131202ED

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-à-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 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

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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

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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

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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.