Tribunal Criminal Tribunal for the Former Yugoslavia

Page 20250

 1                           Wednesday, 30 January 2013

 2                           [Stanisic Defence Closing Statement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.21 p.m.

 6             JUDGE ORIE:  Good afternoon to everyone.

 7             Mr. Registrar, would you please call the case.

 8             THE REGISTRAR:  Good afternoon, Your Honours.

 9             This is the case IT-03-69-T, The Prosecutor versus

10     Jovica Stanisic and Franko Simatovic.

11             JUDGE ORIE:  Thank you, Mr. Registrar.

12             Mr. Jordash, if you're ready, you may start your closing

13     argument.  But Mr. Groome is on his feet.  I don't think he wants to

14     prevent you from doing it, but to raise another matter.

15             MR. GROOME:  Your Honour, it relates to a written document that

16     the Stanisic Defence indicated it intended to hand to the Chamber in

17     file.  Is it -- if it is still their intention to do that I would want to

18     address the Chamber on it.

19             MR. JORDASH:  It is our intention and can I just -- maybe I can

20     shortcut things a little but just indicating what our approach was going

21     to be.

22             We prepared a table which are corrections of the Prosecution's

23     closing brief, which include such things as miscitations and failures to

24     put before Your Honours the witness's retractions, and so on.  It is not,

25     we will say, submissions.  It's corrections which are material to a fair

Page 20251

 1     assessment to Mr. Stanisic' criminal responsibility.  What I was hopping

 2     to do -- we sent it to the Prosecution because we understood that it

 3     might be a little controversial, we wanted their position and we were

 4     going to ask Your Honours for some time at the end of the speeches

 5     perhaps tomorrow to argue the point if there was any opposition from

 6     Prosecution.

 7             JUDGE ORIE:  Mr. Groome, Mr. Jordash apparently is suggesting

 8     that we should wait and at a later stage that you have a possibility to

 9     make submissions that Mr. Jordash will further explain.

10             May I take it that the concern is that there is an additional

11     round of argument claimed by the -- or is there anything else involved?

12             MR. GROOME:  No.  And as long as before it is handed to the

13     Chamber that I have a full opportunity to address the Chamber on it.  I'm

14     happy to -- to defer that till the end of the closing submissions.

15             JUDGE ORIE:  Then we proceed as suggested by Mr. Jordash and

16     agreed upon by Mr. Groome.

17             Mr. Jordash, I think you have two and a half hours.  I would

18     split that up in two sessions of 75 minutes.

19             MR. JORDASH:  Thank you very much, Your Honours.

20             JUDGE ORIE:  Yes.  Then please proceed.

21             MR. JORDASH:  Thank you.

22             Today in the main, we will address certain aspects of the

23     Prosecution's closing brief and their approach to this case.

24             Tomorrow, we will address their closing remarks of yesterday.

25             We say Mr. Stanisic should be acquitted of all charges.  He

Page 20252

 1     should walk out of this courtroom as a free man without a stain on his

 2     reputation.

 3             We urge the Court to reject the Prosecution case and allow him to

 4     return to his community, to enjoy the peace that he helped to secure.

 5     The case against him is not even reasonable, let alone proven beyond a

 6     reasonable doubt.

 7             Despite that, we do not suggest it was wrong to prosecute

 8     Mr. Stanisic.  We know that Mr. Stanisic's proximity to the events during

 9     the indictment period raises a degree of suspicion.  But we submit that

10     this trial has amply demonstrated that that suspicion tells us little

11     other than Mr. Stanisic was the Serbian chief of security in a time of

12     war.  It was impossible to be an effective chief of State Security during

13     a bloody civil war without being proximate to the events.  A skilled

14     prosecutor and a handful of self-serving witnesses can use that fact to

15     raise a prima facie case, but strain as they might, that suspicion cannot

16     be transformed to proof beyond a reasonable doubt.  The evidence is just

17     too equivocal, too unreliable, and too absent on critical issues to

18     discharge that burden of proof.

19             In 1991, Mr. Stanisic was an assistant in the State Security of

20     Serbia, and from 1992 to 1998, he was the head.  Of course, he was

21     involved in the war.  Of course, he was not without influence.  Of

22     course, he attended meetings with many of the critical players, including

23     Milosevic, Martic, Babic, Karadzic, Mladic, and so on.  Of course, he

24     could not publicly express his disagreement with government policy.  Of

25     course, in meetings he may have had to align himself with aspects of the

Page 20253

 1     Serbian government policy.  This much we knew from the outset of the

 2     trial.  We know that these facts raised legitimate questions.

