minutes.  So the breaks will be 20 minutes.

16             Counsel for Mr. Popovic, you may present your submissions.

17             MR. ZIVANOVIC:  Thank you, Mr. President.

18             In presenting Popovic appeal today, I will argue that the

19     Trial Chamber made factual errors resulting in a miscarriage of justice.

20     These errors concern the joint criminal enterprise which allegedly

21     emerged before and in the morning on 12 July 1995 and Popovic's

22     participation therein.

23             JUDGE ROBINSON:  Sorry to interrupt you.  I neglected to say that

24     you have 75 minutes.  Of course, nothing obliges you to use all of that

25     time.

Page 69

 1             MR. ZIVANOVIC:  Thank you, Mr. President.

 2             I will then describe the subsequent errors related to the

 3     conviction of Mr. Popovic for genocide, crimes against humanity, war

 4     crimes, committed after the fall of Srebrenica in July 1995, and

 5     Popovic's alleged genocidal intent.

 6             I shall also show that the Trial Chamber's assessment of crucial

 7     evidence departed from the standards for a reasonable trier of fact and

 8     that of beyond a reasonable doubt.  Such evidence includes that of PW101,

 9     168, Srecko Acimovic, and Momir Nikolic, as well as some documents.

10             I will then turn the floor over to Ms. Tapuskovic and she will

11     respond to the questions put by Your Honours.  And she will argue that

12     factual errors were made in respect of the numbers of victims including

13     the murders allegedly committed on 13 July 1995 at Jadar River,

14     Rasica Gaj and Cerska Valley, as described in our brief in paragraphs 203

15     through 210.

16             I will first demonstrate how the Trial Chamber's assessment of

17     the evidence was unreasonable.

18             Paragraphs 8 through 16 of Popovic's brief referred the

19     jurisprudence establishing the standards of reasonable Trial Chamber, and

20     the standard beyond a reasonable doubt.  I will not repeat it in my oral

21     submission.  As discussed in the brief, Momir Nikolic was the

22     Trial Chamber's sole source that the plan to murder Bosnian Muslim men in

23     Potocari began before the third Hotel Fontana meeting at 10.00 on

24     12 July 1995.  This was in error.  On the basis of Momir Nikolic's

25     evidence, the Trial Chamber found that Popovic had genocidal intent due

Page 70

 1     to his knowledge of the plan to murder from the time of its inception.

 2     I refer to trial judgement paragraph 1178.  Resting on his testimony

 3     about discussion in Bratunac before the operation began and statement

 4     that all balijas have to be killed.  It's in paragraph 1179 of the trial

 5     judgement.

 6             I'll not repeat our arguments set out in paragraphs 34 through

 7     168 of the brief except to state that the Trial Chamber selectively read

 8     the transcript as demonstrated in paragraphs 40 to 46 of the brief, that

 9     the Chamber erroneously relied on the errors in Nikolic's statement of

10     facts, as described in paragraphs 47 to 49 of the brief, while

11     disregarding the flagrant inconsistencies between the statement of facts

12     and Nikolic's testimony, as described in paragraphs 50 to 64 of the

13     brief.

14             The Chamber also completely disregarded a bulk of evidence which

15     proves that the separation process dealt solely with the screening, as

16     described in paragraphs 65 through 73.  Paragraph 66, footnote 107, of

17     Popovic's brief referred to evidence provided by Prosecution witnesses,

18     Muslim prisoners, DutchBat officers, and officers of the Army of

19     Republika Srpska who testified about the screening carried out on 12 and

20     13 July 1995.  The list of war criminals dated on 12 July 1995 strongly

21     demonstrated that the main objective of the separation in Potocari was to

22     identify potential war criminals.  Indeed, as a result of these

23     screenings, many Muslim men left Potocari to the Muslim-held territory,

24     as described in paragraphs 157 through 162 of the brief.

25             The screening efforts actually demonstrated the intent of the

Page 71

 1     Bosnian Serb forces to identify war crime suspects.  The screening

 2     process disproves that the plan to kill Muslim men in Potocari was the

 3     only reasonable conclusion from the evidence.

 4             Popovic also indicated that the prisoners from Potocari were in

 5     the purview of civilian authorities from 11 until 14 July 1995.

 6     Exhibit P10 proved that the citizens from Srebrenica who participated in

 7     combat against Army of Republika Srpska were under jurisdiction of the

 8     newly appointed commissioner for Srebrenica, Miroslav Deronjic, as

 9     described in paragraph 81 of the brief.  The DutchBat officer Boering

10     discussed the evacuation and separation issues after the third

11     Hotel Fontana meeting with the representatives of the civilian

12     authorities, as described in paragraph 80 and 83 of the brief.

13             Prosecution Witness 162's activities demonstrated that the

14     civilian authorities had jurisdiction over Srebrenica civilians.  This

15     includes Mladic's introduction of Deronjic to international service as

16     such, as described in paragraph 84 and 85 of the brief.

17             Finally, Beara's conversation with Deronjic on the night of

18     13 July as recounted by the Trial Chamber at paragraph 1264 of the

19     judgement strongly indicated that, at that time, the civilian authorities

20     were responsible for the prisoners, as described in paragraphs 86 through

21     88 of the brief.

22             Therefore, a discussion, alleged discussion, between Popovic,

23     Momir Nikolic and Kosoric on the accommodation of prisoners in sites in

24     and around Bratunac, among them as military officers, would have been

25     outside the jurisdiction, outside their scope of responsibility and

Page 72

 1     therefore unfeasible, as described in paragraphs 74 through 88 of the

 2     brief.

 3             The brief established and the Trial Chamber neglected to

 4     acknowledge that Momir Nikolic had every incentive to incriminate himself

 5     for ordering of the execution of prisoners at Kravica warehouse and

 6     Sandici, as described in paragraphs 89 through 99 of the brief.  The

 7     Trial Chamber overlooked that, in the course of plea agreement

 8     negotiations, his purported confessions to such a terrible crime was at

 9     first rejected by the Prosecution, prompting him to then falsely

10     incriminate others, including Popovic.

11             Knowing that the Prosecution was looking for the plan to murder,

12     Nikolic invented the conversation with Popovic and Kosoric on 12 July in

13     front of the Hotel Fontana.  In the end, that was the only piece of

14     evidence about the plan to kill Muslim men emerging before 10.00 in the

15     morning on 12 July 1995.

16             The Chamber erroneously concluded that Nikolic diminished his

17     role and the responsibility in Potocari.  However, Popovic asserts that

18     the parts of his statement concerning his coordinating role is false;

19     namely, only commanders of the units could have a coordinating role in

20     the command and control of various military units.  Nikolic was not a

21     commander of any unit and could not coordinate activities of various

22     units in Potocari.  As a non-commissioned officer, his military knowledge

23     was very limited.  His statement of facts and subsequent testimonies

24     showed a lack of military -- of familiarity with key military terms.  For

25     instance, his discussion of the coordination of various units neglected

Page 73

 1     that a coordinator holds command authority and issue orders, a fact that

 2     he would deny to evade responsibility if he knew its true meaning.  It is

 3     described in paragraphs 115 to 118 of the brief.

 4             The Trial Chamber was beguiled by Nikolic, arguing that his

 5     demeanour was credible on certain issues but not others.  The Chamber did

 6     not explain how Nikolic's demeanour during untruthful part of his

 7     testimony differed from when he allegedly testified truthfully.  It is

 8     addressed in paragraphs 119 through 121 of the brief.

 9             In any event, the finding disregarded the obvious contradictions

10     in his evidence.

11             The Chamber's attempt to provide evidence to corroborate

12     Nikolic's testimony fell short.  This is in -- these are paragraphs 284

13     through 288 of the judgement, and it was addressed in the brief in

14     paragraphs 122 through 126.

15             The Trial Chamber's finding of a plan to commit genocide centred

16     on the content of the purported conversation between Popovic, Nikolic and

17     others in front of the Hotel Fontana on 12 July.  However, nothing in the

18     evidence used by the Trial Chamber corroborates Nikolic's testimony in

19     any way, supported the content of the discussion, if any, that the men

20     had to be killed at the time.  Meanwhile, the testimony of Defence

21     Witness Kosoric, who denied the conversation described by Nikolic in

22     front of the Fontana Hotel, was conveniently dismissed.  It was analysed

23     in paragraphs 127 to 157 of the brief.

24             The Trial Chamber also erred in finding that the plan to murder

25     expanded to include the captured men in the -- from the column.  Though

Page 74

 1     the Trial Chamber found, for instance, that heavy combat operations were

 2     ongoing on 12 and 13 July - for example in the paragraphs 365, 371, 376

 3     of the judgement - the Trial Chamber nevertheless construed that Mladic's

 4     order gagging all discussion of military activities was evidence of a

 5     murder plan.  The order restricted movements for uninvited persons in

 6     Srebrenica and Zepa regions and closed roads leading to the battlefields.

 7     The order instructed brigade commanders to ban and prevent the release of

 8     information to media regarding combat activities, prisoners of war,

 9     evacuated civilians, escapees.  These restrictions obviously served to

10     prevent Muslim forces from becoming aware of the army's movement and

11     plans.  A further list of contradictions and inconsistencies as to this

12     misconstruction may be found in paragraphs 171 through 178 of Popovic's

13     brief.

14             The Chamber also erred in relying on other evidence in order to

15     find that Popovic issued an order to Jokic not to mention prisoners in

16     written and radio communication and that that order was sent through the

17     line of command on 13 July.  Popovic would not have issued such

18     instruction to Jokic; namely, Jokic was, as chief of the security --

19     namely, Jokic was the chief of engineering of the Zvornik Brigade.

20     Popovic would send such instruction to the commandant of the

21     Zvornik Brigade.  Jokic was subordinate to Obrenovic at the time, who was

22     the Chief of Staff and acting commander of the Zvornik Brigade.  As the

23     chief of engineering, Jokic could not issue the orders to the brigade.

24     If Popovic had wanted to give or convey any order, he would not have

25     issued to Jokic but to Obrenovic, who was the commander of the brigade at


Page 75

 1     the time.  It was addressed in our brief in paragraphs 179 through 180.

 2             Popovic also listed the evidence indicating that the plan to

 3     murder did not exist before 14 July 1995.  It is in paragraphs 181

 4     through 202 of the brief.  The errors demonstrated in that part of the

 5     brief affects judgement's finding related to the expansion of the plan to

 6     murder to the men from the column on 13 July, as mentioned in

 7     paragraphs 857, 858, and 861 of the judgement.

 8             Popovic's brief showed why the killings in the Kravica warehouse

 9     and Sandici meadow were not a part of the plan to murder.  They need to

10     be repeated today, but -- they need not be repeated today, but I invite

11     Your Honours to review paragraphs 211 through 214 of the brief.

12   (redacted)

13   (redacted)

14   (redacted), it's in paragraphs 223 --

15             MR. ROGERS:  Your Honours, may we go into private session,

16     briefly.

17             JUDGE ROBINSON:  Private session.

18                           [Private session]

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 76

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10                           [Open session]

11             THE REGISTRAR:  Your Honours, we are back in open session now.

12             MR. ZIVANOVIC:  I refer Your Honours to the jurisprudence on plea

13     agreement witnesses from Judge Prisca Matimba Nyambe's dissenting and

14     separate concurring opinions in the judgement in Tolimir.  This is in

15     paragraph 5 to 13 of that judgement.  The witnesses invented

16     intermediaries to convince the Prosecution to accept their pleas and

17     diverted attention away from their own culpability, as described in

18     paragraphs 233 through 237.

19             For all due caution, I would move to the private session.

20             JUDGE ROBINSON:  Private session.

21                           [Private session]

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 77

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15                           [Open session]

16             MR. ZIVANOVIC:  The significant contradictions in the evidence of

17     the plea agreement witnesses set out in paragraph --

18             THE REGISTRAR:  For the record, Your Honours, we are now in open

19     session.

20             MR. ZIVANOVIC:  Sorry.

21             The significant contradictions in the evidence of the plea

22     agreement witnesses set out in paragraphs 238 to 268 just confirm their

23     lies.  These factual errors impact the Trial Chamber's findings that

24     Popovic knew about the plan to murder.

25             The Chamber furthermore erred by finding Popovic direct


Page 78

 1     participation in the murders in Grbavci school, Rocevic, and Pilica.  It

 2     is in paragraph 269 of the brief.  Contrary to the Trial Chamber's

 3     finding, Popovic was not present at the two execution sites:  Lazete 1,

 4     also known as Orahovac, in the evening of 14 July, and Branjevo on

 5     16 July.  No witness identified Popovic at any execution site.  PW-101

 6     described a Lieutenant Colonel or Colonel from the Drina Corps at the

 7     execution site in Lazete 1 but did not know his name.  He also did not

 8     identify him.  Instead, the Trial Chamber used circumstantial evidence to

 9     find that this officer was Popovic.  It was analysed in paragraphs 285

10     through 298 of our brief.

11             The testimony of PW-101 is in any event untrue, as described in

12     paragraph 299 through 308.  In particular, Popovic extensively named

13     other evidence which contradicts the testimony of PW-101 as demonstrated

14     in paragraph 301.  The credibility of this witness has been obviously

15     demonstrated after the judgement when he retracted highly relevant parts

16     of his testimony, denying even that he said --

17             MR. ROGERS:  Your Honours, I'm sorry to rise at this point.  This

18     is the -- this is subject to an outstanding Rule 115 application which

19     has not been ruled upon.  This material is not in the record and should

20     not be submitted upon at this stage.

21             JUDGE ROBINSON:  That would seem to be correct.  Counsel?

22             MR. ZIVANOVIC:  Okay.  I agree.  I'll omit it from my submission.

23     Thank you.

24             While his commander testified that PW-101 was sent to Orahovac in

25     order to pick up Sreten Milosevic, deputy commander for logistics in the

Page 79

 1     Zvornik Brigade, as described in paragraph 301(a), PW-101 inexplicably

 2     recalled being sent there to drop off provisions.  He also concealed from

 3     the Chamber that he himself never went to the execution site while the

 4     executions were taking place.  According to Witness 3DW10, PW-101 never

 5     saved young boy from the execution site, as described in paragraph 301(c)

 6     and (d).  Rather, he picked him up in front of the school nearby.  PW-101

 7     misrepresented that only he was with the boy in the van during the drive

 8     to Zvornik, as described in 301(e), and that he drove the van straight

 9     from the execution site to the Zvornik hospital, as described in

10     paragraph 301(f).  But other witnesses clearly recalled accompanying him.

11     Finally, he lied that he was present at the execution site Lazete 1 on

12     the evening of 14 July.  These executions took place in the night after

13     the executions at Lazete 2 had been completed.  PW-110, a survivor of the

14     execution, attested to this.  The account of the event from these various

15     witnesses is too inconsistent to prove to a reasonable Chamber, beyond a

16     reasonable doubt, that Popovic was present in Orahovac on 14 July.

17             It was addressed in paragraphs 305 to 307 of the appeal brief.

18             The Trial Chamber's credibility assessment of PW-101 is

19     unsustainable as he's the subject of a pending Rule 115 motion.

20     Therefore, the Trial Chamber's finding that the officer present at

21     Lazete 1 while the execution was taking place is not the only reasonable

22     conclusion from the evidence.

23             The Chamber made a more drastic error by finding that the officer

24     who was described by Drazen Erdemovic was Popovic.  Erdemovic described

25     the officer as a very corpulent man with no mustaches or beard.  Popovic

Page 80

 1     is 174 centimetres and had mustache at the time.  Erdemovic did not

 2     recognise Popovic in the photo lineup.  The Trial Chamber nevertheless

 3     concluded that this officer was Popovic.  It was addressed in our brief

 4     in paragraphs 271 through 282.

 5             The Trial Chamber used -- the Trial Chamber's use of the fuel

 6     request to bolster its findings about Branjevo erred in three ways.

 7     First, the Chamber failed to acknowledge that Popovic did not necessarily

 8     make the request personally.  As assistant commander of the Drina Corps,

 9     Popovic would need to request the fuel directly from his command.  He

10     would not make such a request through the Zvornik Brigade.  If he could

11     contact the Zvornik Brigade, he was also able to communicate with the

12     Drina Corps command.  Second, meanwhile, timing of both the request and

13     its delivery did not effectively coincide such that it would in any way

14     assist the executions.  Finally, a request for fuel is at odds with other

15     documents which concretely demonstrate that the machines used for burials

16     were filled at the gas station in Zvornik.

17             This topic and others have been additionally undermined by

18     evidence which we have submitted in Rule 115 motion.  This finding is not

19     the only reasonable conclusion from the evidence.

20             Also, the Trial Chamber erred by finding that the intercept of

21     17 July 1995 was related to the killing and burials of the Muslim

22     prisoners.  It is addressed in paragraph 341.

23             In its interpretation, the Chamber disregarded dots in the text

24     which clearly indicated missing words in the conversation, as described

25     in paragraph 343 through 345.  In addition, the Trial Chamber disregarded

Page 81

 1     that Popovic received an order to visit Baljkovica in the afternoon of

 2     16 July to deal with the opening of the corridor, as described in

 3     paragraphs 346 to 350 of the brief.

 4             According to the Defence Witness Rakic, the corridor was a highly

 5     urgent and important issue at the time.  Indeed, even three high-ranking

 6     officers from the Main Staff were sent to double-check the reports about

 7     the corridor submitted by Pandurevic and later Popovic.

 8             I will next show how the Chamber also erred in finding that

 9     Popovic had a coordinating role in Orahovac, Rocevic, and Branjevo.  It's

10     paragraphs 283 through 284.

11             The role of Popovic, his alleged presence, acts and conduct in

12     Rocevici on 15 July in the morning is analysed in paragraphs 309 to 335

13     of Popovic's brief.  According to the Trial Chamber, Popovic arrived in

14     front of the Rocevic school to kill prisoners, without men, ammunition,

15     trucks, or even a possible location to carry it out.  The three

16     Prosecution witnesses who were present in front of Rocevic school - it is

17     in paragraph 318 of our brief - in no way confirmed Acimovic's testimony.

18     It is addressed in paragraphs 326 and 331 to 335 of the brief.  The

19     Chamber did not clearly assess the testimony of two of them, as described

20     in paragraph 320, and distorted the evidence of one, as described in

21     paragraph 321 through 322.  For corroboration, the Trial Chamber

22     illogically confused correlation with causation.  The Chamber could only

23     find proof of Acimovic's account by looking at the subsequent acts of

24     Acimovic and others.  This is not evidence of Popovic's accountability.

25     Moreover, their evidence as well as documents adduced strongly indicated

Page 82

 1     that Acimovic himself organised the provision of ammunition, vehicles and

 2     men for execution of prisoners in Rocevici and determined Kozluk as the

 3     execution site.  However, he concealed the actual superior or superiors

 4     who ordered him to do that as explained in paragraphs 317 and 326.