 3             But these questions have not been fairly addressed by the

 4     Prosecution in the conduct and closing of their case, nor have the

 5     answers proven a case beyond a reasonable doubt.  Rather than conceding a

 6     single inch of this extravagant case the Prosecution pushed on, claiming

 7     that all aspects of its case have been proven beyond a reasonable doubt.

 8     As we shall argue in these closing remarks, by refusing to make a single

 9     concession and otherwise attempting to mask the collapse of their case on

10     pivotal issues, the Prosecution rides over Mr. Stanisic's presumption of

11     innocence.

12             Meeting with Milosevic and other Serbian leaders, providing

13     security related information to the Serbian government, communicating

14     with Karadzic, Martic, and others to obtain the best information, being a

15     channel of communication between the leaders on issues pertaining to the

16     security of Serbia fell squarely within the purview of his job.  The

17     Prosecution must prove that Mr. Stanisic's proximity to the leadership

18     and these activities were not in pursuance of his lawful duties and they

19     must prove beyond a reasonable doubt that they were in furtherance of

20     crime.

21             Instead, the Prosecution continues to advance without providing

22     the assistance to the Court on these critical distinctions.  Everything

23     Mr. Stanisic did was in furtherance of crime.  All his DB operatives were

24     criminals.  Every effort he made to secure the security of Serbia was

25     illegitimate, every motive was bad.  He is responsible for all the

Page 20254

 1     supplies, each Serb force and all the paramilitaries in one way or

 2     another.  The Prosecution has long since abandoned the pursuit of a

 3     reasonable case let alone one that allows that Mr. Stanisic had a

 4     legitimate and vital, non-political task that involved the protection of

 5     millions of Serbian citizens.

 6             Serbia required a functioning security system.  It required state

 7     security.  This is the starting point, we suggest, for Your Honours when

 8     one considers the presumption of innocence.  It is not enough to point at

 9     presence in the field or other similar evidence consistent with the state

10     security's tasks and with a wink and a nod urge Your Honours to conclude

11     that these legitimate activities must have been a cover for something

12     else.

13             Of course Mr. Stanisic could have resigned his job.  He would

14     have avoided the challenges of this criminal trial that have disrupted

15     his life, maligned his reputation and undermined his health, but that

16     would have been to take an easy road.  And we say as forcefully as we

17     can:  Remaining in his job was the fit and proper and principled thing to

18     do.  The war was not his priority but it was his concern.  And as we

19     shall outline over the next two and a half hours, in a time of madness

20     and ethnic hatred he stood as one of the few voices of reason.

21             We say the evidence shows he has never been a nationalists.  He

22     has never hated non-Serbs or believed in the superiority of Serbs.  He

23     has never believed in power for power's sake.  At a time when leaders on

24     all sides were marching to war, he, alone of all the leaders, reached out

25     to the international community to assist them to bring this terrible

Page 20255

 1     conflict to an end.  From the outset he did not even believe it was

 2     possible to keep Yugoslavia together, let alone create a Greater Serbia.

 3     He does believe in a Greater Serbia, but knows that's not about land or

 4     territory but about people, values, and being a member of a progressive

 5     international community.  The evidence shows this to be true, and the

 6     Prosecution has failed to prove otherwise.

 7             As we note at paragraph 1258 of our closing brief, joint criminal

 8     enterprise is not an open-ended concept that permits convictions based on

 9     guilt by association or by otherwise collectivising culpability.  Proof

10     of the significance of the accused's contribution is required to prove

11     that the accused shared the intent to pursue the crimes and the criminal

12     purpose.

13             That requires holding tight to fundamental trial principles, the

14     careful sifting of evidence and prudent application of the burden of

15     proof.  Unfortunately, the Prosecution has abandoned these fundamentals.

16     Having watched over the Defence phase of this trial, the Prosecution

17     justify the admission of an unprecedented amount of new evidence on the

18     alter of contextualization.  One might have expected that their final

19     submissions would have been meticulous in ensuring that Your Honours have

20     the salient evidence brought to your attention.  On the contrary, we

21     submit, the Prosecution's final brief does everything it can to avoid the

22     totality of the evidence and the inconvenience of fact and truth.

23             As slide 2 shows or outlines, this closing speech will be divided

24     into three parts.  If we could turn to that now.  Part 1 will discuss the

25     thematic problems inherent in the Prosecution's approach to the

Page 20256

 1     individual liability of Mr. Stanisic.  In this part, we will address the

 2     ways in which the Prosecution's approach seeks to reverse the burden and

 3     lower the standard of proof.  This part of the speech is supplemented by

 4     the table, which we discussed a moment ago.

 5             To ask a man -- sorry.  To ask a Court to remove a man's liberty

 6     for the rest of his life is an act of utmost solemnity.  To do so without

 7     the accurate recitation of evidence or a reasonable approach to the facts

 8     will not enhance the reputation of this Tribunal.

 9             Part 2 of the speech will address the fundamental premise of the

10     Prosecution's case against Mr. Stanisic that he was the principal

11     co-ordinator or channel of communication between Milosevic, Martic,

12     Babic, Hadzic, and Karadzic.  According to paragraph 46 of the

13     Prosecution's pre-trial brief, Stanisic was Milosevic's number 2.  In

14     order to fulfil this function he is alleged to have co-ordinated the

15     crimes with these regional leaders.  This is how the theory goes.  He

16     managed to exert such authority over the military event, deploy Arkan

17     into the SBWS and elsewhere, deploy the Red Berets, he provided, it is

18     alleged, significant assistance to the war effort, deploy the Skorpions,

19     plan the Vukovar operations, and so on and so forth.

20             We will demonstrate how the evidence has fallen manifestly short

21     of even proving this originating premise.

22             Part 3 of the speech will focus very briefly on Mr. Stanisic as a

23     man and as a professional.  Despite the layperson's belief, because that

24     is what it is, that in times of horrific crimes all those in leadership

25     positions must be responsible.  The evidence shows that it was possible

Page 20257

 1     to remain in situ as the head of state of security, swim against the tide

 2     and help in often intangible ways to ameliorate the pain and suffering.

 3     Of course, with some actions this is easily demonstrated.  Negotiating

 4     the release of the UNPROFOR hostages in 1995, the rescue of the French

 5     pilot, these are obvious examples of good that can be done in the midst

 6     of terrible crimes.  Less obvious but no less important are the

 7     incremental steps that Stanisic took that -- that paved the way for a

 8     more secure Serbia or the effort spent calming the fevered mind of the

 9     extremists such as Babic or Martic, individuals determined to take their

10     people to hell and back.

11             The quiet diplomacy, the late nights studying the actions of

12     criminals, the strategic dismantling of criminal networks, his efforts

13     cajoling Babic to sign the Vance Plan, his secret co-operation with vital

14     international partners from 1991 onwards as the Balkans burnt in ethnic

15     fury.

16             We say he kept his head when all about were losing theirs.  These

17     acts are representative of his professional and personal disposition and

18     pivotal to an assessment of his mens rea.  We submit these acts have been

19     proven and not the allegations or fabrications, the rumours propounded by

20     unreliable Prosecution witnesses.  These are the acts which form the

21     springboard from which Your Honours might judge his true intent.  Part 3

22     covers this subject.

23             If we can turn to slide 3.  This outlines part 1 of the speech.

24             The Prosecution's inappropriate approach to individual criminal

25     responsibility.  Respectfully, we submit, that the Prosecution's approach

Page 20258

 1     in this case is wrong in principle.  It invites the attribution of guilt

 2     by association and supposition.  The case against Stanisic in almost all

 3     respects lacks direct evidence.  The case rests upon a framework of

 4     testimony provided by 92 quater witnesses and an attempt to link Stanisic

 5     to Simatovic and others through circumstantial evidence that consists

 6     largely of multiple hearsay and speculation.

 7             According, the Prosecution appeared to have lapsed into employing

 8     various strategies which we urged the Trial Chamber to examine with care.

 9             If we could turn to slide 4.

10             The first such strategy is asserting that the accused worked in

11     secrecy or in the shadows.  Playing on the Hollywood depiction of the

12     State Security Service and perhaps even a nod to the post September 11th

13     illegal practices of the CIA and MI6, the Prosecution seeks to preserve

14     certain aspects of its JCE case.  Slide 4 provides a selection of

15     illustrations from the Prosecution's brief showing the attempt to conceal

16     the paucity of evidence in support of the case.  This narrative seeks to

17     reduce the evidential burden by asserting without real support that

18     Stanisic's action were undertaken secretly.

19             The last assertion on slide 4 is a good example.  Until the

20     Prosecution's closing brief, the Prosecution had not alleged that

21     Stanisic controlled the Skorpions secretly.  On the contrary, in their

22     2007 pre-trial brief, paragraph 81, the Prosecution alleged, and I quote:

23             "The Skorpions also received ID booklets indicating membership of

24     the DB."