 5             Finally, the Trial Chamber failed to acknowledge the testimony of

 6     Prosecution Witness Dragan Todorovic who saw Popovic in Dragasevac at the

 7     time when he was allegedly in Rocevic.  It is transcript pages 14026.

 8             I will now discuss how the Trial Chamber made errors as to

 9     Popovic's custody of the ten wounded prisoners from the Standard

10     barracks.  It is in the brief in paragraphs 357 through 360.  The Chamber

11     misconstrued the content of two intercepts, as described in Popovic's

12     brief in paragraphs 361 through 365, and vehicle logbook for his Golf, as

13     described in paragraph 366 to 367.  Moreover, the Chamber disregarded

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19     Chamber found, inter alia, that Popovic's Golf car travelled to Zvornik

20     but did not resolve whether Popovic travelled in that car on that day.

21     The Chamber was also ambiguous about the stay of the Milic patients in

22     the Zvornik hospital before they transferred to the Zvornik Brigade, as

23     described in paragraph 369.  The Trial Chamber disregarded the evidence

24     of Dr. Novakovic, who brought the wounded Muslims from Milici in the late

25     afternoon on 14 July but did not find them in the hospital in the morning


Page 83

 1     of 15 July, as described in paragraph 370 of the brief.

 2             MR. ROGERS:  Your Honours, I'm sorry, may we go briefly into

 3     private session?

 4             JUDGE ROBINSON:  Yes.

 5                           [Private session]

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18                           [Open session]

19             THE REGISTRAR:  Your Honours, we are back in open session.

20             MR. ZIVANOVIC:  I think we should stay in the private session,

21     Your Honours.  I apologise.

22             JUDGE ROBINSON:  As a matter of caution, okay, yes, we will stay

23     in private session but tell us when we will exit.

24             MR. ZIVANOVIC:  Yes.

25                           [Private session]

Page 84

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6                           [Open session]

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

 8             MR. ZIVANOVIC:  The Trial Chamber also disregarded the testimony

 9     of Dr. Zoran Begovic who confirmed that all instructions as to these

10     patients he had received from Obrenovic who made all arrangements about

11     their transfer, accommodation, and medical treatment by the personnel

12     from the Zvornik hospital.  He even instructed Dr. Begovic not to

13     register these patients into the register book of the Zvornik Brigade

14     infirmary.  It is in paragraphs 371 through 373 of the brief; transcript

15     pages 9137 through 9138 and 9140.

16             The evidence also indicated that the securing of the Zvornik

17     medical centre arose on 14 July 1995, the same day when the wounded

18     Muslims were transferred from Milici.  That task was carried out by

19     Obrenovic's subordinate, Mihajlo Galic, who would have done so only on

20     Obrenovic's order.  It's paragraph 374.  The information about the death

21     of one of the wounded Muslims in the Zvornik hospital, sent in the early

22     morning hours of 16 July, strongly demonstrated that the other wounded

23     Muslims had been already transferred to the Zvornik Brigade by that date

24     and not on the 20th, as the Trial Chamber held.  It is described in our

25     brief in paragraphs 377 and 378.


Page 85

 1             One of the missing patients was treated in the morning on

 2     14 July 1995 by Dr. Novakovic and sent to the Standard barracks - it is

 3     in paragraph 379 of our brief - showing that these patients were sent to

 4     Zvornik Brigade infirmary on 14 July.  All these facts indicate that it

 5     was not only reasonable conclusion from the evidence that Popovic killed

 6     or facilitated killing of the wounded Muslim patients.

 7             The next issue that I shall challenge involves Bisina.  These

 8     events were not the part of the indictment, as described in paragraphs

 9     387 through 401.  The Chamber disregarded the evidence presented by the

10     Defence, indicating that in the morning of 23 July, when the events in

11     Bisina took place, Popovic went to Zvornik where he met the manager of

12     the Vezionica factory, Vlacic.  Although Vlacic could not remember the

13     exact date of the meeting but distinctly recalled that he asked about

14     Popovic's relative, Djordje Popovic, who was wounded and captured in the

15     action near Zepa.  At 9.00 in the morning of 23 July, the duty officer of

16     the Drina Corps, Jevitski reported to the Drina Corps commander, General

17     Krstic, that Popovic went to Vlacic.  It is in paragraph 395.  The

18     vehicle logbook for the Golf used by Popovic also registered his travel

19     from Vlasenica to Zvornik and back, as described in paragraph 396.  Two

20     other witnesses who worked on the construction of the barracks in Bisina

21     described that Popovic arrived there two or three hours after the trucks

22     and showed him the road.  Popovic went there and came back shortly

23     thereafter.  Cumulatively, these evidence confirm that Popovic arrived at

24     Bisina after the execution of the prisoners.

25             Popovic challenged the finding of the Chamber that Bosnian Serb

Page 86

 1     forces committed genocide, as described in paragraphs 19 through 32 of

 2     the brief.  According to the Chamber's definition, Bosnian Serb forces

 3     include many thousands of members, the majority which had not any role in

 4     the events in Srebrenica.  The judgement did not identify any specific

 5     member of the Bosnian Serb forces that possessed genocidal intent except

 6     Popovic and Beara.

 7             Judicial fairness requires that the genocidal intent of the

 8     perpetrator must be established only on a case-by-case basis.  For

 9     example, the perpetrator of the execution of Muslim prisoners at Branjevo

10     military farm, Drazen Erdemovic, was not convicted for genocide, as he

11     lacked genocidal intent.  So far, the ICTY tried 11 accused for the

12     Srebrenica mass killings.  None -- none of the units' commanders from the

13     Drina Corps were found guilty for genocide, for the lack of genocidal

14     intent.  Yet, according to the Trial Chamber, untold and unknown members

15     of the Bosnian Serb forces nevertheless possessed such intent.

16             The finding that members of the Bosnian Serb forces committed

17     genocide violates the presumption of innocence and introduced instead the

18     presumption of guilt of genocide for any members of the Bosnian Serb

19     forces.  It is notable, however, that such a finding was necessary pillar

20     for finding Popovic's genocidal intent.  Without such finding, the

21     genocidal intent would be restricted to just two medium-ranking VRS

22     officers, Popovic and Beara.

23             The acts of the Bosnian Serb forces at the time demonstrated that

24     they transported between 20- and 30.000 Muslims to the safety of the

25     Muslim-held territory.  In addition, despite their awareness of the

Page 87

 1     movement of the Muslim military column breaking through the Serb-held

 2     territory, the VRS sent its main forces in opposite direction, to Zepa.

 3     These acts clearly demonstrated the lack of genocidal intent on the part

 4     of the Bosnian Serb forces.

 5             The Chamber took two elements as the proof of genocidal intent, a

 6     significant coordination, as described in trial judgement -- in

 7     paragraphs 882 and 933, and the vast process.  It is Popovic's submission

 8     that neither significant coordination nor a vast process are distinctive

 9     elements of genocide.  Indeed, war crimes or crimes against humanity, if

10     not all crimes with more than two co-perpetrators, may process the same

11     characteristics, as described by the Trial Chamber.  Popovic analysed in

12     details these errors in paragraphs 19 to 32 of his brief.

13             I now give the floor to Mrs. Tapuskovic.

14             MS. TAPUSKOVIC: [Interpretation] Good morning, Your Honours.

15     Good morning to the colleagues from the Prosecution.

16             One part of the appeal brief for Vujadin Popovic relates to the

17     victims of Srebrenica, to the persons gone missing, executed, identified.

18     And in that appeal, we submit that the Trial Chamber erred in

19     establishing the total number of missing, in establishing the total

20     number of deceased, in including the total -- among those killed the

21     victims from Nova Kasaba, and including in the total number of killed the

22     victims that were at locations not alleged in the indictment, and in

23     going beyond the scope of the indictment in establishing, among those

24     killed, some who were not alleged in the indictment.

25             We would like to refer you right now to 607 paragraph from

Page 88

 1     Trial Chamber where it is stated that the precise number of deceased is

 2     not necessary in order to reach a conclusion regarding the crimes alleged

 3     in the indictment.  And there we refer you to footnote 2214, a conclusion

 4     as to the number of persons killed does not form an element of the crimes

 5     alleged.

 6             However, the Trial Chamber also went on to say in the same

 7     paragraph that, however, such an estimate is relevant, particularly to

 8     the crime of genocide and extermination, a crime against humanity.

 9             Now, and in paragraphs 457 and 461 of our appeal brief, we

10     asserted that the Trial Chamber erred in paragraph 659 and 664 by

11     including among the persons missing the identities of persons that could

12     not be matched with a single person from the list of missing, as well as

13     the persons exchanged in Batkovic, who were later found to be alive.  The

14     Trial Chamber erred also by including in the total number of identified

15     those persons who were not identified by their first or last name but

16     only by their unique DNA profile.  According to Janc, without

17     identification one could not be sure that the remains belonged to

18     individuals associated with the events following the fall of Srebrenica.

19     This is something that the Trial Chamber itself found at paragraph 651 of

20     the judgement.  Consequently, the number of those identified should be

21     reduced by the number of those who could not be matched with the list of

22     missing, but in respect of whom we only have their unique DNA profile.

23             At paragraph 441 of our appeal, we found that the Trial Chamber

24     erred by adding to the number of persons executed also the surface

25     remains found at the Kozluk site; whereas elsewhere in the judgement, at

Page 89

 1     paragraphs 651, 659 and 660, other surface remains were excluded from the

 2     total number of victims.  Therefore, we believe that a consistent

 3     approach should be adopted and the same approach should be adopted to

 4     these Kozluk surface remains.

 5             The Nova Kasaba victims were addressed in paragraphs 415 and 418

 6     of the appeal brief.

 7             JUDGE ROBINSON:  Just a minute.  Can you just clarify "surface

 8     remains"?  What is meant by "the surface remains"?

 9             MS. TAPUSKOVIC: [Interpretation] Yes, Your Honour.  The judgement

10     extensively addressed the issue of surface remains.  In the report by

11     expert Janc, which is P4490, it was stated --

12             THE INTERPRETER:  Can Ms. Tapuskovic please repeat the number of

13     the victims she referred to.

14             JUDGE ROBINSON:  The interpreter is asking to you repeat the

15     number of victims that you just mentioned.

16             MS. TAPUSKOVIC: [Interpretation] It was stated that there was

17     648 sets of surface remains.

18             May I proceed, Your Honour?

19             Paragraph 30.3.1 of the indictment alleges the events at

20     Nova Kasaba.  However, the victims from Nova Kasaba, as the Trial Chamber

21     itself found at footnote 6069, as alleged in the indictment, were not

22     proven.  In our view, therefore, that the total of 90 victims that were

23     alleged to have been killed at Nova Kasaba should be deducted from the

24     total number of victims established in paragraph 664 of the judgement

25     because they were not proven to have been the victims of executions.

Page 90

 1     This applies to all of the four graves of Nova Kasaba, 1996, 1999, 2001

 2     and the individual grave.  This is to be found in the Prosecution exhibit

 3     P4490, annex A, page 34 -- pages 3 and 4.

 4             This reduction should be carried out according to the same

 5     principle that was applied in paragraph 657, 661, 662, and 664 of the

 6     judgement, where the Trial Chamber reduced the total number of victims by

 7     12 sets of mortal remains from the Glogova 1 grave, those were bodies

 8     that were brought back from Serbia, and by ten persons from the

 9     Cancari Road 4 grave.

10             As stated by my colleague, Mr. Zivanovic, this was not alleged in

11     the indictment, the location of Bisina was not alleged in the indictment

12     and was only raised by the OTP as proof of the pattern of conduct of the

13     accused Popovic, of his participation in the murder operation, and this

14     is P4490, page 4, annex A, page 28.  We believe that an error was made in

15     this way, when arriving at the number -- at the total number of victims

16     because these victims were not alleged in the indictment and were not

17     part of the Prosecution case.

18             In our appeal brief, paragraphs 460 and 463, those victims

19     addressed in other graves were dealt with, and according to Janc, these

20     were surface remains.  This is P4490.  In our submission, these persons

21     who were identified there should be treated the same as other surface

22     remains, as indicated in paragraph 651, 659 and 660, including 648.  We

23     also have persons exhumed among them who were from unknown locations, and

24     since there was no information of their cause or place of death, Janc

25     himself believed that they were to be treated as surface remains.

Page 91

 1             Now, the Defence appeal brief at paragraph 6 -- 465 deals with

 2     the victims whose remains were recovered in Serbia.  There is no proof of

 3     cause of death and therefore there is no proof of them being victims of

 4     murder.  This is P4490, annex A, page 35.  In our view, therefore, they

 5     should not be included among the total number of victims.

 6             Here we have to point out that the Trial Chamber in Tolimir

 7     arrived at entirely different conclusions and findings in their

 8     judgement, which were not appealed by the Prosecution.  We are aware of

 9     the fact that the Trial Chamber in Tolimir used its discretion to

10     establish certain facts.  However, it is the -- a mission of this

11     Tribunal to establish facts.  It will be part of its legacy.  And the

12     mission includes, among other things, the practice for the Trial Chambers

13     to rely upon the factual findings from other cases through adjudicated

14     facts.  We believe that the interests of justice would make such a

15     conclusion imperative in this case as well.

16             In the Tolimir trial judgement, at paragraphs 546 and 569, the

17     Trial Chamber found that approximately 39 men were mentioned and alleged

18     in the indictment in respect of Bisina, although the Trial Chamber itself

19     found that 54 persons were killed.  Although the number is bigger than

20     the one alleged in the indictment, nevertheless, it goes beyond the scope

21     of the indictment and the specific paragraph and therefore is not part of

22     the case against the accused.

23             As for the victims falling into the category of other graves,

24     they are mentioned in the Trial Chamber against Popovic, just as they

25     were in the Tolimir trial judgement.

Page 92

 1             Now, the Tolimir Trial Chamber found at paragraph 590 that the

 2     forces of the Bosnian Serbs did not kill the victims mentioned in this

 3     category as victims hors de combat with the exception of the victims of

 4     Trnovo.  In our case, unlike the Tolimir Trial Chamber, these victims

 5     were included in the total number of victims.  Now, in the Tolimir

 6     judgement, the Kozluk surface remains were included in the category of

 7     other graves but were not included among the total number of victims.

 8     The Trial Chamber in our case did so.

 9             As for persons identified in other graves and those identified in

10     Serbia, we can say the same thing that we said about Bisina; namely that

11     these locations were not included in the indictment.  We did not have any

12     proof that this had to do with executions that were the result of the

13     execution of a joint criminal enterprise to murder and their number

14     should not be included in the overall number of victims.

15             The indictment only refers to locations sites referred to in

16     paragraphs 30.1 to 31.4, and other locations are not mentioned.

17             The possibility that the killings occurred at other sites as well

18     was not referred to by the Prosecution in their pre-trial brief,

19     paragraphs 47 through 130, and not in their opening arguments, and that

20     is an acceptable way to additionally clarify the indictment.  That is

21     part of the jurisprudence of this Tribunal as stated in the Naletilic

22     judgement, paragraph 34.

23             Your Honours, now we would like to deal with the questions that

24     you put to the Popovic Defence.

25             The questions were put along the following lines, I'm going to

Page 93

 1     read out that in the English language now:  [In English] To discuss

 2     Popovic submission that the Trial Chamber erred in convicting him for

 3     execution of more than thousand males at Kozluk on 15 July 1995, while

 4     the indictment only charged him with killing about 500 Muslim men at that

 5     location.

 6             [Interpretation] The first question of the Appeals Chamber was

 7     how the Trial Chamber interpreted 30.10 and 30.8.1 in the indictment in

 8     footnote 1839 of the trial judgement.

 9             In paragraph 30.8.1 of the indictment, it is stated that

10     approximately 500 Bosnian Muslims, on the 14th or 15th of July, were

11     detained at the school in Rocevici.  In paragraph 30.10 of the

12     indictment, it is stated that on the 15th of July, 1995, members of the

13     Army of Republika Srpska and/or the MUP of the Republika Srpska

14     transported about 500 Bosnian Muslims to a location near Kozluk and

15     executed them summarily, and on the following day they were buried.

16             That paragraph, 30.10 of the indictment, does not state where the

17     Bosnian Muslims had been brought from.  By reading the indictment itself,

18     the school in Rocevici cannot easily be linked to Kozluk.  However, the

19     body of evidence that was adduced during the trial, in terms of what

20     happened at the school in Rocevici and in Kozluk, unequivocally shows

21     that the detainees from the school in Rocevici were transported to

22     Kozluk.  The judgement, in paragraph 516, states that the prisoners from

23     the school in Rocevici were transported to Kozluk together with the

24     corpses that had already been seen in front of the school, and that is

25     confirmed in footnote 1839.

Page 94

 1             The position of the Defence is that footnote 1839 of the

 2     judgement is very clear.  It is on page 199 of the judgement and the

 3     title is:  "The school in Rocevici and Kozluk."  We wish to note on this

 4     occasion that the prisoners from the school in Rocevici were killed in

 5     Kozluk and these were the persons involved in one single transaction as

 6     is defined in Rule 2 of the Rules of Procedure and Evidence.  We believe

 7     that the judgement, in terms of paragraph 516 and footnote 1839,

 8     corrected a shortcoming of the indictment that did not properly link the

 9     Rocevici school and Kozluk.

10             As regards the second question that was put by the

11     Appeals Chamber to the Popovic Defence, and it reads as follows:  [In

12     English] Whether Popovic was convicted for any killings in excess of

13     those pleaded in these two provisions.

14             [Interpretation] In paragraph 524 of the judgement, the

15     Trial Chamber asserts that 1040 persons identified and linked to Kozluk

16     primary and secondary graves, seven of them on the road to Cancari 2, 3,

17     4, 5 in particular, 7, and 13.

18             The Defence believes that one of the basic principles of criminal

19     procedure is that one should not go beyond the scope of the indictment.

20     We believe that a Court cannot find someone responsible for anything that

21     goes beyond the allegations made in the indictment.

22             JUDGE ROBINSON:  Counsel, just to observe that there is just

23     about three or four minutes before the break.

24             MS. TAPUSKOVIC: [Interpretation] Your Honour, I believe that I

25     will manage to finish within those three or four minutes, and thank you

Page 95

 1     for having said that.  May I continue?  Thank you.