25             Presumably these cards were to be shown publicly to provide them

Page 20259

 1     with the status and privilege of a DB-sponsored unit.

 2             Having watches Stoparic's evidence collapse and JF-024 and JF-029

 3     failed to come up to proof and having belatedly realised that the DB

 4     never had their own ID cards, they now assert that the accused secretly

 5     controlled the Skorpions.  This approach is intellectually circular.  Of

 6     course, Mr. Stanisic acted in secret.  He worked in the

 7     State Security Service.  But as with protective measure in this case or

 8     cases at the ICTY, certain information is denied to the public and for

 9     good reason.  However, as with this trial, we in this room, the

10     stenographers, the translators, the Prosecution, Registry, and Defence

11     are privy to the so-called secret information.  Likewise, in

12     Mr. Stanisic's case, the public may not have known but the insiders knew.

13     If they didn't know, it's because Mr. Stanisic was not acting as the

14     Prosecution allege.

15             Whilst not listed on slide 4, let's consider for a moment the

16     thesis advanced by Babic.  Babic is the only Prosecution witness who gave

17     evidence about the existence of a parallel structure in the Krajina.

18     Babic claimed that the state security controlled that structure and from

19     the end of June 1991 onwards, had overall control of the events at the

20     time, and I quote:

21             "This parallel structure bypassed the de jure civilian and

22     military chain of command, provoked reaction and fear amongst the Serbs

23     which spiralled up to intolerance, violence and essentially war."

24             Babic indirectly supported this methodology by failing to speak

25     out against their methods, according to his plea agreement.  The problem

Page 20260

 1     with that thesis is that there is so little evidence to support it.

 2     Whilst there is evidence, unconvincing evidence, we say, of a leadership

 3     role for Stanisic in the creation of Golubic and the early financing of

 4     the Krajina police, it falls subsequently short of suggesting any

 5     planning or command role that might start to look like a dominant

 6     military or political power structure forcing the furtherance of a

 7     criminal purpose against the will of a prostrate Babic.

 8             The evidence is just not there.  Of course, it was not possible

 9     for Stanisic to control all the military activity in the Krajina without

10     anyone but Babic observing this to be the case.  It is not possible for

11     5.000 men to have been commanded by a DB command unit without anyone

12     knowing this to be true.  Had there been truth to this, the insiders

13     would know.  There lies a misleading contradiction at the heart of the

14     Prosecution case.  At the same time as alleging secrecy they allege that

15     Mr. Stanisic acted completely recklessly.  They allege that he sent blue

16     MUP special purpose trucks into the Krajina with blue registration

17     plates, police registration plates; that he personally met a witness to

18     hand over bags of cash to finance the Krajina police; that he created a

19     paramilitary group with flamboyant red berets that fanned out to the war

20     zones setting up 26 training bases and otherwise forming the backbone of

21     the war effort.

22             At paragraph 17 of their closing brief, they alleged he met

23     routinely with Serb leaders in the Krajina, ensuring their access to JCE

24     members in Belgrade; that he arrived Dalj in mid-September 1991 screaming

25     in public with regard to the failure of the SBWS leadership to liberate

Page 20261

 1     Vukovar; that he along with five other men arranged hundreds and

 2     thousands of tonnes of military hardware through Prodanic and the

 3     association of the Serbs to the RS and the RSK who would meet practically

 4     on a daily basis, and yet the Prosecution alleged that Stanisic worked in

 5     the shadows.

 6             It is it simply not possible to be responsible for delivering

 7     hundreds of thousands of weapons over the indictment period as alleged by

 8     92 quater witness B-179 without people knowing -- without, sorry, five

 9     people knowing, according to B179.  Mladic and Milovanovic would at least

10     have known.  Instead, as we shall see shortly, there is instead a single

11     reference in the Mladic notebooks of a single delivery by Prodanic, the

12     chief of the 8th Administration, and as we can see if we examine that

13     entry those weapons were not for the VRS.  Mladic did not even have

14     Stanisic's phone number until 1995.  Milovanovic met Stanisic in 1993 and

15     thought he was a waiter.  Is it possible to send Dragan or Crnogorac to

16     Brcko in 1991 to train the Bosnian Serb forces as part of a 28 elite

17     trainer project without the authorities in the RS knowing that they were

18     coming and they came from Stanisic and Stanisic wanted it to happen and

19     was working with those VRS members?  In short, when Stanisic or the DB

20     was involved, it was known, not by the public, but by the military

21     intelligence, by those receiving the supplies, by a multitude of

22     mid-ranking men who had to assist with the arrangements.  If the

23     Prosecution after pouring through the 9 million documents in its

24     archives, cannot build a case against Mr. Stanisic it's not because he

25     was working in the shadows.  It's because it's not true.