 2             Changing the number of victims is not a substantive change.  That

 3     is not a material fact in legal terms.  It does not mean adding new

 4     crimes in addition to the existing ones.  All the elements of the crimes

 5     that have been charged would remain the same.  It is just a question as

 6     to whether this number is part of the Prosecution case against the

 7     accused.  Whether there were 500 victims at one location or 1.000 victims

 8     is a question of fact, not a legal question, but it is a legal question

 9     whether somebody is -- whether somebody can be found guilty for over

10     1.000 victims and the indictment charges about 500.

11             In the judgement, in paragraph 523, Cancarski Put number 5 where

12     283 persons were identified, P4490, paragraph -- annex A, pages 11 and

13     37, the judgement links this to Kozluk because Janc also links it to

14     Kozluk.  However, the Janc report, in the Tolimir case, links this grave

15     to Branjevo, a completely different location.

16             MR. ROGERS:  Your Honours, I'm sorry to rise.  It's really not

17     appropriate to refer to evidence in another case in this case when there

18     is no evidence on the record.  If my learned friend wished to make

19     applications to bring that evidence into the record, Rule 115 is the

20     correct route to do so.  And whilst I'm on my feet, there have been a

21     number of references to the Tolimir trial judgement.  That also is not

22     appropriate, to make references to another judgement dealing with the

23     same issues or some of the same issues because, of course, the evidential

24     record in that case is different to the evidential record in this case.

25     So my learned friend should not make references to the other judgements

Page 96

 1     that may deal with these issues because they are not within the four

 2     square walls of this case.

 3             JUDGE ROBINSON:  Just a second.

 4                           [Appeals Chamber confers]

 5             JUDGE ROBINSON:  We will take the break now, counsel.

 6     20 minutes.

 7                           --- Break taken at 11.30 a.m.

 8                           --- On resuming at 11.57 a.m.

 9             JUDGE ROBINSON:  Mr. Rogers, I find that while there are elements

10     of correctness in your last submission, overall I conclude it's not

11     correct, it's not correct to say counsel can't refer to the -- to another

12     case.  The cases are public document.  Of course, it will be a matter for

13     the Appeals Chamber to determine what weight to attach, what value to

14     attach to the reference.  In this particular instance, I note that the

15     Tolimir case is on appeal and the Appeals Chamber would, of course, take

16     that into account in assessing the value of the reference.  In other

17     instances, we have the rule that factual findings by a Chamber in one

18     case are not binding on another Chamber.  So in all the circumstances, I

19     believe that your submission, your objection, was a little extreme.

20     Counsel may make the reference and the Chamber will determine the value

21     to attach to it.

22             MR. ROGERS:  Your Honour, may I make a brief comment?

23             JUDGE ROBINSON:  Yes.

24             MR. ROGERS:  Your Honour, my concern is this, that if evidence

25     from another case is being referred to, as my learned friend did in

Page 97

 1     relation to a report by a particular witness, that evidence should be on

 2     the record in this case, and the route to do that is through Rule 115.

 3     Otherwise, the Court will be taking into account considerations based

 4     upon evidence that is not on the record in this case.

 5             Likewise, if there are findings of fact from another case, then

 6     the correct route would be an adjudicated facts motion but I simply can't

 7     see how that could possibly occur in proceedings on appeal.  The problem

 8     with an appeal is that is ring-fenced by the evidence within the record

 9     and any other material outside of the evidence on the record is simply

10     not admissible unless the Appeals Chamber has determined that it should

11     come in in an admissible form, and it has not.  And so there are no

12     circumstances in which, on appeal, the Appeals Chamber can take notice of

13     factual or other findings in other cases, in my submission, to inform you

14     as to the arguments that are being made on the evidence on the record in

15     this case.

16             JUDGE ROBINSON:  I still find it a little extreme.  Yes?

17             MS. TAPUSKOVIC: [Interpretation] Thank you, Your Honours.  Your

18     decision was made before I wanted to add just one sentence.  I thought

19     that the Prosecution should have waited for me to finish the sentence

20     that I had started because I was not invoking any evidence from Tolimir.

21     I just wanted to invoke paragraphs 480, 481, 581, with footnote 2564, and

22     paragraph 596 of the Tolimir judgement.  As for Cancarski Put number 5,

23     it links it to Branjevo not to Kozluk anymore.  Because of the role of

24     this Tribunal and because of the need for historical facts to be recorded

25     properly, we need to take that into account as well.  I shall proceed

Page 98

 1     now.

 2             JUDGE ROBINSON:  Before you continue, just one housekeeping

 3     matter has been brought to my attention.  It's that if a particular party

 4     concludes his or her submissions before the time allotted, then the other

 5     party should be ready to take up the slack.

 6             Thank you.  You may proceed.

 7             MS. TAPUSKOVIC: [Interpretation] Paragraph 480, 481, 486, 591,

 8     link only 761 persons to Kozluk.  If we were to subtract grave

 9     Cancari Road 5, because it was established that it was related to

10     Cancari, we would have a number less than 1.000 victims related to

11     Kozluk.  The Kozluk primary and secondary graves, that is.  The position

12     of the Defence is that the number of over 1.000 Muslims killed in Kozluk

13     goes beyond what is stated in paragraphs 30.8.1 and 30.10 of the

14     indictment and was not part of the Prosecution case against the accused.

15             I think that in this way I responded to both of the questions put

16     by the Trial Chamber, and now I would like to go on for another two

17     minutes, speaking about the other matters related to the Popovic appeal.

18             In paragraphs 432 to 436 as regards Orahovac, the Defence would

19     like to say that in the case of Orahovac and the number of victims of the

20     execution at that location, the situation is the same as with Kozluk,

21     namely that one went beyond the indictment.  As for Orahovac, the

22     indictment, in paragraph 30.6, says that on the 13th and 14th of July,

23     1995, hundreds of Bosnian Muslims were transported to the school in

24     Grbavci, and that on the 14th of July, they were transported to a nearby

25     meadow where approximately 1.000 Bosnian Muslims were executed.

Page 99

 1             In paragraph 1788, along with paragraph 492, the Trial Chamber

 2     states that several witnesses testified about Grbavci, a total of four of

 3     them, and they gave an approximation, approximate range, of 1.000 to

 4     2.500 persons who were detained in the school.  In the judgement, no

 5     elements were provided to establish beyond a reasonable doubt that the

 6     number of executed persons at that location could have exceeded the

 7     number of 2.500.  We believe that one went beyond the indictment there as

 8     well because the number of 2.500 victims goes beyond the assertions made

 9     in paragraph 30.6 of the indictment and were not part of the Prosecution

10     case against the accused.

11             In paragraphs 455, 472 through 474 of the appeal, there was a

12     reference to the Janc report.  The Defence states that excessive

13     importance was attached to it because it does not meet the standards

14     required of an expert report.  We have already pointed out the

15     differences in his summaries and the findings in the Tolimir case, and in

16     this case, that are based on his updated summaries, lead us to conclude

17     that his summary is unreliable and most importantly contradictory.

18             As regards all the other things stated in the appeal, with regard

19     to missing persons, victims, and other matters, we stand by what we said

20     in the appeal brief that will not be elaborated upon today.  Thank you.

21             JUDGE ROBINSON:  Yes, Mr. Rogers?

22             MR. ROGERS:  Your Honours, I'm conscious of the scheduling order

23     and the time set out in the scheduling order, and I see we -- although

24     just having had a break, we've come to the time allotted for Your

25     Honours' lunchtime break.  Does Your Honour wish me to continue for five


Page 100

 1     minutes, or are you and your colleagues going to alter the schedule to

 2     extend it for a longer period of time?  Just so that I have an idea of

 3     how much longer you'd like me to address you.

 4             JUDGE ROBINSON:  I think it would be tidier to take the break

 5     now, and resume at 1.40; is that correct?

 6             MR. ROGERS:  1.45, I think, Your Honour, on the schedule.  But

 7     1.40 is fine too.

 8             JUDGE ROBINSON:  Then 1.40, an hour and a half from ten past.

 9     Okay.  Thank you.

10                           --- Break taken at 12.10 p.m.

11                           --- On resuming at 1.45 p.m.

12             JUDGE ROBINSON:  Yes, Mr. Rogers.

13             MR. ROGERS:  May it please Your Honours.  Paul Rogers, again,

14     appearing on behalf of the Prosecution this afternoon.

15             Your Honours, in response to Mr. Popovic's appeal, the

16     Prosecution observes that, as in his appeal brief, Popovic seeks today to

17     focus on isolated aspects of the evidence, and by so doing to undermine

18     his convictions.  But in our submissions, he files address the complex

19     matrix of findings which underlie those convictions and the Chamber 's

20     careful assessment and appreciation of the evidence when making its

21     findings.

22             In our response, I will make some general remarks concerning

23     Popovic's attacks on the Trial Chamber's assessment of the evidence and

24     its approach to the credibility of the witnesses.  I will then provide an

25     overview of the basis of Popovic's convictions in order to show how the

Page 101

 1     Trial Chamber's holistic assessment of the evidence inevitably led to the

 2     convictions that were entered.

 3             After completing my overview, Ms. Soljan will address

 4     Your Honours' questions and will make some further remarks concerning

 5     Popovic's challenge to his conviction as a member of the JCE to murder

 6     and as a genocidaire.  And Ms. Nabti will make some submissions on

 7     Popovic's genocidal intent.

 8             Your Honours, turning then to deal with the assessment of the

 9     evidence and the attacks to that.  Your Honours, in sum, we have

10     addressed these attacks at length in our response brief, arguing broadly

11     that the Appellant's arguments are unfounded and that the vast majority

12     warrant summary dismissal.

13             Your Honours, of course, we adopt all of the submissions that we

14     have made in response to the Appellant's brief, and you will have

15     recalled, during the course of his submissions, his extensive reference

16     to his own appeal brief in support of the arguments he made today.

17             Your Honours, the appeal of Vujadin Popovic rests primarily on a

18     series of attacks on the Chamber's assessment of the overwhelming

19     evidence in this case against him.  In particular, he seeks to undermine

20     the Chamber's assessment of certain witnesses' evidence.  For example, he

21     recognises that the assessment of Momir Nikolic's evidence is

22     particularly important because Momir Nikolic places him at the heart of

23     the murder operation from the beginning, from the 12th of July, 1995.

24     And so it is that, again, he repeats his challenges to the reliability

25     and credibility of that witness.  Likewise, he recognises that the

Page 102

 1     assessment of Witness PW-168 is also significant because PW-168

 2     implicates Popovic in the murder operation in a number of ways.  And so,

 3     again, he challenges the reliability and credibility of that witness by

 4     repeating his trial arguments and arguing for different interpretations

 5     of the evidence.

 6             Indeed, wherever evidence implicates him in the murder operation,

 7     he reargues his failed case at trial or merely proffers alternative

 8     explanations on the evidence without demonstrating why no reasonable

 9     Trial Chamber could have reached the conclusion this Chamber did on the

10     totality of the evidence before it.

11             He prefers a piecemeal and isolated assessment of the strands of

12     evidence, ignoring that the Chamber looked at each piece of evidence

13     within the context of the whole of the evidence that it had before it,

14     before reaching its conclusions and drawing inferences and making

15     findings.

16             In doing this, the Chamber demonstrated it had correctly assessed

17     the evidence as a whole, carefully weighing and considering what it was

18     prepared to rely upon and what it was not and giving detailed reasons

19     where appropriate.

20             So to take Momir Nikolic as an example, Popovic does everything

21     he can to argue again why Momir Nikolic should be disbelieved, but he

22     does not address the Chamber's overall approach to the assessment of this

23     evidence and in particular how it assessed his evidence by reference of

24     the applicable standards.

25             Your Honours, the Trial Chamber set out in great detail its

Page 103

 1     approach to the evidence at paragraphs 7 to 85, devoting 23 pages of its

 2     judgement to this.  It directed itself correctly as to how it must assess

 3     the evidence and recognised that it need not assess every factual

 4     assertion in the indictment or explain every detail of its assessment of

 5     the evidence presented to it in trial judgement at paragraph 15.  It

 6     correctly noted that where it may not have mentioned a specific piece of

 7     evidence, that all relevant evidence had been considered.  Again in the

 8     judgement at paragraph 15, referring to the Kvocka appeals judgement at

 9     paragraph 23.

10             Your Honours, it is trite to say that the assessment of the

11     evidence is supremely within the Trial Chamber's discretion because, of

12     course, that is its primary function.  And great deference at this stage

13     of the proceedings is, and I know Your Honours will give great deference

14     to those assessments.

15             It's useful to note at this stage the size of the evidential

16     record in this case.  It included over 5.000 exhibits, just under half of

17     which were adduced by the Defence.  The Trial Chamber heard

18     182 Prosecution witnesses over more than 400 days, three-quarters of whom

19     were fully viva voce or with cross-examination via 92 ter, including

20     12 experts.  145 witnesses were heard from the Defence and the Chamber

21     itself called one witness.  The transcript runs into over 34.000 pages

22     excluding closing submissions.

23             The judgement is extensively referenced and footnoted and running

24     into two volumes totalling 866 pages.

25             The Appeals Chamber jurisprudence recognises that the task of

Page 104

 1     assessing this massive material rests with the Trial Chamber.  In Lukic

 2     and Lukic, in appeals judgement at paragraph 296, Your Honours stated:

 3             "The Appeals Chamber recalls that the Trial Chamber has the

 4     advantage of observing persons, witnesses in person, and is thus better

 5     positioned than the Appeals Chamber to assess the reliability and the

 6     credibility of the evidence.  It is therefore within the discretion of a

 7     Trial Chamber to evaluate discrepancies and to consider the

 8     reliability -- consider the credibility of the evidence as a whole

 9     without explaining its decision in detail."

10             And footnoted to Kvocka et al, paragraph 23, Celebici appeals

11     judgement paragraphs 481 and 498, and the Kupreskic appeals judgement at

12     paragraph 32.

13             The Appeals Chamber has repeatedly recognised that "the task of

14     hearing, assessing and weighing the evidence presented at trial is left

15     primarily to the Trial Chamber.  Thus, the Appeals Chamber must give a

16     margin of deference to a finding of fact reached by a Trial Chamber, and

17     only where the evidence relied upon by the Trial Chamber could not have

18     been accepted by any reasonable Tribunal of fact or where the evaluation

19     of the evidence is wholly erroneous, may the Appeals Chamber substitute

20     its own finding of fact for that of the Trial Chamber."

21             Again Kupreskic appeals judgement paragraph 30; Mrksic appeals

22     judgement paragraph 14; and it's also referred to in Lukic and Lukic

23     appeals judgement.

24             THE INTERPRETER:  The counsel is kindly requested to slow down

25     when reading.

Page 105

 1             MR. ROGERS:  Yes, thank you.  I note the interpreters.

 2             The Celebici appeals judgement at paragraph 481 confirms "the

 3     Trial Chamber is not required to articulate in its judgement every step

 4     of its reasoning in reaching particular findings."

 5             It went on:

 6             "The Trial Chamber is not obliged to recount and justify its

 7     findings in relation to every submission made during trial.  It was

 8     within its discretion to evaluate the inconsistencies highlighted and to

 9     consider whether the witness, when the testimony is taken as a whole, was

10     reliable and whether the evidence was credible."

11             And that final part is from Celebici appeals judgement 498.

12             Your Honours, in this case, the Trial Chamber could not hope to,

13     and nor was it required to, address every piece of evidence.  Indeed, as

14     much of the evidence was viva voce, it did not need to assess every

15     difference between witnesses or within a witness's own testimony.

16     However, the Trial Chamber in this case was very careful to articulate in

17     detail its approach to the evidence in general and again specifically

18     when dealing with certain categories of evidence and with certain

19     witnesses and types of witness.

20             In relation to Momir Nikolic, the Trial Chamber addressed its

21     approach to his evidence generally at paragraphs 48 to 53 and

22     specifically with regard to the third Hotel Fontana meeting between

23     paragraphs 280 and 287.  Your Honours, it was mindful of all of the

24     Appellant's strong attacks to his credibility.  It wasn't just

25     Mr. Popovic who attacked his credibility.  Everybody attacked his

Page 106

 1     credibility.  And it was mindful of those attacks, including those of

 2     Borovcanin, as it listed them in detail in footnote 72.

 3             In its assessment, it specifically considered Momir Nikolic's

 4     lies made in an effort to secure a plea agreement vis-ā-vis the Kravica

 5     warehouse at paragraph 49.  It considered his attempts on occasion to

 6     downplay aspects of his own involvement in the events, paragraph 51, as

 7     well as recognition that sometimes he made statements that implicated

 8     himself further in the events, in the judgement at paragraph 284, for

 9     example, in relation to Nikolic's acceptance that the conversation on the

10     12th was about the plan to murder and that he, Momir Nikolic, was

11     involved in implementing it by suggesting places of detention and places

12     of execution.

13             It considered specifically his broad consistency, at 52 in the

14     judgement, and his demeanour overall, at paragraph 53.  It considered the

15     content of his plea agreement and the statement of facts and acceptance

16     of responsibility, at 281 to 282.  It considered whether there was any

17     corroboration of the account given by Momir Nikolic of the 12 July

18     meeting by the events that had happened and, for example, by video

19     evidence placing him there on 12 July, at paragraphs 285, 86, and 87.

20             It considered the testimony of Kosoric, at paragraph 288, and in

21     a detailed explanation in the footnote at 938, it explained how it

22     considered Kosoric was extremely evasive in the questions that were being

23     asked of him and consequently why it rejected his account.  It considered

24     whether Momir Nikolic, in the words of the Trial Chamber, "constructed

25     his evidence of this conversation to correspond to the events which

Page 107

 1     subsequently unfolded."  And it rejected that as not being a reasonable

 2     possibility because the conversation substantially incriminated him in

 3     the murder operation at that early stage, judgement 287.

 4             It considered other aspects of his evidence such as the

 5     corroboration of a meeting between Beara and Deronjic that he talked

 6     about in 1269 and 1207, and the corroboration of his own meeting with

 7     Drago Nikolic through the evidence of PW-168 whom it also found to be

 8     reliable.

 9             Your Honours, the Chamber recognised that it did not need to

10     corroborate a witness such as Momir Nikolic - in the judgement at

11     paragraph 26 and also referring to Lukic and Lukic appeals judgement at

12     paragraph 128 - but it expressed its intention to treat that person's

13     evidence with caution, citing at footnote 36 to the Appeals Chamber's

14     jurisprudence from Krajisnik at paragraph 146, where the Appeals Chamber

15     stated:

16             "A Trial Chamber should at least briefly explain why it accepted

17     the evidence of witnesses who may have had motives or incentives to

18     implicate the accused.  In this way, a Trial Chamber shows its cautious

19     assessment of the evidence."

20             Your Honours, the Chamber gave detailed reasons for its

21     acceptance of the evidence of Momir Nikolic, where it chose to rely upon

22     him and generally.