Page 20262

 1             If we could turn to slide 5.

 2             The second strategy employed the Prosecution to reduce their

 3     evidentiary burden is the invitation to disregard the Appeals Chamber's

 4     requirements that the contour of the criminal purpose be defined and

 5     proven beyond a reasonable doubt.  This includes defining the manner in

 6     which JCE members used perpetrators, the names of these perpetrators, and

 7     how it is alleged that their crimes fall within the common purpose.

 8             As slide 5 indicates, only this will prevent the JCE doctrine

 9     from overreaching on lapsing into guilt by association.

10             In this case, the Prosecution failed to provide the accused with

11     consistent information concerning the case against him.  Principally,

12     regarding the non-JCE members, he is alleged to have used to furthered

13     the common criminal purpose.

14             As we note in the first section of our closing brief, their

15     original case of 28 elite trainers, the core of the unit has collapsed.

16     Instead of admitting this fact, the Prosecution sought to build a new

17     case.

18             If we could turn to slide 6.  Defence has consistently objected

19     to the manner in which the Prosecution attempted to build its new case.

20     Slide 6 contains examples of the Defence complaints regarding the

21     Prosecution's unwillingness to identify the non-JCE members used by

22     Stanisic.

23             If we could turn to slide 7.  Slide 7 contains a snap-shot of the

24     law with regard to the Prosecution's responsibility to provide the names

25     of the perpetrators of crimes.  In short, and as stated at paragraph 32

Page 20263

 1     of the 2009 Karadzic decision listed in the slide:

 2             "The identity of the alleged physical perpetrators constitute

 3     information relevant for the preparation of an effective defence."

 4             The ICTY Prosecution in that case agreed that it should provide

 5     this information to the Defence "in so far as it has" such information.

 6             The Trial Chamber is aware of the Defence concern about this

 7     issue.  Until this point, the Trial Chamber found the Defence argument

 8     that the Prosecution would rely upon individuals introduced in the main

 9     through so-called DB personnel files as speculative.  We submit this is

10     no longer the case.

11             The next slide should not be broadcast to the public.  Could we

12     turn to slide 8, please.

13             As we can see from slide 8, slide 8 contains a list of 48 non-JCE

14     members or physical perpetrators including the core 28 that we began this

15     case with, but we accept the Prosecution provided some notice.

16             The next slide, slide 9 - confidential, please - by contrast

17     contains the list of 60 alleged perpetrators or non-JCE members contained

18     in Annex A of the Prosecution closing that have been introduced into this

19     trial without proper notice.  There are additional alleged perpetrators

20     throughout the brief which are not in Annex A.  Footnote 851 is a good

21     example of alleged perpetrators introduced similarly late.  Rather than

22     admitting the lack of notice, or the need for notice, I should say, like

23     the Karadzic Prosecution team and then attempting as they must to satisfy

24     the Trial Chamber that the Defence has not been prejudiced, the

25     Prosecution have recategorised the issue.  Annex A of the Prosecution

Page 20264

 1     brief is an invitation to the Trial Chamber to disregard the tools test

 2     for a watered-down version revolving around a new significant

 3     relationship threshold.  Or allow me to put that threshold into the logic

 4     of the Prosecution's submissions yesterday.  Your Honours can be

 5     satisfied that Kostic, Kojic and all those who had any relationship with

 6     the DB at any time or any place was at the behest of Mr. Stanisic

 7     because, and I quote:

 8             "Their actions were carried out in accordance with how Stanisic

 9     intended to use the Serbian DB to further the JCE."

10             The Prosecution, they said yesterday, does not need to produce

11     evidence of an order directly from Stanisic in order to meet its burden

12     of proof.  In other words, you can conclude that those with a significant

13     relationship to the DB was acting at Mr. Stanisic's behest because the DB

14     was acting in furtherance of the common purpose and we know that those

15     people were acting in furtherance of the common purpose because the DB

16     was acting in furtherance of the common purpose, a wonderful circularity

17     that removes the need to prove any act by Stanisic other than maintaining

18     his post in the DB.  Annex A should in fact be called:  Index of persons

19     with a significant relationship to the Serbian DB, also known as the

20     28 core.  Plus:  Alleged perpetrators we want to introduce into this

21     trial without proper notice.  Or perhaps something like:  Index of men we

22     want to use to incriminate in some unspecified way but without respecting

23     JCE law.

24             If the Prosecution does not accept this, perhaps in their reply

25     they might enlighten us with what the Chamber should do with persons who

Page 20265

 1     they say had a significant relationship with the DB who had the tools in

 2     that list or who, in the Prosecution's words of yesterday, are other

 3     relevant individuals, their understanding of the applicable law that must

 4     be used to assess whether their crimes, if found proven, were within the

 5     common purpose.

 6             Any actions in furtherance of crimes or crimes committed by men

 7     who have not been defined at the outset as tools with notice provided as

 8     to how they were used and by whom should be, we submit, dismissed from

 9     this case.

10             The third strategy, we submit, employed by the Prosecution is to

11     conflate the DB's intelligence work with crime.

12             It amounts to an assertion that the presence of DB operatives in

13     the field must mean that they were engaged in crime at the behest of the

14     accused.  It is an invitation to the Trial Chamber to require proof from

15     the accused that they were not engaged in crime at his behest, a

16     reversional of proof by another name.

17             The most obvious examples of this attempt to obscure these

18     critical distinctions are with regard to the SBWS crime base.  At

19     paragraphs 49 and 50 of the Prosecution's final brief, and I quote, they

20     say:

21             "Stanisic embedded MUP DB operatives in the SAO SBWS government

22     and other positions throughout the region to further the JCE's common

23     purpose.  MUP DB operatives Kojic and Kostic were particularly

24     instrumental."

25             At paragraph 49 and 50, they suggest:

Page 20266

 1             "Their activities were not limited to collecting intelligence;

 2     rather, Kojic, Kostic and other DB members were involved in 'other

 3     work.'"

 4             What may we ask was this other work?  It has not been, we

 5     suggest, defined and if the tools test is to be satisfied, it must be.

 6             Let us look briefly at Kojic.

 7             Despite not mentioning this alleged perpetrator in the indictment

 8     or pre-trial brief he has played an inordinately large role in this case.

 9     The Prosecution want you to accept that his other work was at the behest

10     of Stanisic, not because they can show this to be the case, not because

11     they can point to a single order or instruction that came from Stanisic,

12     but because he was engaged as an intelligence operative by the DB.

13             If we can turn to slide 10, please.  The dangers of this approach

14     are obvious but worth highlighting.  Slide 10 is a quote by

15     Witness Bogunovic, a Prosecution witness.  Witness Bogunovic demonstrates

16     that even though the Prosecution seek to obscure the critical

17     distinctions between intelligence gathering and other work that is

18     capable of being considered in furtherance of crime, those on the ground

19     did make those distinctions, as the witness noted:

20             "Well, the way I saw it at the time, it seems that people who

21     were appointed," referring to Kojic, "were those who would certainly keep

22     them," authorities in Belgrade, "posted at all times about what we were

23     doing in the government and what was happening in the area."

24             Bogunovic identify the reasonable inference that in the absence

25     of evidence to suggest otherwise raises a reasonable doubt.

Page 20267

 1             If we could turn to slide 11, please.

 2             Slide 11 demonstrated further the dangers of the Prosecution's

 3     approach.  Kojic's other work at this critical time was at the behest of

 4     others such as Simovic, the minister of defence, ordering Kojic

 5     personally in every aspect, it would appear, of his combat military

 6     duties.  The Prosecution must prove, therefore, in each case that

 7     Stanisic, not the likes of Simovic, were passing these types of orders.

 8     It is equally wholly unsatisfactory to take undisputed evidence of

 9     Badza's role and command over Kojic prior to Trnovo and presume,

10     nonetheless, that Kojic must have been acting at the behest of Stanisic.

11     Why?  Because he was employed in the DB.

12             Mr. Martin is under my control during this Court hearing but if

13     he fails to comport himself unprofessionally during his ICTR case, why

14     should I take the blame?

15             If we can turn to slide 12, please.  The fourth strategy which

16     reduces or risks reducing the burden of proof is the Prosecution's

17     attempt to obscure the distinction between institutions and individuals.

18     Of particular concern is the Prosecution's attempt to link Stanisic to

19     every single action of any individual with any DB connection, from

20     Bogdanovic's superior to Simatovic to Badza and so on, without evidence

21     that they're acting at Stanisic's behest.  The Prosecution need to

22     isolate what are the acts of the JCE members, what and who -- sorry.  Who

23     are their tools distinct from Stanisic's contribution and his tools and

24     assist Your Honours in a question of whether, in the end, Stanisic's

25     contribution, if found, was significant.