23             For example, on the issue of the 12 July conversation with

24     Popovic outside the Hotel Fontana prior to the third meeting, it

25     recognised that Momir Nikolic remained consistent on this subject and on

Page 108

 1     the subject matter discussed at that meeting, despite extensive

 2     cross-examination on the point.  Trial judgement 282 and footnote 927.

 3     Popovic attacks that finding again in his reply brief and he alleges at

 4     paragraph 33 that the judgement "corroborated its finding that Nikolic

 5     remained consistent despite much cross-examination" by referring to

 6     Judge Prost's question regarding Nikolic's evidence, but he

 7     misunderstands the nature of that finding and fails to record the other

 8     citations referring simply to Judge Prost's question.  The Chamber's full

 9     citation demonstrates that where Momir Nikolic was examined and

10     cross-examined at length about the content of the conversation, and in

11     particular about the reference to the places of detention and execution,

12     and the places that you can find those discussions and the evidence of

13     the extensive cross-examination is found in the transcript at 32916 to

14     32918, 32920 on to 32922, 33031 to 34, 33040 to 41, 33043 to 33049, and

15     at 33328.

16             The Trial Chamber decided that Momir Nikolic was credible on the

17     question of the conversation, and its contents and the discussion about

18     the places of execution, at judgement 282.  And in particular, it

19     considered the part about detentions and executions was true because this

20     incriminated Momir Nikolic in the organisation of the murder operation,

21     as he was discussing and volunteering places of detention and murder.

22     That's in the judgement at 284.

23             Your Honours, this self-incrimination supported the reliability

24     of the statement as a whole and, in addition, it relied the Chamber on

25     other factors to corroborate the circumstances of the conversation, in

Page 109

 1     judgement at 285, including, for example, the next day when Beara

 2     examined the brick factory as a potential place of execution and

 3     detention.  Referred to in the judgement at 286, 452 to 455, and 460 to

 4     463.

 5             And in any event, Momir Nikolic's evidence was not the only

 6     evidence from which Popovic's convictions could be sustained.  He was

 7     inside the Hotel Fontana on the 12th July with Mladic and seen outside of

 8     it, judgement 1098 and PW-109.  He was staying in the hotel on the nights

 9     of 11 and 12 July, corroborated by the hotel receipts referred to in the

10     judgement at 1098.  As Drina Corps chief of security he had access to the

11     resources through the Drina Corps brigades, recorded in the judgement at

12     294, 296, 1069 to 1070, 1094, and 1281 to 1284.

13             THE INTERPRETER:  Kindly slow down, please.  Thank you very much.

14             MR. ROGERS:  On the evening of the 13th of July, Popovic conveyed

15     to Zvornik -- Drago Nikolic -- to the Zvornik Brigade area, to

16     Drago Nikolic, Mladic's order to execute the prisoners in the Zvornik

17     Brigade area of responsibility, following which Drago Nikolic immediately

18     began working on the new task by leaving the forward command post, being

19     present with the Zvornik Brigade MP commander Jasikovac and others at the

20     Grbavci school on the night of the 13th of July and into the morning of

21     the 14th of July.

22             It's corroborated on the 14th of July, after his 15- to 20-minute

23     meeting at the Standard barracks with Beara and Drago Nikolic, referred

24     to in the judgement at 1106, Popovic accompanied a half-kilometre long

25     column of prisoners and soldiers to the Grbavci school at Orahovac,

Page 110

 1     referred to in the judgement at 1107 and 1108, and he remained present at

 2     the school and oversaw the execution, referred to in the judgement at

 3     481, 483 to 488, and 1111 to 1112.

 4             And throughout it all, he contributed to ensuring there was

 5     sufficient fuel supplies for the work being done, and that's referred to

 6     in the judgement at 1110.

 7             It also refers to his presence on the 15th of July at the Rocevic

 8     school when he sought trucks for transportation of prisoners and

 9     personnel to carry out the executions at Kozluk, referred to in the

10     judgement at 511 to 516, and 1118 to 1120.

11             THE INTERPRETER:  Interpreter's note:  Could counsel kindly slow

12     down.  Thank you.

13             JUDGE ROBINSON:  I think I have to make the request explicitly

14     now.

15             MR. ROGERS:  Yes, Your Honour, I'm sorry.  I'm trying not to go

16     too fast.

17             On the 16th of July, he was present in the Pilica area, directing

18     the 10th Sabotage Detachment members in relation to the executions at

19     Branjevo Farm and also at the Pilica Dom, and continuing to ensure again

20     fuel.  And that's referred to in the judgement at 1124 to 1127, and 1130

21     to 1134.

22             On the 17th of July, he reports the killing and burial operation

23     job, gets an A, trial judgement 1142, and on or about the 23rd of July he

24     facilitated the killing of the 10 Milici prisoners, referred in the

25     judgement at 1153 to 1156.  Corroborative of his findings overall -- of

Page 111

 1     the findings overall relating to his involvement in the killing operation

 2     is his presence at the Bisina executions on the 23rd of July and, in

 3     September 1995, his involvement in the reburial operation, including,

 4     again, by obtaining fuel, referred to in the judgement at 1158 to 1161.

 5             Your Honours, taking all of that together and the careful

 6     assessment of Momir Nikolic's evidence, the Chamber demonstrated that it

 7     was very careful in its approach not just towards Momir Nikolic but also

 8     to the approach to Witness PW-168.  Again, in relation to PW-168, the

 9     Trial Chamber gave a detailed explanation of why it considered him to be

10     credible.  It's in the judgement at 1347 referring to the judgement at

11     paragraphs 28 to 47.

12             The Chamber was fully cognisant of the many challenges to this

13     witness's reliability, in particular with regard to the conversation

14     between Obrenovic and Drago Nikolic on the night of the 13th July 1995 in

15     which Drago Nikolic informed Obrenovic that Popovic had ordered

16     Drago Nikolic to make preparations for a large number of Bosnian Muslim

17     prisoners coming into the Zvornik sector and that on Mladic's order they

18     were to be shot.

19             It's in the judgement at 1345 to 6.

20             The Chamber gave detailed reasons as to why it accepted PW-168's

21     account, noting much of the content of the conversation was supported by

22     other evidence.  It's in the judgement at 1349.  For example, in the

23     conversation, Drago Nikolic requested to be relieved from duty at the

24     IKM, forward command post.  The fact of his release was supported by the

25     testimony of Mihajlo Galic and the Zvornik Brigade forward command post

Page 112

 1     logbook.  And in addition, the evidence of PW-168 that Drago Nikolic,

 2     Jasikovac, and members of the Zvornik Brigade MP participated in

 3     preparing the detention sites was corroborated by PW-143 and other

 4     evidence, the judgement at 1350.

 5             Your Honours, this same careful approach is demonstrated by the

 6     Chamber's assessment of the evidence of Srecko Acimovic and also in its

 7     assessment of PW-101.  Your Honours, all of these witnesses testified.

 8     Their evidence was received over very many days and subjected to

 9     extensive testing through cross-examination.  The Trial Chamber was thus

10     in a perfect position to assess the reliability and credibility of the

11     witness.  It had the opportunity to observe them, to assess their

12     demeanour, an opportunity not afforded to this Chamber.

13             And indeed, where the Chamber was not sure about evidence

14     implicating Popovic, they rejected it.  For example, they rejected

15     evidence of Popovic's presence at the Petkovci dam, in the judgement at

16     1116.

17             Your Honours, it's trite but this is not a trial de novo.  Yet in

18     his challenges to the assessment of the evidence, this is in reality what

19     Popovic seeks.  Popovic must fail in his challenges to the approach the

20     Chamber took to the assessment of the witness evidence and the

21     conclusions arising from that approach.

22             Your Honours, I turn now to deal with a broad overview of the JCE

23     to murder.  Because of the connections between all of the accused, it's

24     important to understand how the Chamber saw this as a holistic whole in

25     understanding the interrelationships.  And as a start, I would like, if

Page 113

 1     I may, please, to just say a few words about the organisational structure

 2     of the forces involved in the operation.  And, Your Honours, we have

 3     created a slide which is fully referenced to the judgement in the bottom

 4     left-hand corner you can see, I hope, on your screens, when it comes up.

 5     I'll just pause and wait to make sure Your Honours all have it or can at

 6     least see one of them.

 7             I hope Your Honours can all see it.

 8             Tried to make sure the font size is sufficiently large to be --

 9     for our eyes, mine included.  The Tribunal should invest in 17- and

10     21-inch screens but I daren't suggest that.  Looking at the slide, what

11     we tried to demonstrate here is the structures on one page so you have an

12     understanding of the connections.  The top box shows in broad terms the

13     VRS Main Staff.  Doesn't have everybody on it but just the people that

14     are significant for this discussion.

15             At the top, of course, Mladic is the commander, and attached to

16     him is a line to the 65th Protection Regiment.  That's there simply to

17     indicate it's one of the units that you've heard about and where it fits.

18     Coming down from Mladic and the first line we see Gvero on the left-hand

19     side for morale, legal, and religious affairs.  Obviously previously one

20     of the accused in this case.  Then coming along we have Milovanovic, the

21     Chief of Staff, and below him, within the staff sector, sits Mr. Miletic.

22             Then going across to the right-hand side, we see Tolimir as the

23     general responsible for security and intelligence within the Main Staff,

24     and sitting beneath him, Salapura and Beara.  And attached to Salapura,

25     the 10th Sabotage Detachment.

Page 114

 1             And then coming down out of the Main Staff to the corps level,

 2     which is the middle box, we see how the corps sits.  Of course, under the

 3     Main Staff are various corps structures, the Drina Corps being the

 4     relevant one here.  See the command is there marked as Zivanovic and

 5     General Krstic.  Of course, Krstic replacing Zivanovic on the

 6     13th of July.

 7             Then on the left-hand side, Borovcanin sits as a temporary

 8     attachment to the Drina Corps, and to the right-hand side sits Popovic,

 9     obviously with others, but that's the connection as chief of security in

10     the Drina Corps.

11             And then we move down below to the brigade levels and on the

12     left-hand side the Bratunac Brigade.  Sitting in the Bratunac Brigade is

13     Blagojevic as the commander, Momir Nikolic as the security organ within

14     the Bratunac Brigade.  Of course, it's helpful to understand who he is

15     and where he sits as we hear so much about him.  And then there is a

16     reference to Jankovic as the commander of the military police.

17             Moving across to the Zvornik Brigade, we see its commander,

18     Vinko Pandurevic, and then sitting below him is Obrenovic, the Chief of

19     Staff.  And going through the Chief of Staff, Jokic, the engineering

20     commander, and Jasikovac, the military police commander.  And then

21     sitting to the right-hand side, Drago Nikolic, the security organ within

22     the Zvornik Brigade.

23             And Your Honours see the dotted line joining the security organs

24     representing their professional reporting line, it's a dotted line, not a

25     solid line, but it represents their professional reporting line.  And how

Page 115

 1     they are connected together at least in that regard.

 2             I hope that gives some useful insight at least on one page as to

 3     how the structures fit together.

 4             As the judgement found, the murder operation was "a coordinated

 5     effort reaching from the VRS commander," Mladic, "and some members of the

 6     Main Staff through the Drina Corps, the MUP and down to the Zvornik and

 7     Bratunac Brigades and the battalions thereof."

 8             They went on:

 9             "... it is clear that individual units from across the VRS worked

10     together in the implementation of the common purpose."

11             Judgement 1065.

12             Your Honours, I think we can remove the structure from the screen

13     if that's distracting.

14             They went on:

15             "Further, what is clear is from the evidence before the

16     Trial Chamber is that such an operation, on a massive scale, involving

17     the participation of a multitude of VRS members from the Main Staff down,

18     could not have been undertaken absent the authorisation and order of the

19     VRS commander Mladic," judgement 1071.

20             It concluded:

21             "The Trial Chamber is satisfied that Mladic was a driving -- a

22     central, driving force behind the plan to murder and its implementation."

23     Judgement 1071.

24             Your Honours, in order to implement this order on such a massive

25     scale, the Trial Chamber recognised that the concerted effort from many

Page 116

 1     was needed.  And in relation to the security administration, it

 2     recognised:

 3             "... while various battalion, brigade and corps commanders,

 4     forces and individual members were drawn into the plan as participants

 5     and perpetrators, each contributing in different ways, this was an

 6     operation steadily organised and directed by the security branch of the

 7     VRS."  Judgement 1070.

 8             Your Honours, with ruthless efficiency, the forces of the

 9     Drina Corps, including MUP units and in particular the Zvornik Brigade,

10     have been mobilised to exterminate a thousand men at Kravica warehouse on

11     the 13th of July, between 800 and 2 and a half thousand at Orahovac on

12     the 14th of July, over 1800 men at Petkovci and Kozluk on the

13     15th of July, and between a thousand and 2.000 in the Pilica area on the

14     16th of July.  One day later, on the 17th of July, the bodies had been

15     removed from site and buried.  Within five days, those fathers, brothers

16     and sons had simply vanished.

17             We agree with Vujadin Popovic when he argues at paragraph 181 of

18     his brief "the highest echelons of the Main Staff could not have any

19     preconceived plan to commit mass murder without resolving the most basic

20     logistics, at least, one, when, two, where, and three, who would carry it

21     out.  And that at paragraph 182 when he says:

22             "Further, this plan required various resources, manpower,

23     ammunition, vehicles, machines, and fuel."

24             We agree.  It did.  The operation required massive coordination

25     and cooperation between many forces on the ground.  The Trial Chamber

Page 117

 1     found that in relation to this, Popovic played a pivotal role in the

 2     organisation, coordination and implementation of the killing operation,

 3     judgement 1168.

 4             It found as for Beara that he played a key role in orchestrating

 5     the murder operation by planning, coordinating, and overseeing the

 6     detention, execution and burial of the victims, judgement 1299.

 7     Together, Popovic and Beara organised other security officers to assist

 8     including Drago Nikolic and Momir Nikolic, judgement 1068.  In Zvornik

 9     area, Popovic, Beara and Drago Nikolic worked closely together to

10     translate the murder plan into actions by their planning and physical

11     preparations, judgement 1391 to 2.  But their organisation would come to

12     nothing without the use of the brigade assets and the support of the

13     brigade and the corps commanders.  This is illustrated by the need for

14     Drago Nikolic to obtain permission from Obrenovic, Chief of Staff of the

15     Zvornik Brigade, to be released from duty at the IKM of the

16     Zvornik Brigade to implement the murder plan, and for permission to use

17     brigade assets, in this case Jasikovac and the MP.  It's found in the

18     judgement at 1345.

19             Likewise, Beara, a Main Staff officer with the security

20     administration, reporting directly to Tolimir, the Main Staff general,

21     needed to obtain additional troops from Krstic, the Drina Corps

22     commander, on the 15th of July, to distribute 3500 parcels which the

23     Chamber found was a euphemism for the killing of the prisoners, as

24     demonstrated by the intercepted conversation with Krstic on the

25     15th of July and referred to in the judgement at 1282.

Page 118

 1             The fact that so many were killed in such a short space of time

 2     and their bodies dumped into mass graves is a testament to the ruthless

 3     efficiency of the killing operation operated by Popovic, Beara and

 4     Nikolic and supported logistically by the Zvornik and Bratunac Brigades.

 5     Without their guards, their transport, their munitions, without those

 6     willing to kill, without their machinery and the men to bury the bodies,

 7     this operation could not have been successful.

 8             The fact there were but a handful of survivors shows the

 9     calculated determination to eliminate every last one of the victims, to

10     make sure that the details of this terrible crime could never come to

11     light.

12             Thankfully, miraculously, some survived, some hidden under the

13     corpses of friends and brothers, some managing to escape and live despite

14     terrible wounds.  Their voices were heard, together with the voices of

15     those who carried out the killings, those who buried the bodies, those

16     who organised the logistics, and testified to the organisation.

17     Together, the Trial Chamber was able to build a clear picture of what

18     happened on those notorious days between the 11th and the 17th of July,

19     1995, and in relation to the cover-up in the months that followed.

20             Your Honours, I turn now to the events of the 11th to the

21     17th of July and how the team of Popovic and Beara and Nikolic

22     accomplished the killings.  Your Honours, let me first give a short

23     outline of the events leading up to the formation of the murder plan.

24             11th of July, Srebrenica fell, judgement 260.  Thousands of

25     Bosnian Muslims fled from Srebrenica to Potocari, judgement 264.  As they

Page 119

 1     fled the enclave they were shelled and shot at, judgement 265.  On the

 2     evening of the 11th of July, many able-bodied men gathered at Susnjari,

 3     having separated from their families on the road to Potocari, as they

 4     feared they would be killed if they remained in the Srebrenica enclave

 5     once it fell into Bosnian Serb hands, judgement 267.  A fear that was

 6     evidently well-founded.

 7             Before midnight, a column of 10- to 15.000 men formed between

 8     Susnjari and Jaglici approximately ten kilometres long and started to

 9     move towards Konjevic Polje via Nova Kasaba and on to Tuzla,

10     judgement 269.  The column presented a significant challenge for the VRS

11     forces in Bratunac and Zvornik, and on the 11th of July, VRS forces were

12     ordered to block it and carry out ambush activities on it, judgement 364.

13             Your Honours, I'll just ask you to look now at a map.  This is

14     Exhibit P02111.  I just want to orientate you around the region, so if

15     the places are not fully familiar, at least they may become familiar.

16     Your Honours can see on the map, and towards the bottom, Srebrenica, and

17     if we drive up the road from Srebrenica towards Potocari, going north, we

18     can see coming from Potocari to the left is a little road towards Jaglici

19     and Susnjari.  Does Your Honours have that on the screen?

20             JUDGE ROBINSON:  I believe we need some help.

21             MR. ROGERS:  Ah, forgive me.

22             JUDGE ROBINSON:  Yes.  Please start over.

23             MR. ROGERS:  Yes.  If I can just orientate Your Honours, if

24     I make sure all of Your Honours have got it now, yes.  Thank you.  If we

25     go to Srebrenica, down at the bottom, the large town or large words of

Page 120

 1     the town, then we can find it, and then drive north, imagine we are on a

 2     road driving north and we come a fork in the road and there is Potocari.

 3     Now we can carry on north to Bratunac or we can turn left just before

 4     Potocari and drive in our car towards Jaglici and Susnjari.  And there,

 5     you will see two red lines.  And the two red lines travel northwest

 6     towards Nova Kasaba, if you follow them you will arrive at Nova Kasaba

 7     and Konjevic Polje.  That indicates the direction of movement of the

 8     column, from -- when it started to move towards Konjevic Polje.  And if

 9     we get to Konjevic Polje, Nova Kasaba, and then drive back towards

10     Bratunac on the road, we will drive through Sandici, Kravica and Glogova,

11     and then finally we arrive back in Bratunac.