Page 20268

 1             Slides 13, 14, and 15 are illustrations from the Prosecution's

 2     final brief of this dangerous attempt to collectivise responsibility.

 3     Slide 15 is a particularly -- if we can turn to that, please -- is a

 4     particularly cogent -- it's confidential, sorry, not to be shown to the

 5     public.

 6             Slide 15 is a particularly cogent example of the third and the

 7     fourth strategy combined.  The Prosecution invites you to attribute Milos

 8     arms supplies on behalf of the Serbian MUP to Stanisic on no other basis

 9     than the DB used him since 1991 to gather intelligence, from intelligence

10     to arms supplies, from the MUP to Stanisic and the Serbian DB in a

11     cutting and pasting and conflating exercise that has no place in a

12     criminal trial.

13             Finally, if we can turn to slide 16 perhaps most seriously, the

14     Prosecution have approached the evidence in the ways listed on this slide

15     and more, we say, strategies to fill the gaps where evidence should be,

16     to lead the Chamber down the wrong evidential path.  We accept as noted

17     by the Prosecution yesterday one mistake in our final brief at

18     paragraph 1175.  We accept that the Skorpions only became part of the

19     reserve forces of the SAJ in 1998 or 1999.  That error and perhaps

20     there's a handful of more, we suspect not many, are dwarfed by the

21     Prosecution's errors.  And slide 16 is an outline of some of the most

22     serious.  What does this mean?  Well, we say this:  That the only way to

23     put a coherent case against Mr. Stanisic together is to approach this

24     evidence selectively and engage in selective submissions, perhaps then,

25     the evidence might look reliable.  Unsubstantiated allegations

Page 20269

 1     unreasonable inferences, selective quoting of evidence that includes

 2     failing to bring to Your Honours' attention their own witness'

 3     retractions on critical issues, reliance on evidence that needs

 4     corroboration, using evidence admitted and argued for admission for one

 5     purpose for another, and so on.

 6             Slides 17 through 29 are some representative samples taken from

 7     the Prosecution final brief, demonstrating this unfortunate approach.

 8     Seventeen, 18, 19, 20, 21, 22, and 27 are confidential.  I will not take

 9     Your Honours through them but leave them with Your Honours for

10     consideration later.  Forceful advocacy is one thing.  Ignoring

11     retractions is quite another.  Relying heavily on Mladic's notebook to

12     prove that Stanisic agreed with the goals of the JCE or that he was

13     engaged in supplies of weapons without acknowledging that Mladic is an

14     accomplice, that he has removed Srebrenica from his notebook along with

15     Sarajevo, not acknowledging that there is it evidence to show that he was

16     part of a VRS military security plan to declare all associates of MUP

17     Serbia as extremists and paramilitaries is a curious approach to a fair

18     trial.  Why, may we ask, does the Prosecution suggest that Kovacevic's

19     evidence concerning Trnovo should be corroborated but not that of Mladic,

20     as they said yesterday at transcript 20239?  Well, the reason is obvious.

21     Kovacevic isn't important for this trial.  Mladic, given the paucity of

22     evidence elsewhere, may well be.

23             The Prosecution claimed yesterday that the Stanisic Defence fails

24     to explain how implicating Stanisic and sending Arkan's Men and the

25     Skorpions to Pauk would benefit Mladic.  They are right.  We didn't

Page 20270

 1     explain that.  We thought it was obvious.  It's the same answer to the

 2     question:  Why are Srebrenica and Sarajevo not mentioned in his

 3     notebooks.  It's the same answer to the question:  Why are the

 4     Prosecution using that evidence to draw massive inferences with regard to

 5     Stanisic's command, or alleged command, of these units from 1991 to 1995.

 6             Let me pose, if I may, two questions for the Prosecution in

 7     regard to these notebooks and this particular attempt to implicate

 8     Stanisic in the Skorpions and Arkan.  Milovanovic claimed, and we heard

 9     this yesterday, that Stanisic was more knowledgeable than him in relation

10     to some things in the Podrinje.  Putting aside the fact that it was the

11     time of the Oric's attacks so, of course, the chief of state security

12     made it his business to know what was going on there.  Milovanovic,

13     effectively conceded that he knew more than Stanisic in relation to most

14     things.  We can safely assume that Mladic was equally well-informed.  As

15     we discuss at paragraphs 138 to 143 and 185 to 1090 of our closing brief,

16     the Skorpions had been part of an ongoing rotation of 11th Corps units

17     assisting the VRS and Fikret Abdic during 1994 before Pauk and continuing

18     into Pauk.  So why would Stanisic go to a meeting and tell Mladic what

19     Mladic undoubtedly knew to be true?  That the Skorpions had gone to Pauk

20     but in fact they were part of a 11th Corps rotation.  Or let me put it

21     differently:  Why would Stanisic go to a meeting and tell Mladic what he

22     knew not to be true?  Stanisic saying, I sent the Skorpions, when Mladic

23     must have known this was the 11th Corps.