12             So, Your Honours, just having orientated you around the

13     locations, I just want to speak now a little bit about the 12th of July

14     and I'll come back to the map in a minute.

15             Your Honours, the 12th of July was about the separation of the

16     remaining men from the women and children in Potocari.  Women and

17     children were bussed away and the men detained.  In addition, orders were

18     given on the 12th to secure the Konjevic Polje to Bratunac road, from the

19     column of the Muslim men seeking to break through to Tuzla.  That's in

20     judgement 365.

21             The Chamber found that the murder operation began on the

22     12th July with the separation of the men from the Bosnian women and

23     children gathered in Potocari, at judgement 1050.  Buses and trucks to

24     transport the civilians away began to arrive in the afternoon, judgement

25     316, arranged on the orders of Mladic on the 11th of July.  293 in the

Page 121

 1     judgement.  The men were separated by Bratunac Brigade MPs supervised by

 2     Momir Nikolic, the security organ for the Bratunac Brigade in whose area

 3     of responsibility at that time the prisoners were held.  Sometime before

 4     the third Hotel Fontana meeting that morning, Popovic told Momir Nikolic

 5     that these separated men were all to be killed.  Momir Nikolic, using his

 6     local knowledge, assisted Popovic, Drina Corps security chief, with

 7     identifying locations to detain and also to execute prisoners.  He

 8     identified the Vuk Karadzic school and the hangar in Bratunac, both

 9     locations where hundreds of prisoners were subsequently held.

10             Popovic argues in his brief and again today that Nikolic's

11     account of this meeting should be rejected, that he was unclear and

12     inconsistent about whether he suggested detention and execution sites or

13     whether only Popovic or Kosoric mentioned it, in his appeal brief at 75

14     to 77.  But the Trial Chamber was clear that it considered Nikolic

15     remained consistent in his account of the discussion and the content of

16     that discussion on the morning of the 12th July outside the Hotel Fontana

17     and, as I've already outlined, gave detailed reasons why it accepted his

18     evidence, 280 to 288.  The Chamber carefully analysed his statement of

19     facts from the 6th of May, 2003, and indeed made it an exhibit in the

20     case, Exhibit C1.

21             THE INTERPRETER:  Could the counsel please slow down for the

22     purposes of interpretation.  Thank you.

23             JUDGE ROBINSON:  Yes, I think you have to make a more determined

24     effort.

25             MR. ROGERS:  I'm trying, Your Honour.  I'm sorry.  I usually run

Page 122

 1     into [indiscernible].

 2             Your Honours, to resume the narrative, the separated men were

 3     detained at the White House in Potocari on both the 12th and the

 4     13th of July, guarded by Bosnian Serb forces including MUP and VRS

 5     soldiers.  In Potocari, some men made it on to buses with the women and

 6     children, going towards Kladanj to the west.  But at Tisca, the buses

 7     were stopped, VRS soldiers searched them, removed the men, and on one

 8     occasion 70 or 80 were taken away in the direction of the forest.  And

 9     later, on the 13th of July, around 20 men were separated at Luke near

10     Tisca and that night taken to a field and shot in the back of the truck,

11     the sole survivor fleeing into the forest.  He had heard the soldiers

12     discussing Kravica and how "they had finished with the balijas."

13             Returning to Potocari, eventually the men from the White House

14     were transported to Bratunac.  We will just return now to the map.  We

15     have animated just to show you the movement, from Potocari to Bratunac.

16             In Bratunac, they were, as I've described already, held in

17     various locations where they were guarded by Bosnian Serb forces.  We

18     will just keep the map there because I'll return to it in a minute.

19             On the night of 12/13 July, elements of the column attacked VRS

20     forces along the road.  That's the Bratunac to Konjevic Polje road.

21             Turning now into the 13th of July, in summary, this was a day

22     when the prisoners were being transported to the Bratunac area and

23     detained to await their fate.  It was a day also when the killings began:

24     At Kravica warehouse, a thousand; in Cerska Valley, 150; Jadar River, 16.

25             Bratunac was to be the collection point for the majority of the

Page 123

 1     prisoners.  The executions were originally planned to be nearby, but the

 2     plan had to change, resulting in the transportation of prisoners to the

 3     Zvornik area of responsibility.

 4             On the 13th of July, a fresh order from the VRS Main Staff to the

 5     Drina Corps, Zvornik, and other brigades, was issued to block, disarm and

 6     capture Muslim groups and prevent them from crossing into Muslim

 7     territory, judgement 379.  As part of that initiative, Bosnian Serb

 8     forces issued an ultimatum to members of the column to surrender or be

 9     killed.  As a result, thousands surrendered.  They were initially

10     detained at various sites at Konjevic Polje area including the Sandici

11     meadow and at Nova Kasaba.  And an intercept timed at 5.30 p.m. on the

12     13th of July indicates over 6.000 men were being held at three locations

13     in the Bratunac area.

14             Your Honours, to continue with the arrow sequence, just want to

15     show you some of the movements.  There was an intersection between

16     Bratunac-Konjevic Polje road to Nova Kasaba.  If you find the Konjevic

17     Polje there in the north-west, there was a small movement to a warehouse

18     in Konjevic Polje.  It's referred to in the judgement at 389.  Also on

19     the 13 of July, from the warehouse in Konjevic Polje, there was a

20     movement to the Nova Kasaba football field.

21             Also, on the 13th, at Sandici, so to just travel along the road

22     towards Sandici, please, on the Bratunac road, you'll find there is a

23     movement from there to the Kravica warehouse.  It's in the judgement at

24     388 and 421.  Also from Sandici to Bratunac, referred to in the judgement

25     at 388.

Page 124

 1             Back to Konjevic Polje, from the warehouse in Konjevic Polje to

 2     Bratunac, judgement 389.  And finally, from the Nova Kasaba football

 3     field to Bratunac, so south of Konjevic Polje there is a movement there.

 4             So Your Honours can see, on the 13th of July, there is a

 5     collection of prisoners broadly in the Bratunac area.

 6             There is a number of common themes relating to them which

 7     demonstrate that they were marked to be killed.  For the most part, they

 8     were not fed or provided with adequate water or access to medical

 9     facilities.  No adequate records, apart from a few, were made of their

10     existence.  Names and details were not taken in relation to the detention

11     of the prisoners.  There was some evidence of that but not for the vast

12     majority.  Their personal belongs were piled up, identity documents were

13     removed, money and gold were stolen from them.  They were held in

14     appalling conditions, overcrowded and insanitary.  They were abused.

15     They were insulted.  And for many they were bound, they were blindfolded,

16     and then they were murdered.

17             On the night of the 13th of July, Beara, in Bratunac, announced

18     himself to Deronjic as the man who had "come to kill all the Bosnian

19     Muslims that were being warehoused in schools and buses in Bratunac."

20     Judgement 1264.

21             But the reaction of the local SDS was that the killings were not

22     to be carried out in the Bratunac area and there was an argument.

23     Judgement 1264 and 1270.  New locations were needed.  But by this time,

24     the Kravica warehouse killings had already happened in the late afternoon

25     of the 13th of July, so there was already a burial problem.  Solutions

Page 125

 1     for the burials of the dead were debated through the early hours of the

 2     14th, resulting in Beara ordering PW-161 later to go with an MP to find a

 3     place to bury the Kravica bodies.  They did.  They were buried at Glogova

 4     and Ravnice.  And.

 5             In order to solve the problem of continued executions, the

 6     Zvornik Brigade became involved as new places of detention and murder

 7     away from Bratunac were required.  That evening, on the 13th of July,

 8     Beara ordered Momir Nikolic to go to the Zvornik Brigade forward command

 9     post to tell Drago Nikolic that Bosnian Muslim prisoners were to be

10     detained and killed in the Zvornik area.

11             Drago Nikolic called Obrenovic, the Chief of Staff of the Zvornik

12     Brigade, to be asked to be relieved of duty at the IKM so that he could

13     make preparations for prisoners from Bratunac who were to be brought to

14     the Zvornik Brigade area of responsibility and killed.

15             Nikolic told Obrenovic -- Momir Nikolic told Obrenovic -- sorry,

16     Drago Nikolic told Obrenovic that Popovic had called him and asked him to

17     make arrangements and that Popovic and Beara would bring the prisoners.

18     Nikolic also asked to be given Jasikovac and a company of MP for the

19     task.  Your Honours can find it this in the judgement around 1345.

20             That evening, on the 13th of July, Zvornik Brigade MP under the

21     command of Jasikovac went to the Grbavci school to begin preparations to

22     receive prisoners.  Drago Nikolic was at the school that night giving

23     orders to the MP there to guard the prisoners, and prisoners arrived from

24     Bratunac.

25             The 14th of July, Popovic, Nikolic and were working together to

Page 126

 1     transport and detain the prisoners and coordinated their murders.

 2     Popovic and Nikolic coordinated the transport, detention and murder, and

 3     throughout the day and night, burials of the dead continued.

 4             The last map I'll show you on the slide, please, indicates just

 5     in broad terms, between the 14th and 16 July, the movements of the

 6     prisoners from Bratunac up north to the places where they were killed.

 7     So starting with the arrow on the left, after it splits, the arrowhead

 8     ends Orahovac.  The second arrowhead ends at Petkovci.  And then there is

 9     a movement from the Petkovci school to the dam shown by the little arrow.

10     The third arrowhead ends in Rocevic, and there is a movement to Kozluk.

11     And the final arrowheads split to the Kula school at Branjevo, near

12     Branjevo, and Pilica Dom, the cultural centre, and the movement from the

13     Kula school to Branjevo Farm.  Obviously, the arrow doesn't indicate

14     precisely where they physically went.  It's not suggesting for a moment

15     this that they went through the territory of the FRY.  It's just

16     indicative of the movement of the prisoners north over the 14th, 15th,

17     and into the 16th.

18             So on the 14th of July in the morning, at around 8.00 a.m.,

19     Nikolic, Popovic and Beara meet at the Standard barracks, that is the

20     Zvornik Brigade headquarters in Karakaj.  And Karakaj is just to the

21     west -- to the east of Orahovac, north of Zvornik.  The Chamber found

22     that that meeting concerned the murder operation, judgement 472.

23     Following that, Beara returned to Bratunac in order to attend to the task

24     of burying the dead from the Kravica murders and finding places to detain

25     and murder other prisoners.  And after the meeting, Popovic left to

Page 127

 1     accompany the convoy of prisoners from Bratunac.  In Bratunac, Popovic

 2     led the convoy, judgement 1108, to the Grbavci school in Orahovac,

 3     stopping in Divic to pick up Drago Nikolic.  Popovic was in Orahovac as

 4     the prisoners were herded into the school.  Drago Nikolic was seen

 5     throughout the day in Orahovac directing operations as between 800 and

 6     2500 prisoners were detained there, moved to a field about a kilometre up

 7     the road and murdered.  And in the afternoon of the 14th of July, Zvornik

 8     Brigade engineers and excavators were digging a large pit at Orahovac at

 9     the execution site, in judgement 482.  The prisoners were kept in

10     appalling conditions in the school, they were blindfolded, they were

11     bound before being herded on to the trucks and driven to their deaths.

12     481 to 484.

13             Soldiers from the 4th Battalion Zvornik Brigade and logistics

14     personnel escorted the prisoners to the site, 483.  And trucks, including

15     Zvornik Brigade trucks, transported the prisoners throughout the

16     afternoon and the evening --

17             THE INTERPRETER:  Can the counsel please slow down?  It's

18     impossible.

19             MR. ROGERS:  I'm very sorry.

20             JUDGE ROBINSON:  I think you really have to make an effort.

21             MR. ROGERS:  I'm trying.

22             JUDGE ROBINSON:  Perhaps you should be recruited to the UK's

23     Olympic team.  You might find that your speed on the track is as fast as

24     your speech.

25             MR. ROGERS:  Your Honour, thank you.  I have to lose some weight

Page 128

 1     first, I think, but thank you.

 2             At least one member of the 4th Battalion participated in the

 3     killings.

 4             The Trial Chamber found that both Drago Nikolic and Popovic were

 5     present during the killings at Orahovac and were directing those

 6     killings.  Judgement 1112.

 7             As the Orahovac killings were taking place, a new request for

 8     digging equipment was made to the Zvornik Brigade in relation to the task

 9     "being performed by Popovic and Beara."  That's found in the judgement at

10     1277.

11             And Beara was seen at the Grbavci school in Orahovac.  He was

12     also seen at the school near Nova Kasaba football field and, later that

13     afternoon, back at the Zvornik Brigade headquarters at the Standard

14     barracks where he was complaining:

15             "We have a lot of prisoners and it's very hard for us to control

16     them.  They are at various locations in the Zvornik municipality.  We

17     have to get rid of them.  I expect assistance from the municipality."

18             Judgement 1278.

19             By this assistance, the Chamber found he meant to get rid of the

20     dead; that is, to kill them and bury their bodies.

21             Beara said he was in command of the barracks and that the orders

22     came from "the two presidents," judgement 1278.

23             Jokic, the engineering man, called Beara at the Bratunac Brigade

24     headquarters complaining that there were big problems with the parcels,

25     meaning prisoners, judgement 1280.  The Zvornik Brigade notebook records

Page 129

 1     at 3.00 p.m., "Colonel Beara is coming in (the following) order, to

 2     Orovoc," that is Orahovac, "Petkovci, Rocevic, and Pilica."  Judgement

 3     1276.  Later that evening, Beara was seen at the Petkovci school with

 4     Drago Nikolic, judgement 1279, and the Chamber found that Beara

 5     coordinated the detention, transport, execution, and burial of the

 6     prisoners detained at Petkovci.

 7             Meanwhile, also on the 14th of July, other prisoners were being

 8     moved to the Kula school near Pilica and to the Rocevic school near

 9     Kozluk.  Drago Nikolic, as well as his involvement in the operation at

10     Orahovac, was in contact with the 1st Battalion Zvornik Brigade asking

11     Slavko Peric, the assistant commander for security intelligence, to go to

12     the Kula school to ensure there were no problems with local civilians.

13     Ten to 15 members of the 1st Battalion then went to the school to secure

14     it for the arrival of the prisoners, judgement 527.  Prisoners arrived

15     and were again detained in the school in abysmal overcrowded, insanitary

16     conditions.  Food and water were scarce.  No medical treatment was

17     provided.  Prisoners were beaten if they wanted to use a toilet and so

18     they soiled themselves, judgement 529.  Guarding by the 1st Battalion

19     continued throughout the day and night of the 14th, 15th, and into the

20     16th.

21             At Rocevic school, Bosnian Muslim prisoners were detained and

22     guarded by Bratunac Brigade soldiers including MP, and between the

23     14th and 15th of July, those numbers swelled to around a thousand,

24     judgement 1117.  And in the afternoon of the 14th, Srecko Acimovic,

25     commander of the 2nd Battalion, called the Zvornik Brigade headquarters

Page 130

 1     and spoke there to Popovic about the prisoners.  Popovic said they would

 2     be exchanged the next day.  Judgement 1113.

 3             Moving into the 15th, Popovic, Beara and Nikolic continued to

 4     work together to ensure the killing operation continued at pace.  The

 5     burials at Orahovac continued and the killings at Kozluk of the prisoners

 6     from Rocevic began and the killings of the Petkovci school detainees also

 7     started.

 8             In the early hours of the 15th, Drago Nikolic was acting as the

 9     duty officer at the Zvornik Brigade.  A message was sent from the

10     Zvornik Brigade headquarters to Acimovic, the 2nd Battalion commander, to

11     form a platoon to be sent to Rocevic to kill the prisoners there.  At

12     about 0230, Nikolic followed up the telegram insisting that the order be

13     carried out, judgement 1368.  When Acimovic refused, Nikolic said he

14     would meet Acimovic that morning at the school, and reported that Beara

15     was coming to the Standard barracks at around 9.00 a.m.  At around 10.00,

16     Popovic met Acimovic at the school.  Popovic was angry, asking why the

17     executions squad had not been brought as ordered, judgement 511 and 1118.

18     He was angry when only one truck turned up to transport the prisoners to

19     the execution site, saying that they would have to be killed at the

20     school.  Judgement 513.

21             Acimovic ordered the prisoners to be taken to Kozluk where

22     ultimately they were killed by the 2nd Battalion Zvornik Brigade,

23     including at least one MP.  They were guarded by the 2nd Battalion MPs.

24     They were blindfolded and bound and loaded on to 2nd Battalion trucks,

25     518, and transported to the killing site at Kozluk.  Three crates of

Page 131

 1     ammunition for automatic rifles were sent to the Rocevic school by the

 2     2nd Battalion, and one of the 2nd Battalion soldiers testified of the

 3     prisoners:

 4             "They were half dead, exhausted, without water or bread, nobody,

 5     nobody begged for their lives.  And this worries me greatly.  Nobody

 6     said, 'Spare my life.'"

 7             Judgement 518.

 8             The prisoners were shot on the banks of the river.  That morning,

 9     around 10.00 a.m., Beara called Krstic asking for ten -- 15 to 30 men to

10     help in the murder operation.  He told Krstic he had 3500 parcels to

11     distribute, in other words to kill, and he couldn't do anything without

12     the additional men.  He was told to take soldiers from the Bratunac

13     Brigade, judgement 1282.  There were still around 3.000 men distributed

14     between Rocevic, Kula school, and the Pilica cultural centre.

15             Meanwhile, still on the 15th, the burials at Orahovac continued

16     with Zvornik Brigade engineering assets, and trucks were being used to

17     remove prisoners and bodies from the Petkovci school.  Those detained at

18     the Petkovci school were told to remove most of their clothes, had their

19     personal materials taken from them.  They were blindfolded and bound,

20     loaded on to 6th Battalion Zvornik Brigade trucks, transported to the

21     Petkovci dam killing field and murdered.  In the evening, Popovic and

22     Beara met at the Zvornik Brigade headquarters.

23             By the 16th of July, only the Kula school and the Pilica Dom

24     cultural centre prisoners remained to be killed, the last stretch in the

25     operation, between a thousand and 2.000.  Beara and Popovic, the

Page 132

 1     judgement found, arrived at the Kula school around noon that day with

 2     around 10 to 12 soldiers in a van and an empty bus.  Soon after, the

 3     prisoners were bound, some were blindfolded, they were driven away, taken

 4     to the Branjevo military farm, a Zvornik Brigade asset, and in groups of

 5     ten they were murdered.  The killing was undertaken by eight to ten men

 6     of the 10th Sabotage Detachment and continued from 10.00 in the morning

 7     until 3 or 4 in the afternoon when the killers were joined by soldiers

 8     from Bratunac.

 9             One survivor testified:  "When they opened fire, I threw myself

10     onto the ground.  My hands were still tied behind my back and I fell on

11     my stomach, face down.  And one man fell on my head.  I think he was

12     killed on the spot.  And I could feel the hot blood pouring over me.  The

13     shooting continued and then they ordered soldiers to shoot people

14     individually.  And I could hear a voice saying that they shouldn't shoot

15     people in the heads, so that their brains wouldn't spill out, but rather

16     to shoot them in their backs."

17             Judgement 539.

18             The Trial Chamber found that Popovic was the lieutenant colonel

19     who arrived at the farm in the morning in company with two MPs and the

20     10th Sabotage execution squad, judgement 1131 to 33.

21             A short distance away at the Pilica cultural centre of all

22     places, prisoners had been brought a few days earlier.  They were guarded

23     by Bosnian Serb forces.  And in the afternoon, they were all murdered

24     there in the cultural centre.  Popovic was in the area at that time,

25     according to the judgement, ordering 500 litres of fuel to be delivered

Page 133

 1     to Pilica "or else," as recorded in an intercept at 1.58 p.m. on the

 2     16th, "the work he's doing will stop.

 3             The Trial Chamber rightly considered that this fuel was related

 4     to the transport, execution, and burial of the prisoners.

 5             A lieutenant colonel also ordered men from the 10th Sabotage to

 6     go to the Dom, the cultural centre, from Branjevo Farm to kill the

 7     prisoners.  Judgement found this was Popovic.  540, 1133.  He had been in

 8     the cafe at Pilica a few metres from the Dom, the judgement found, and a

 9     soldier reported to him after the killings there that "everything is

10     finished."  Judgement 1133.

11             When the Branjevo Farm executions and the Pilica Dom killings

12     completed everything was finished.  The prisoners were all dead.  At

13     about 9.16 p.m. that evening, Popovic is intercepted reporting:

14             "Tell the general ... I've finished the job ... I finished

15     everything."

16             Intercept P01201A, judgement 1136.

17             The only thing to be done after the killing was the burying of

18     the bodies, and on the 17th of July, Popovic reported, the judgement

19     found, on the satisfactory completion of the murder operation.  The

20     burials were completed on the 17th, the judgement found, between 542 to

21     547, with engineers and equipment from the Zvornik Brigade.  And in the

22     afternoon of the 17th, Popovic reported:

23             "Everything is okay, that job is done ... everything's been

24     brought to an end, no problems ... basically that gets an A ... an A ...

25     the grade is an A" --

Page 134

 1             JUDGE ROBINSON:  I have to interrupt you, Mr. Rogers.  I'm

 2     informed by my colleague that the French interpreters are not able to

 3     follow you because of your speed.

 4             MR. ROGERS:  Okay.  I'm nearly finished, you'll be pleased to

 5     know.

 6             JUDGE ROBINSON:  Not surprising.

 7             MR. ROGERS:  Your Honours, just to conclude with this:  I'll just

 8     reread this part.  In the afternoon of the 17th, Popovic reported:

 9             "Everything is okay, that job is done ... everything's been

10     brought to an end, no problems ... basically that gets an A ... an A ...

11     the grade is an A, everything's okay."

12             It's the intercept at 4.22 p.m., P01224A, judgement 1142.

13             And the Trial Chamber found that the job that was being referred

14     to was not anything innocent but was the murder and burial operation.

15             But Popovic's work was not quite complete.  On the 23rd of July,

16     after the main killings between the 13th and 16th, a sweep operation was

17     put in place throughout the Zvornik Brigade area of responsibility and

18     elsewhere in the Zvornik and Srebrenica area.  Ten Bosnian Muslim wounded

19     prisoners had been taken to the Milici hospital and, on the 23rd of July,

20     they were transferred to the Standard barracks.  Pandurevic sought advice

21     from the Drina command as to what to do.  In itself revealing.  Popovic

22     was duly dispatched from the corps command, the judgement found, 1153.

23     The patients were taken away and they were never seen again.  PW-168

24     testified that Obrenovic had been told by Pandurevic that Popovic had

25     arrived with an order from Mladic for the injured men to be liquidated

Page 135

 1     and they were driven away.

 2             Trial Chamber also found on the same day of the Milici patient

 3     killings that Popovic was involved in the mass killings at Bisina, when

 4     prisoners were taken five at a time from trucks and shot.  Judgement 1143

 5     to 1152.

 6             And finally, in September 1995, the Chamber found Popovic was

 7     involved in the reburial operation of the bodies at Glogova, which the

 8     Chamber rightly considered as corroborative of his role in the murder

 9     operation, judgement 1161.

10             Your Honours, in conclusion, Popovic was in it from the

11     beginning.  He was in Potocari on the 12th of July explaining the murder

12     plan before the separations began on the 13th.  He enlisted VRS members

13     such as Momir Nikolic, Drago Nikolic, and Srecko Acimovic to accomplish

14     the plan.  He organised and led the transportation of prisoners to the

15     Grbavci school at Orahovac.  He was present at many of the places of

16     detention, including Rocevic and the Kula school.  The Chamber found he

17     was at Branjevo Farm and close by the Pilica cultural centre.  He

18     organised fuel for the killings, transport, and executioners.  He

19     reported on the success of the work he had done and participated in its

20     cover-up through the reburial of those murdered.  He was committed and

21     dedicated to the task he had been given.  He was rightly and justly

22     convicted for his major role in this atrocity, and his appeals must be

23     dismissed.

24             Your Honours, this completes my overview and my submissions.  And

25     I will pass over, I suspect after the break, to Ms. Soljan and Ms. Nabti.

Page 136

 1             JUDGE ROBINSON:  Your suspicion is right.  We will take a break

 2     now and resume in 20 minutes.

 3                           --- Break taken at 3.00 p.m.

 4                           --- On resuming at 3.27 p.m.

 5             JUDGE ROBINSON:  Yes, counsel, as far as your pace is concerned,

 6     think of it as in horse racing terms, not a gallop but somewhere between

 7     a trot and a gallop, a canter.  I think that would serve us well.

 8             MS. SOLJAN:  Thank you, Your Honours, message understood.

 9             Good afternoon, Your Honours.  Good afternoon, everybody.  My

10     name is Lada Soljan and I'm here on behalf of the Prosecution today.

11             Your Honours, in my submission today, I will briefly summarise

12     Popovic's whereabouts during the relevant time period, to demonstrate how

13     omnipresent he was in the Bratunac and Zvornik Brigade areas of

14     responsibility from the day that Srebrenica fell.  By doing this, I aim

15     to address his overarching challenge that he was just a security officer

16     who was not authorised to coordinate and who was simply carrying out his

17     regular duties while the thousands of Bosnian Muslim men and boys were

18     being executed.  As argued in our response brief, the only reasonable

19     conclusion based on many strands of interconnecting and mutually

20     corroborating evidence - the conclusion that the Trial Chamber reached -

21     is that Popovic significantly contributed to the murder operation through

22     his robust and vigorous participation.  This is at judgement 1178 and

23     1180.  He was properly convicted for persecutions, murder, extermination,

24     and genocide on this basis.  Finally, Your Honours, I shall respond to

25     your questions in relation to the Kozluk gravesite.  As for the rest, the

Page 137

 1     Prosecution stands by its written submissions.  I will of course be happy

 2     to answer any questions that you may have.

 3             Your Honours, you should be seeing on your screens an exhibit, a

 4     map, this is Exhibit P2110, same exhibit as Mr. Rogers showed earlier,

 5     and I would like to use it to highlight some aspects of Popovic's

 6     participation in the murder plan, in other words, to show how ubiquitous

 7     he was from the fall of Srebrenica to less than a week later, when

 8     thousands of Bosnian Muslim men and boys lay buried in the Bratunac and

 9     Zvornik Brigade areas of responsibility.

10             Your Honours, any addition to the original map is based entirely

11     upon the finding in the judgement and it's reflected by the trial

12     judgement paragraphs therein.

13             So on the 11th of July, Your Honours, Popovic was seen walking

14     with General Mladic and other senior VRS officers through the empty

15     streets of Srebrenica town.  On 12 July, he was outside the Hotel Fontana

16     in Bratunac, prior to the third Hotel Fontana meeting.  This is where he

17     told Momir Nikolic "all the balija have to be killed" and discovered

18     possible detention sites -- and discussed possible detention sites and

19     execution sites in the area.  Judgement 1097.

20             Popovic attended the third and final Hotel Fontana meeting at

21     which the separations and screening of war criminals were mentioned, and

22     he was also present with Bosnian Serb forces in Potocari throughout that

23     day on the 12th.

24             Your Honours, on the 13th of July, Popovic attended a meeting at

25     the Bratunac Brigade headquarters with Mladic, Vasic and General Krstic.

Page 138

 1     Around this time, Mladic angrily confronted Popovic outside the

 2     headquarters over his perception that Popovic was not getting on with his

 3     work.  This is at trial judgement 1100.  That evening, at around 7 or

 4     8 p.m., Popovic called Drago Nikolic and informed him that a large number

 5     of prisoners were to be brought from Bratunac to Zvornik to be killed and

 6     he asked Nikolic to assist.  Trial judgement 1104 and 1345.

 7             The next morning, Your Honours, on July 14, Popovic was at a

 8     short 15- to 20-minute meeting in Standard barracks with both Beara and

 9     Drago Nikolic.  In light of the timing of this meeting, the position of

10     these three individuals, as well as their prior and subsequent actions,

11     the Trial Chamber reasonably found that the meeting concerned the

12     organisation and coordination of the murder operation, at trial judgement

13     472.

14             After the meeting, Popovic went to Bratunac, from which he led a

15     large convoy consisting of VRS soldiers and Bosnian Muslim prisoners to

16     Grbavci school in Orahovac.  A large pit was dug in a field a short

17     distance away from the school and machine operators were requested to go

18     to Orahovac "in relation to the task being performed by Beara and

19     Popovic."

20             The Chamber found that between 800 and 2500 Bosnian Muslim men

21     were executed at Orahovac that day and that, in light of the totality of

22     the evidence, there was no other reasonable conclusion but that Popovic

23     was at Orahovac on 14 July and directed the executions there.

24             Your Honours, we have fully briefed the issue of PW-101, the

25     witness who places a lieutenant colonel at this execution site.  We've

Page 139

 1     done this in our response brief at paragraphs 169 to 190.

 2             THE INTERPRETER:  Please slow down.  Thank you.

 3             MS. SOLJAN:  I apologise.

 4             JUDGE ROBINSON:  That's the gallop not the canter.

 5             MS. SOLJAN:  I'll go back to a trot if I can.

 6             In addition, we have made further submissions regarding PW-101 in

 7     our response to the sixth Popovic Rule 115 motion.

 8             Your Honours, by the evening of 14 July, Bosnian Muslim men were

 9     detained inside both Rocevic and Kula schools under similar conditions as

10     the prisoners at Grbavci school had been, and Popovic had a telephone

11     discussion with Acimovic concerning the prisoners there.  The next

12     morning, 15 July, Popovic was at Rocevic school.  He was coordinating the

13     execution of prisoners, he was procuring trucks from Standard barracks to

14     take the prisoners to the execution site, and he was attempting to engage

15     Zvornik Brigade soldiers and volunteers to shoot them.  Judgement 511 to

16     517.

17             The Chamber found that over 1.000 prisoners were executed at

18     Kozluk that day, based on eyewitness testimony and forensic evidence.

19             Your Honours, in his briefs, as well as today, Popovic challenges

20     the Chamber's reliance on Acimovic in reaching its findings regarding his

21     coordination of on-site logistics for the executions of the Rocevic

22     school prisoners at Kozluk.  We stand by our response brief at

23     paragraphs 198 to 217.

24             Around 6.30 p.m. that evening, Popovic again met Beara at the

25     Standard barracks.  Meanwhile, 1.000 to 2.000 prisoners had been detained

Page 140

 1     in the Pilica area, judgement 1124.  On the 16th of July, Your Honours,

 2     Popovic was seen at the Zvornik Brigade headquarters and he joined,

 3     together with two MPs, members of a 10th Sabotage Unit, which had been

 4     ordered to execute busloads of Bosnian Muslims at the Branjevo military

 5     farm.  Popovic arrived at the Kula school with Beara around noon and,

 6     upon his arrival, the prisoners were driven to Branjevo military farm and

 7     executed.  The Chamber found that around 3 to 4 p.m., a lieutenant

 8     colonel, in other words, Popovic, obtained volunteers who were deployed

 9     at the Branjevo military farm to go to the Pilica Dom to execute the

10     500 Bosnian Muslims detained there and they then left with Popovic and

11     the two MPs.

12             Between 1.000 to 2.000 Bosnian Muslims were executed in Pilica

13     and Branjevo Farm and the Pilica cultural centre on 16 July.

14             Your Honours, in his appeal brief and again today at transcript

15     references pages 21 to 23, Popovic disputes the findings that he

16     coordinated logistics on site and that he was the lieutenant colonel

17     present in the Pilica area on June -- on 16 July.  He does so primarily

18     by attacking Erdemovic's inability to identify Popovic as well as by

19     advancing numerous speculative and piecemeal alternative interpretations

20     of evidence.  However, as developed in our response, paragraphs 218 to

21     228, the Chamber has reasonably based its findings on the totality of

22     mutually reinforcing pieces of evidence before concluding that the

23     identification was objectively reliable.

24             Specifically, the Chamber took into account his rank, lieutenant

25     colonel.  It took into account the fact that no other lieutenant colonel

Page 141

 1     was present in the area at that time.  It reasonably took into account

 2     his movements during the 16th of July in the Pilica area, including,

 3     first, his presence at the Kula school at noon together with Beara, and

 4     then later, the fact that a note in the Zvornik Brigade duty officer

 5     logbook at 4.40 indicated that he was in the Pilica area at that time,

 6     around the time of the Branjevo executions.  The Trial Chamber also took

 7     into account his prior role in coordinating the executions in Orahovac

 8     and in Rocevic.

 9             The Chamber further relied on evidence concerning his requisition

10     of fuel, including the 1.58 p.m. intercept that Popovic urgently required

11     500 litres of fuel to be delivered to Pilica "or else the work he's doing

12     will stop," and a contemporaneous note at 2.00 p.m. in the Zvornik

13     Brigade duty officer logbook that Popovic requested a bus with a full

14     tank and 500 litres of D2.  The Chamber reasonably found that even a

15     later intercept at 7.12 p.m. concerning "the request that Zvornik sent"

16     referred to the delivery of fuel.  This is at judgement 1128.  And it

17     considered the evidence of driver Branko Bogicevic, that he indeed

18     transported 500 litres of fuel from Standard barracks to Pilica on the

19     same day.  Additionally, his vehicle log indicated he had travelled to

20     Pilica that day.

21             Based on all this mutually corroborating evidence, Your Honours,

22     the Chamber reasonably found that Popovic's request for fuel and its

23     delivery were related to the operation of executing and burying the

24     prisoners at Branjevo military farm.

25             Later that night, Your Honours, at 9.16 p.m., Popovic was

Page 142

 1     intercepted on a call he made from the Standard barracks in which he

 2     stated:  "I've finished the job."  Taking into account all of the

 3     evidence and Popovic's activities in the days leading up to this

 4     conversation, the Trial Chamber concluded that the only reasonable

 5     interpretation of this evidence is that "the job" refers to the killing

 6     operation.

 7             THE INTERPRETER:  Slow down, please.  Thank you.

 8             MS. SOLJAN:  Now, Your Honours, as Mr. Rogers has already

 9     indicated, the job referred to in the intercept you have before you for

10     the 17th of July refers to the operation to kill and bury the Bosnian

11     Muslim men in Zvornik between 13 and 17 July.  It is Popovic's report

12     that the job gets an A.

13             Your Honours, the Chamber found that Popovic killed or

14     facilitated the killing of ten wounded Bosnian Muslim prisoners from

15     Milici hospital who were placed in his custody around 23 July.  This is

16     at judgement 577 and 1156.

17             The Defence repeated its prior challenges here about the

18     underlying -- for the basis of this finding.  Again piecemeal.  This

19     finding was based on evidence besides just witness testimony, this

20     finding was based on the evidence of two intercepted conversations on

21     that day, which mentioned that Popovic would arrive to sort the matter

22     out, as well as a contemporaneous note in the Zvornik Brigade duty

23     officer logbook that:

24             "8.30 hours - Lieutenant Colonel Cerovic relayed message from

25     commander that LTC Popovic will arrive by 1700 hours."

Page 143

 1             This is at judgement 1153 and footnote 3761.

 2             There was also testimony that Popovic had arrived with an order

 3     from Mladic for the injured men to be liquidated and that they were

 4     driven away, as well as vehicle log records that the car assigned to

 5     Popovic had travelled from Vlasenica to Zvornik.  Judgement 1154 and

 6     1155.

 7             The Chamber also found he had been involved with and present

 8     during the executions of prisoners at Bisina.  It concluded that his

 9     presence at the Bisina execution site and his participation in the

10     reburial operation in September of 1995 corroborated his participation in

11     the JCE to murder.  Judgement 1161 and 1166.

12             Your Honours, in paragraphs 84, 88, 93 to 97, and 232 to 238 of

13     the Prosecution response brief, we address Popovic's arguments

14     challenging the conclusion that he and the security branch played a key

15     role in organising and directing the murder operation.  Your Honours,

16     Popovic was not a powerless security officer with no authority and no

17     access to personnel or resources, as he has been arguing both at trial

18     and now on appeal.  On the contrary, he had a major coordinating role in

19     realising the murder plan.  He was ubiquitous, as the Trial Chamber found

20     at judgement 1179, in particular in the Zvornik area during the mass

21     executions from 14 to 16 July, as well as thereafter.  The Chamber

22     properly assessed his role as security branch officer, along with

23     evidence clearly demonstrating that together with Beara, he obtained

24     access to resources and personnel through the Drina Corps brigades in

25     order to carry out the detention, execution and burial of thousands of

Page 144

 1     prisoners.

 2             Your Honours, I now turn to your question.

 3             In section 5 of our response brief, at paragraphs 272 to 317, we

 4     have provided the response to all the Defence challenges regarding the

 5     Chamber's evaluation of the forensic and DNA evidence, including the

 6     challenges repeated here today.  We rely on those responses -- on that

 7     response.

 8             Now, as one of his challenges to the number of victims, Popovic

 9     has argued that the Trial Chamber erred in convicting him for the

10     execution of more than 1.000 males at Kozluk on 15 July, while the

11     indictment only charged him with killing about 500 Muslim men at that

12     location.  It's at Popovic appeal brief paragraphs 438, 442 to 443, as

13     well as reply at para 132.

14             The first part of your question, Your Honours, invites the

15     parties to discuss the Trial Chamber's interpretation of

16     paragraphs 30.8.1 and 30.10 of the indictment at footnote 1839 of the

17     trial judgement; and second, we are invited to discuss whether Popovic

18     was convicted for any killings in excess of those pleaded in these two

19     provisions.

20             Your Honours, the short answer to both parts of your question is

21     that the indictment provided Popovic with notice that there were

22     approximately 1.000 victims at Kozluk.  Popovic was therefore not

23     convicted for killings in excess of those pleaded.

24             To provide a bit more detail to the first part of your question,

25     Your Honours, the Trial Chamber at footnote 1839 noted as follows:

Page 145

 1             "The indictment alleges that approximately 500 Bosnian Muslim

 2     males were detained in the Rocevic school and then transported to a site

 3     near Kozluk and executed.  Indictment paras 30.8.1 and 30.10.  The Trial

 4     Chamber notes that the victims detained at Rocevic school are the same

 5     killed near Kozluk."

 6             Your Honours, based on a plain reading of the indictment, the two

 7     paragraphs referred to by the Trial Chamber in this footnote are

 8     cumulative.  They are not overlapping.  Specifically, paragraph 30.8.1

 9     alleges that approximately 500 Rocevic prisoners were taken to Kozluk and

10     executed, while paragraph 30.10 alleges that about 500 other

11     Srebrenica-related prisoners captured from the column or separated at

12     Potocari were executed at Kozluk.

13             Read together, these two paragraphs put Popovic on notice that

14     there were approximately 1.000 victims at Kozluk.  The Prosecution

15     pre-trial brief, at paragraphs 83 to 87, also did the same.

16             In any event, Your Honours, even though the trial footnote --

17     Trial Chamber footnote might be a little ambiguous, it is clear that the

18     Trial Chamber understood what the Prosecution was charging because at

19     paragraph 794(11), it found that:  "On 15 July, over 1.000 Bosnian

20     Muslims were killed at Kozluk."  It did so referring to paragraphs 517 to

21     524, and it based its conclusion upon eyewitness and forensic evidence

22     available at trial.

23             As a result, to answer your second question, Your Honours,

24     Popovic was not convicted for any killings in excess of those pleaded in

25     these two provisions.

Page 146

 1             In any event, Your Honours, the indictment has at all times

 2     provided Popovic with fair notice of the large scale of allegations that

 3     he faced.  Since the earliest form of the indictment against Popovic, he

 4     has been on notice that he was charged for his participation in the joint

 5     criminal enterprise to murder which resulted in the summary execution of

 6     over 7.000 Bosnian Muslim men and boys from Srebrenica.  This is at

 7     indictment paragraphs 25, 27 to 29, and 37.  At no point in the

 8     Prosecution's case did this total figure of alleged victims change.

 9             This concludes my submissions, Your Honours.  Unless you have any

10     questions, my colleague Ms. Najwa Nabti will conclude our response to

11     Popovic's appeal challenges.

12             JUDGE ROBINSON:  Thank you very much.

13             MS. NABTI:  Good afternoon, Your Honours.  My name is

14     Najwa Nabti, and I will address Popovic's arguments regarding his

15     conviction for genocide.

16             Popovic has challenged the Trial Chamber's finding that he had

17     genocidal intent, as well as its general finding that a genocide was

18     committed.  I will address his arguments in turn, starting with his own

19     genocidal intent.

20             As you have just heard, Popovic knew about and participated

21     vigorously in almost every step of the murder operation, from the

22     formulation of the plan to the large-scale killings and burials.  At

23     Orahovac, Rocevic school and Pilica alone, Popovic participated in the

24     killing of thousands of Bosnian Muslims, securing executioners, fuel,

25     vehicles, whatever was needed to get the job done.  Popovic's own words,

Page 147

 1     the systematic exclusive targeting of Bosnian Muslims, and his

 2     destructive and discriminatory acts against them provided further

 3     evidence revealing his state of mind.  These findings are at the trial

 4     judgement paragraphs 178 to 180.  On this evidence, the Chamber was fully

 5     justified in finding that Popovic intended to destroy the Muslim

 6     population of Eastern Bosnia.  Given the strength of the Trial Chamber's

 7     conclusion, it is no surprise that Popovic challenges the underlying

 8     findings throughout his brief.

 9             My colleagues have already addressed the reasonableness of those

10     findings and they are fully canvassed in our brief.

11             Popovic does not challenge the Trial Chamber's reliance on such

12     factors as the scale of the atrocities, or the intent to commit the

13     underlying acts, to infer genocidal intent, nor could he, as appellate

14     jurisprudence clearly supports the Trial Chamber's approach.  See the

15     trial judgement paragraph 823 with citations to Jelisic, Blagojevic and

16     Jokic, and the Krstic appeal judgements.  The Trial Chamber's conclusion

17     on Popovic's genocidal intent is well-founded and should be affirmed.

18             In addition to its finding on Popovic's liability for genocide,

19     the Chamber found that a genocide occurred.  Popovic's challenges to this

20     finding primarily pertain to the inference that the mass killings were

21     perpetrated with genocidal intent.  Since Popovic was convicted of

22     committing genocide as a JCE member, proving the genocidal intent of the

23     physical perpetrators of the underlying acts was not required, and so

24     this finding was not a necessary pillar to his conviction as he suggests.

25     This has been recently confirmed by the Appeals Chamber in its

Page 148

 1     Rule 98 bis judgement in Karadzic at paragraph 79.  Nonetheless, the

 2     Trial Chamber's findings that there was a -- that a genocide was -- had

 3     occurred were eminently reasonable.

 4             The Trial Chamber found that, in a matter of days, members of the

 5     Bosnian Serb forces systematically rounded up, detained, transported,

 6     executed, and buried thousands of Muslim men and boys.  As the Defence

 7     points out, the Trial Chamber relied on significant coordination and the

 8     vast process entailed by this operation, but this only formed part of the

 9     Trial Chamber's analysis, which appears at paragraphs 856 to 863, leading

10     to its conclusion that:

11             "The scale and nature of the murder operation, the targeting of

12     the victims, the systematic and organised manner in which it was carried

13     out, and the plain intention to eliminate every Bosnian Muslim male who

14     was captured or surrendered proves beyond reasonable doubt that members

15     of the Bosnian Serb forces, including members of the VRS ... and security

16     branch, intended to destroy the Muslims of Eastern Bosnia as a group."

17             In addition, the Trial Chamber drew further support for genocidal

18     intent from other culpable acts systematically directed against the same

19     group, in particular the frenzied efforts to forcibly remove the

20     remainder of the population while the male members of the community were

21     targeted for murder.  That's at paragraph 862.

22             Popovic's claim that the Chamber found that all members of the

23     Bosnian Serb forces committed genocide is unjustified, as it clearly

24     mischaracterises the Trial Chamber's conclusion that genocide was

25     committed by "members of the Bosnian Serb forces, including members of

Page 149

 1     the VRS Main Staff and the VRS security branch, such as Popovic and

 2     Beara ..."  That's at trial judgement paragraph 863.

 3             Popovic also faults the Trial Chamber for declining to specify

 4     which of these members committed genocide.  However, the Appeals Chamber

 5     in Krstic confirmed that the inference of genocidal intent for a

 6     particular atrocity may be -- can be made without attributing that intent

 7     to specified individuals.  That's at the Krstic appeal judgement

 8     paragraphs 34 and 35.

 9             In addition, the Defence answers its own complaint that some

10     others who were involved in the killing, who are not on trial here, have

11     not been convicted of genocide, by pointing out "that the genocidal

12     intent of the perpetrator must be established only on a case-by-case

13     basis."  That's transcript of today's hearing at page 27.  The

14     Trial Chamber did so in this case, with respect to the convictions

15     entered for genocide.

16             With regard to Popovic's remaining challenges, the Trial Chamber

17     has considered and rejected these arguments and its approach is

18     consistent with appellate case law.  Specifically, Popovic argues that

19     for genocidal intent to be inferred, all Bosnian Muslims in Srebrenica

20     would have to be targeted.  He claims that the women, children, the

21     elderly, and the members of the 28th ABiH column, which broke -- division

22     column which broke through to ABiH-held territory were spared.

23             First, the law is clear that killing all members of the group is

24     not required to prove genocidal intent, as "the intent to destroy formed

25     by a perpetrator of genocide will always be limited by the opportunity

Page 150

 1     presented to him."

 2             That's in the Krstic appeal judgement at paragraph 13.

 3             Second, Popovic's arguments ignore the facts.  The Chamber found

 4     that not even a cursory attempt was made to distinguish between civilian

 5     and soldier in separating the Bosnian Muslim males targeted for

 6     execution.  Some children and elderly persons were among those executed.

 7     Indeed, the Trial Chamber heard evidence about the killing of a boy who

 8     pleaded for his life.  They surely were not spared.  Those findings are

 9     in the trial judgement at paragraphs 519, 779, 860, 866, and 990.  And as

10     noted, the frenzied efforts to forcibly remove the remaining population,

11     described today by counsel as the transport of 20 to 30.000 Muslims to

12     safety, provided further support for genocidal intent as other culpable

13     acts systematically directed against the same group.  That's at trial

14     judgement paragraph 862.

15             The Trial Chamber's approach is consistent with the

16     Appeals Chamber's assessments on this issue in Krstic at

17     paragraphs 31 to 33, and Blagojevic and Jokic at paragraph 123.

18             The Trial Chamber also considered and rejected Popovic's argument

19     that executing the thousands of Bosnian Muslim males was in response to

20     any serious military threat they posed.  Those targeted had already

21     surrendered.  Whether or not the column itself was a legitimate military

22     target has nothing to do with the slaughter of the thousands of men and

23     boys in custody.

24             Popovic also misrepresents the fate of the ABiH 28th Division

25     column by suggesting that there was no intent to destroy the men in the

Page 151

 1     column who were ultimately allowed to pass.  There is no question that

 2     Bosnian Serb forces would have killed these men if they were able to.

 3     Bosnian Serb forces attacked the column on 12 and 13 July and induced

 4     thousands to surrender, only to execute them shortly afterwards.  Trial

 5     judgement paragraphs 380 to 383.

 6             The surviving members of the column were only allowed through

 7     when it was determined that blocking them was not feasible.  Trial

 8     judgement paragraphs 551 to 560.

 9             Bosnian Serb forces then scoured the terrain to find those who

10     did not make it through, ensuring "that no Bosnian Muslim male escaped

11     the grasp of the VRS Main Staff and security branch."  That's at trial

12     judgement paragraph 860.

13             The perpetrators of the genocide fully seized the opportunity

14     presented to them after the fall of Srebrenica, killing as many as they

15     could as quickly as they could.  And again, Popovic gets no help from

16     appellate jurisprudence which clearly supports the Trial Chamber's

17     approach, in the Krstic appeal judgement at paragraphs 26 and 27.

18             Finally, Popovic 's arguments ignore the Chamber's findings that

19     Bosnian Serb forces perpetrated genocidal acts against the survivors who

20     suffered profound physical and psychological harm as a result of the

21     murder operation.  In paragraph 30 of his reply brief, Popovic suggests

22     that there was insufficient evidence of the physical and psychological

23     harm to the surviving family members which he equates with "the harm of

24     everyone who has lost his family member or friend under any

25     circumstance."  His claim that "the mental harm suffered by the relatives

Page 152

 1     of the deceased is a natural part of everyday life" is not only repugnant

 2     but is contradicted by the evidence in this case.

 3             The extreme emotional and psychological distress caused by the

 4     taking and killing of thousands of fathers, sons, husbands, and brothers

 5     was evident not only from the Rule 92 bis statements of surviving family

 6     members but also from the testimony of witnesses to the suffering, expert

 7     evidence, and judicially noticed adjudicated facts.  For example,

 8     Rahima Malkic, who fled her village near Srebrenica, recalled the moment

 9     when Serb soldiers took her husband away in Potocari.  He looked at his

10     family and said this was his fate.  She also lost two sons but can't bear

11     the thought of going to identify their bodies.  She said:

12             "I don't want to go back to my village.  I can't take going back

13     through Kravica because that's where my son was killed ... it's hard for

14     me when I see young boys going to school ... I see the pictures of the

15     fall of Srebrenica in my mind ... the pictures of my children come to

16     me."

17             That's at Exhibit P3229.

18             Equally devastating is the evidence of PW-121, whose 14-year-old

19     son was forcibly taken from her at Potocari, which can be found in

20     Exhibit P2226, with further information about her child's tragic fate

21     referenced in the Prosecution's closing arguments at T 34208 to 34210.

22             The suffering inflicted on Rahima Malkic and PW-121 cannot

23     possibly be characterised as mental harm suffered "as a natural part of

24     everyday life."  Rather, their evidence clearly shows that they suffer a

25     grave and long-term disadvantage to their ability to lead a normal and

Page 153

 1     constructive life.  And yet, it is not unique.  Thousands of Bosnian

 2     Muslims have suffered such a loss as a result of the mass killings, as

 3     described in the trial judgement at paragraphs 846 and 847.

 4             Others who have borne witness to their suffering came to testify.

 5     UN Military Observer Colonel Kingori described the tearful and terrifying

 6     separation process at Potocari, when men and boys were forcibly taken

 7     from their families.  That's at transcript pages 19251 to 19257.

 8             UNPROFOR Civil Affairs Officer Edward Joseph testified that the

 9     overwhelming source of distress for the refugees who arrived in Tuzla

10     around 12 or 13 July 1995 "was their concern about the fate of their men,

11     be they husbands, fathers, sons or brothers, whom they had left behind."

12     Transcript pages 14151 to 14152.

13             The serious physical and mental harm inflicted as a result of the

14     killings is further supported by expert evidence in Exhibit P2228 and by

15     adjudicated facts 505 to 513.

16             On all the evidence, Your Honours, Popovic was rightly convicted

17     of committing genocide against the Muslims of Eastern Bosnia by killing

18     members of the group and inflicting serious bodily and mental harm on the

19     victims, their families and survivors.  He was at the heart of the

20     operation that accomplished the violent eradication of thousands of

21     Bosnian Muslim men and boys in only a few days' time, and inflicted

22     emotional and physical scars on the surviving population that will

23     persist for generations.

24             Your Honours should affirm his conviction and life sentence.

25             Unless Your Honours have any questions, that concludes the


Page 154

 1     Prosecution's submissions.

 2             JUDGE ROBINSON:  I thank you very much.  It appears to be

 3     convenient for us to take the break now, and resume at -- we will take

 4     the break for 25 minutes, a Solomonic decision.

 5                           --- Break taken at 4.10 p.m.

 6                           --- On resuming at 4.34 p.m.

 7             JUDGE ROBINSON:  Yes, counsel, for the reply?

 8             MR. ZIVANOVIC:  Thank you, Mr. President.

 9             A complex matrix of findings as mentioned by the Prosecution does

10     not immunise the judgement from assessment on appeal.  Contrary to the

11     Prosecution assertion, these key evidentiary and factual findings

12     highlighted in the appeal when undermined no longer sustain Popovic's

13     conviction.

14             The Defence submits that the standards in the jurisprudence

15     relied on by the Prosecution in the beginning of its submissions wholly

16     apply to this situation.  Indeed, it is the Defence submission that it is

17     dubious and the Trial Chamber managed to find Momir Nikolic and PW-168,

18     in particular, to be credible on the crucial matters of fact that led to

19     Popovic's conviction for genocide and where no direct corroboration was

20     offered.

21             The executions described in that event are indeed tragic, but it

22     is notable how even that handful of survivors or executioners at the

23     killing sites were entirely unable to identify Popovic as present.  The

24     Defence would encourage Your Honours not to abide by the Prosecution's

25     efforts to affect your emotions in lieu of your reason in making your

Page 155

 1     decision.

 2             The Prosecution's assertion that all the evidence was carefully

 3     reviewed is not apparent in respect of the challenged portion of the

 4     judgement indicated today and in the brief where it was argued that the

 5     Chamber had completely disregarded the evidence.

 6             This is especially true where Popovic has argued that no mention

 7     of major discrepancies were made, or where they were unfairly diminished

 8     to the prejudice of the accused despite the major contradictions of the

 9     evidence.  For example, the appeal brief, paragraph 301, judgement

10     footnote 1772.  There is a serious danger where findings on the totality

11     of mutual reinforcing pieces of evidence, as stated by the Prosecution at

12     page 79 today, are molded with a goal of securing conviction rather than

13     justice.

14             The Prosecution's citation to the trial judgement at length

15     presumes the impugned judgement's legitimacy as though it were an

16     infallible record of fact.  Indeed, the Prosecution can cite only

17     indirect or circumstantial evidence to corroborate the most extensively

18     challenged findings of fact in the appeal, ones that link Popovic

19     directly to responsibility or command at execution sites.

20             As explained in the appeal brief, the Trial Chamber applied

21     obvious double-standards to witnesses depending on the incriminating

22     value of their account.  This is particularly true in respect of Kosoric,

23     who provided substantially different evidence and who, as a witness, was

24     severely disadvantaged in comparison to Momir Nikolic.  The Trial Chamber

25     therefore failed to apply the in dubio pro reo standard to prejudice of

Page 156

 1     Mr. Popovic.

 2             Momir Nikolic was found by the Chamber to be only partially

 3     credible.  It is worth repeating that this credibility assessment was

 4     selective.  Only the most incriminating accounts were believed, whereas

 5     other accounts were not accepted without corroboration.  In this way, the

 6     Chamber deviated from its own standard for its assessment of witnesses

 7     noted at paragraph 53 of the judgement.

 8             Reliability of the statement is not bolstered by Momir Nikolic's

 9     self-incrimination relating to the Hotel Fontana meeting.  Specifically,

10     Momir Nikolic's plea agreement was only accepted upon his addition of

11     this account to his testimony, implying that he had a strong incentive to

12     incriminate himself further.

13             The Defence also submits that the Trial Chamber erred in relying

14     on post hoc evidence to support major factual findings.  It could be seen

15     in appeal brief paragraphs 125, 126, and 316, and 319.  This was by

16     definition unreasonable.

17             In respect of Your Honours' question, the Prosecution

18     misrepresents the notice of the cause of killings.  I will quote

19     footnote 1839 for Your Honours:

20             "The indictment alleges that approximately 500 Bosnian Muslim

21     males were detained in Rocevic school and then transported to a site near

22     Kozluk and executed."  It is in the indictment paragraphs 30.8.1 and

23     30.10.  "The Trial Chamber notes that the victims detained at Rocevic

24     school are the same killed near Kozluk."

25             The Prosecution argued that Popovic erroneously cited only one

Page 157

 1     paragraph of the indictment as relevant to the Kozluk executions, ignored

 2     the related allegations concerning the Rocevic school, where

 3     approximately 500 Bosnian Muslim males were detained before being

 4     executed on the bank of the Drina River near Kozluk on 14 and 15 July,

 5     and that provided sufficient notice.  On the contrary, the Trial Chamber

 6     explicitly noted that the victims detained at Rocevic school were the

 7     same killed near Kozluk.  The indictment charged that 500 men,

 8     footnote 1839, fails to explain its decision to double the murder number

 9     of victims.

10             It is a dangerous and indeed irresponsible precedent to

11     flagrantly - or as the Prosecution conceded at paragraph 83 a little

12     ambiguously - double the number of killings charged or to suggest the

13     death of 500 more people is somehow immaterial or not requiring notice.

14             At transcript page 80, the Prosecution repeats a major

15     translation error that was addressed at length in his brief.  Pandurevic

16     was not told that Popovic would arrive to "sort the matter out."  As

17     noted in Popovic brief at paragraphs 361 through 364, he would come to

18     say "what should be done."  Not to sort the matter out.  There are far

19     more serious implications in the latter than the former.

20             The Prosecution's argument that the Bosnian Serb forces had

21     genocidal intent possesses a dangerous precedent as well to encourage the

22     Appeal Chamber and condone the Trial Chamber's decision to impute

23     genocidal intent onto an entire group of people who have not been

24     identified and who have had no opportunity to confront the evidence or

25     witnesses which allege this.


Page 158

 1             In response to other assertions made by the Prosecution today,

 2     Popovic stands by his submissions in his appeal and reply and they need

 3     not be repeated here.

 4             Thank you.

 5             JUDGE ROBINSON:  Thank you very much.

 6                           [Appeals Chamber confers]

 7             JUDGE ROBINSON:  Yes.  We are going to continue the proceedings,

 8     moving now to the appeal of Mr. Beara, and we'll hear from counsel for

 9     Mr. Beara.

10             Mr. Ostojic, we will stop at 5.15.

11             MR. OSTOJIC:  Thank you, Your Honour.  May it please the Court.

12     Your Honours, again, my name is John Ostojic.  On behalf of Mr. Beara,

13     I'm here with my colleague Norman Sepenuk, and we will be providing the

14     oral submissions to our appellate brief and to try to establish for this

15     Chamber where we believe the Trial Court made several rather significant

16     errors, both legally and in the factual basis of some of the evidence.

17             I'm going to just initially in my opening remarks perhaps give

18     you a road map as to where I think our submissions will lead.  Initially,

19     we were going to start with Mr. Sepenuk addressing from a strictly legal

20     standpoint the issue of genocide.  The issue of genocide and how it

21     relates to Mr. Beara and how it was an erroneous decision by the Court as

22     a matter of law.

23             Following that submission, I will address this Chamber and

24     particularly one item, the JCE 1, to commit murder.  I think when this

25     Chamber -- as our submission will reveal, the Trial Court relied on

Page 159

 1     specifically one piece of evidence that we believe should not have been

 2     relied upon and most definitely there should have been no weight given to

 3     that evidence, specifically the testimony, as I'm sure you've read from

 4     the trial record is -- and from our briefs, is the testimony of a person

 5     called Miroslav Deronjic.  He was submitted as a witness pursuant to

 6     92 quater and we've objected at that time to his evidence being submitted

 7     because it goes strictly and specifically to the acts and conduct of

 8     Mr. Beara.

 9             The Trial Chamber at that time erred, although I'm going to

10     highlight for you are their opinion, when they state that they will with

11     extreme caution or at least with caution examine his testimony and make

12     sure that there is corroborating evidence as to any acts or conversations

13     that Mr. Deronjic would relay to this Chamber.  They failed to do that.

14     They not only failed to keep their promise, they, in fact, did the

15     opposite.  They relied solely on Mr. Deronjic's testimony in order to

16     convict Mr. Beara.  They relied solely on Mr. Deronjic's testimony to

17     find him as a participant in the JCE 1 to commit murder.

18             We believe that the trial record, as my learned colleague

19     Mr. Rogers said, should be examined on the four squares that it is

20     presented to you and not through extraneous or misleading or speculative

21     reasoning.  The Trial Chamber did just that.  They went beyond the four

22     squares to reach conclusions, to reach conclusions that were adverse to

23     Mr. Beara and we believe that it was the convictions that led to

24     Mr. Beara were erroneous by the Trial Chamber.

25             I will in detail address Mr. Deronjic tomorrow on the acts and

Page 160

 1     the conversations that the Trial Chamber relied upon, and I'm just giving

 2     you a brief overview.

 3             Next we are going to talk about the whereabouts of Mr. Beara.

 4     I think, with all due respect to the Trial Chamber, they misunderstood

 5     and certainly misapplied the Defence position with respect to the

 6     whereabouts of Mr. Beara.

 7             We contend and we've established through what we believe was

 8     credible evidence of where Mr. Beara was at certain critical times.  We

 9     will examine for this Chamber not all the witnesses, so we will not go

10     through each witness painstakingly, but we will highlight one witness and

11     that witness that we will highlight for the benefit of my learned

12     colleagues is Mr. Egbers.

13             Mr. Egbers was a UN DutchBat officer.  He was one witness who

14     claims that he saw Mr. Beara at Nova Kasaba on July -- I believe it was

15     the 13th or 14th of 1995.  Who has the burden of proof in this case?

16     According to the Trial Chamber, the Defence does.  There was no

17     corroboration of Mr. Egbers' testimony other than his self-corroborating

18     statements or records.  There was no extrinsic evidence to find that

19     Mr. Beara was at Nova Kasaba.  The Prosecution was required under the law

20     of this jurisprudence to bring in corroborating evidence.  Did they?

21             Before we answer that question, I think perhaps it's more

22     important to note, could they have?  Could the Prosecution have brought

23     in corroborating evidence if they believed it?  They know the answer is

24     yes, for a number of reasons.  One, their own 65 ter witness on their

25     list was a gentleman by the name of Zoran Malinic.  Zoran Malinic

Page 161

 1     purportedly was at this meeting with --

 2             MR. ROGERS:  I don't think it's appropriate to be referring to

 3     evidence outside of the record if it is not in the record as to what it

 4     may have been because it invites the speculation that criticism is being

 5     made of the Trial Chamber and is now inviting to you speculate on what it

 6     might have been.  It's not proper.  If my learned friend thinks that

 7     there is additional evidence that could be brought by 115, he should have

 8     done it.

 9             MR. OSTOJIC:  No.  In fact, that's incorrect and I respectfully

10     disagree.  The evidence by Mr. Egbers identifies Zoran Malinic being at

11     the meeting.  The Prosecution argued in their opening statement, which is

12     part of the record, and in their brief which they cite also both

13     pre-trial and in other manners that Zoran Malinic was present.  But, yes,

14     their fallback argument is that he's probably a Serb, which he was, a

15     member of the VRS --

16             JUDGE ROBINSON:  Before you proceed, you had earlier said,

17     according to the Trial Chamber, the Defence has the burden of proof.  Do

18     you mean by that that the Trial Chamber explicitly said that or do you

19     mean that that is something that can be fairly deduced from the record?

20             MR. OSTOJIC:  Thank you, Your Honour.  By no means would I ever

21     suggest that they expressly stated that.  It's clearly implicit when they

22     took the evidence of Mr. Egbers and failed to understand why and who had

23     the burden of proof to corroborate that evidence.  So indeed it was not

24     expressly stated by the Trial Chamber, but we believe just looking at

25     that evidence which we'll share tomorrow that, in fact, they did shift

Page 162

 1     the burden of proof.  And instead of suggesting that the Prosecution

 2     bring corroborating evidence, they simply relied on that evidence and

 3     dismissed the Defence evidence on that issue.

 4             JUDGE ROBINSON:  Speaking personally, I would prefer if you,

 5     rather than give the overview, give us your submissions.

 6             MR. OSTOJIC:  Well, it's quite lengthy but --

 7             JUDGE ROBINSON:  Because I don't want to you spend the time

 8     giving us an overview, the remaining time, we want to hear your

 9     submissions.

10             MR. OSTOJIC:  Well, this is part of my submission.  Within the

11     submission I did have this part of the overview, so I am highlighting it

12     and then we are going to go into detail on it but --

13             JUDGE ROBINSON:  Well, it's your time.

14             MR. OSTOJIC:  The Prosecution not only had the opportunity and

15     the burden of proof to call --

16                           [Appeals Chamber confers]

17             JUDGE SEKULE:  I just wanted to understand so that I can follow

18     on my part.  Your learned colleague said that that wasn't -- the issue

19     that you addressed previously was not in evidence and you make -- you did

20     give a response to that.  I want to know that kind -- that response, is

21     it your submission that that evidence that you referred to is actually

22     into evidence?  I just want to understand that aspect.  Arising from what

23     was your learned colleague's submissions.  If you may clarify, I just

24     simply want to understand exactly what is the position.

25             MR. OSTOJIC:  Thank you, Your Honour.  To clarify, is it

Page 163

 1     evidence, I suggest that it is and it's found in the testimony of

 2     Mr. Egbers, number 1.  It's part of the trial record below as the briefs

 3     are, as counsel cited to his initial pre-trial brief.  That evidence is

 4     at least those two instances.  It's also present in our request to try to

 5     bring the witness but I don't believe that was marked as evidence.  But I

 6     believe that in at least those two separate occasions, that evidence was

 7     presented to the Trial Chamber.  And also, if recollection serves me

 8     well, I believe it was also addressed in their opening statements.

 9             JUDGE POCAR:  Counsel, can you please give us, for our -- the

10     references in the trial record as to that?

11             MR. OSTOJIC:  Your Honour, I will be able to do that tomorrow

12     morning, and I apologise for that.  I don't want to give you the wrong

13     cite.  I will prepare that and make sure you have that first thing in the

14     morning.

15             JUDGE POCAR:  Thank you, counsel.

16             MR. OSTOJIC:  So as I've stated, we will talk about how the

17     Trial Chamber erred as a matter of law and as a matter of fact, both as

18     to Mr. Deronjic, and highlight the second part as a matter of fact with

19     respect to Mr. Egbers and the evidence about Mr. Beara's whereabouts.

20             Next, we will talk about or we expect to discuss with this

21     Chamber another witness, a gentleman by the name -- or another person by

22     the name of Milos Tomovic, and that goes to whereabouts also.  The

23     Trial Chamber misunderstood the argument that we had with Milos Tomovic.

24     He was a witness that the Prosecution was expecting to call.  It was a

25     witness the Prosecution actually took, I think, twice met with him and

Page 164

 1     got his statement, and ultimately it was a witness that the Prosecution

 2     interviewed without the assistance of counsel, without him being sworn,

 3     it was at that, and we tried to submit that to the Trial Chamber, and

 4     part of that evidence was in -- specifically introduced through the

 5     cross-examination of Mr. Pandurevic.  In those questionings by the

 6     Prosecution, they expressly asked Mr. Tomovic, by prefacing the question,

 7     "We know at that time," namely, the 13th through the 15th, "that Beara

 8     was in Belgrade."  The Trial Chamber failed to recognise the importance

 9     and significance of that.

10             Who was Milos Tomovic?  And why is he important?  He was

11     Mr. Beara's driver.  He was a critical witness that could substantiate or

12     verify either the Prosecution's case or the Defence case.  Was it our

13     burden of proof or the Prosecution's?  They chose not to call him.

14             We'll further discuss portions of our Defence case that I believe

15     the Trial Chamber erroneously summarily dismissed without giving a

16     reasoned opinion.  The Trial Chamber's conclusions with respect to the

17     Defence case did not meet the requirements of a reasoned opinion.

18     Compounding this lack of reasoning are the Trial Chamber's inconsistent

19     and contradictory findings as they relate to Mr. Beara.

20             Ultimately, and early on we will address the question that the

21     Court raised with us, specifically the necessary link with respect to

22     Jadar River and the Trnovo killings.  Our next piece or portion of our

23     argument is going to relate to seeking the truth that the Tribunal and

24     all of us have an opportunity to try to the best of our abilities to get

25     to the truth.

Page 165

 1             We will highlight several pieces of evidence that have been

 2     introduced in this case, specifically when we talk about the victims,

 3     when we talk about the numbers on this case, not to be cold, not to be

 4     dismissive of the terrible things that occurred to those people and those

 5     families, a UN officer, Mr. Egbers, and I think my learned colleague

 6     mentioned him -- I'm sorry, not Mr. Egbers, Mr. Ed Joseph, excuse me.  He

 7     mentions in his report early on that his observation was that

 8     3.000 Bosnian Muslim men were killed in legitimate combat engagements,

 9     mines, and during other activities.  The Trial Chamber simply ignores

10     that, dismisses that evidence as if it's non-existent.  It was not a

11     report created or generated by a Bosnian Serb.  It was indeed from a

12     third party, a UN staff officer.

13             So when we are seeking the truth, we should examine all the

14     evidence and try to determine was it 2.000, 5.000 or 7.000 that

15     unfortunately suffered the fate in July of 1995.

16             Other what I consider to be items that the Court simply ignored:

17     When the Court balanced Mr. Beara's purported words, it cautiously,

18     methodically stated that Mr. Beara was using code, didn't want people to

19     know.  When we presented the evidence of Mr. Vasic, Dragomir Vasic, who

20     was the head of the MUP, the police, in his report he essentially says

21     the VRS are no longer in charge of these prisoners and essentially he

22     claims that he's going to liquidate 5.000 of them.  In the evidence of

23     Mr. Butler, his response when confronted on cross-examination as to who

24     bore the responsibility to detain and who ultimately stated expressly

25     directly that they were going to liquidate and kill those people,

Page 166

 1     Mr. Butler claims he didn't mean it, as if he knew.  The Trial Chamber

 2     ignored that evidence which points directly in a different direction than

 3     it does to Mr. Beara.

 4             We'll also talk about what I've coined exculpatory evidence.

 5     There is two things.  We have mentioned one with Milos Tomovic,

 6     Mr. Beara's driver, but the other significant piece of evidence that

 7     I think we should address is what we coined previously as the Croat

 8     intercept.

 9             Mr. Beara was being overheard in certain conversations.  This one

10     intercept in the middle of what was the worst crimes that had occurred

11     since World War II, Mr. Beara does not discuss killings, in code or

12     otherwise.  He clearly says:  Move the men to Batkovici camp, which was a

13     known, recognised detention centre, not to Pilica, not to some other area

14     or other school, but to the detention centre where everyone expected them

15     to go.  The Trial Chamber surprisingly, without any reasoning behind it,

16     simply stated this was code again.  Mr. Beara knew he was being listened

17     to.  Mr. Beara knew that someone was going to overhear him so he misled

18     everyone by giving this Croat intercept.  If that's true, and we accept

19     that logic, how then can they claim the other intercepts point towards

20     Mr. Beara for either being a participant in the JCE 1 or having any

21     genocidal intent?

22             Finally, with your permission, we will address sentencing.  The

23     two aspects of it we believe that the Court, the Trial Chamber, legally

24     erred or erred as a matter of law, I should say, excuse me, when it

25     failed to apply the law once it recognised that there existed mitigating

Page 167

 1     circumstances.  It recognised three, but at the end of the day it gave

 2     Mr. Beara the harshest sentence available.  Likewise, the Trial Chamber

 3     erred in fact because they didn't give sufficient weight to those

 4     mitigating circumstances, giving only limited or what they called nominal

 5     weight to those mitigating circumstances.

 6             Finally, we will address the aggravating factor where the Court

 7     we believe failed as a matter of law and only -- erred as a matter of law

 8     and only utilised the same underlying facts that they convicted him to

 9     suggest that they were an aggravation and thereby sentenced him too

10     harshly.

11             The Trial Chamber has indeed applied the wrong legal standard in

12     assessing Ljubisa Beara's contribution to the JCE.

13             I believe that it might be a good time to stop, with your

14     permission, so that we don't overlap.  And I'll tomorrow present specific

15     details and address the questions that were raised today.

16             MR. ROGERS:  Your Honours, before you rise, may I just make one

17     small point relating to my concern about Mr. Malinic.  So that it's clear

18     what my concern is because it may arise tomorrow if there is reference to

19     other witnesses that did not testify.  My concern is not that there may

20     have been mentioned to Zoran Malinic as being someone who may have been

21     present but more to what he might have been able to say, which is

22     speculative.  Obviously if there had been interviews or it was known to

23     the Defence that there were interviews relating to the individual, that's

24     one thing, but it's not appropriate to refer, and I don't know whether my

25     learned friend was going to, to refer to anything that that witness may

Page 168

 1     have said because that is not in the record.  And that was my concern,

 2     and just so we are all clear about what the nature of my concern is,

 3     I hope that's now clear.  There shouldn't be reference, speculative

 4     reference about what witnesses who did not testify might have said.

 5     That's inappropriate.

 6             MR. OSTOJIC:  If I could respond.

 7             JUDGE ROBINSON:  Yes.  That's --

 8             MR. OSTOJIC:  I appreciate my learned colleague trying to assist

 9     us in this manner, but I think he either misunderstood me or perhaps

10     I wasn't eloquent in the rush to try to get it done.  We are not going to

11     suggest what Mr. Malinic said.  We are suggesting that if there is

12     evidence with respect to the whereabouts of Mr. Beara, there should be

13     some corroboration of each of those witnesses and I know that they would

14     rather have a quantity, and they talk about quantity more than quality,

15     but I suggest to this Chamber that you should look at each witness and

16     determine from that each witness whether there was corroborating

17     evidence.

18             With respect to Mr. Egbers, the Prosecution had the burden of

19     proof, they had the opportunity, they interviewed him, they know what he

20     said, they identified him, they did not bring him in court.  The

21     inference that I can draw is that he would have been adverse to them and

22     that's accurate.  The inference the Trial Chamber should have drawn was

23     that he was going to be inconsistent and would not corroborate his

24     testimony, but I do appreciate my learned friend's guidance on that.

25             JUDGE ROBINSON:  Well, let us wait until tomorrow to see what is

Page 169

 1     your precise submission, and what, if any, is the precise response from

 2     opposing counsel, though I should encourage the parties to allow the

 3     appeal to proceed as quickly as possible and with the least interruption.

 4     I'm not accustomed to appeals being conducted in a manner where there are

 5     objections.  It looks more like a trial.  That I'm accustomed to.  So let

 6     us try to proceed as smoothly and as quickly as possible tomorrow, with

 7     as little interruption as possible.

 8             Thank you.  We are adjourned.

 9                           --- Whereupon the hearing adjourned at 5.12 p.m.,

10                           to be reconvened on Tuesday, the 3rd day of

11                           December, 2013, at 10.00 a.m.