24             Secondly, why would Stanisic tell Mladic that he had sent men

25     from Erdut, meaning Arkan men, when according to the Prosecution case

Page 20271

 1     Simatovic arranged to collect Arkan's Men from Belgrade.  Stanisic, the

 2     astoundingly well-informed DB chief must have known what almost everyone

 3     else knew:  That Arkan's camp in Erdut closed in late 1993 and only

 4     reopened in May of 1995.  Your Honours will find our arguments developed

 5     in paragraph 1040 of our closing brief.  Arkan's Men were not at Erdut.

 6     This is a clumsy attempt by Mladic to implicate Stanisic and even if it's

 7     not, we suggest the right approach is to look for corroboration and the

 8     Prosecution's attempt to rely upon these notebooks without, is likely to

 9     create the conditions for a mischarge of justice.

10             If we can turn to slide 30, please.  Not to be shown to the

11     public.

12             We submit that the Prosecution of this case has forgotten to

13     approach the case with the degree of solemnity required before asking for

14     a life sentence.  It maintains the obvious myth, we say, that they have

15     adduced evidence to show that Stanisic commanded and supplied Arkan's Men

16     since 1991.  There isn't the evidence.  And what did the Prosecution do?

17     Your Honours can see what they have done in slide 30.  Slide 31 and 32

18     and 33 also show the attempt to conflate evidence that relates to Arkan

19     in 1994 and 1995 and make it appear that it relates to 1991, 1992, and

20     1993.

21             So to conclude part 1 of these closing remarks, the reality is,

22     these strategies would not be needed if the case against Mr. Stanisic

23     wasn't so weak.  It cannot sustain the weight of the allegations.  As

24     part 2 of this speech will further examine, it cannot even start to

25     establish that he was Milosevic's right-hand man or otherwise a

Page 20272

 1     co-ordinator of the political or military activity.  That's the

 2     originating premise of this trial.  The evidence doesn't establish that

 3     he was the paramount co-ordinator of supplies.  It doesn't even establish

 4     that he was a supplier from Belgrade.  We say it does not establish that

 5     he controlled a single paramilitary force.  When viewed fairly and when

 6     the law is properly applied, the Prosecution case establishes nothing

 7     that we did not know.  Stanisic was proximate to the events.  The burden

 8     and standard of proof is not some ethereal concept that cannot be defined

 9     for practical purposes.  The Prosecution's avoidance of inconvenient

10     evidence and the spinning of much of the rest is the antithesis of that

11     standard.  Which requires first a consideration of the totality of the

12     evidence, and second, the exclusion of all reasonable inferences.

13     Mr. Stanisic's legitimate tasks involve proximity to the event.

14     Suspicion arises.  Nothing more has been shown.

15             If I can turn to the second part of the speech.  If we can turn

16     to slide 34.  We want to spend a little time contextualising the case

17     presented in the Prosecution brief.

18             With regard to Mr. Stanisic's alleged role as a channel of

19     communication or facilitator of the JCE, as can be seen at paragraph 187

20     of the Prosecution closing brief, the Prosecution's case is that

21     Mr. Stanisic served as a channel of communication facilitating the JCE

22     members in furtherance of crimes pursuant to the common purpose.  He is

23     said to have co-ordinated the activities between Milosevic and Babic,

24     Milosevic and Hadzic, Milosevic and Martic, Milosevic and Karadzic.

25     Mr. Stanisic was not a military commander or a political leader.  He did

Page 20273

 1     not command the armies or sit in the Supreme Defence council of the FRY

 2     making political decisions.  The expansive role alleged formation,

 3     financing, supply of arms and equipment in the RSK, the SBWS, and Bosnia,

 4     the use and control of special units is premised on him co-ordinating and

 5     facilitating the activities of the political leadership.

 6             Second part of this closing will examine this premise with regard

 7     to each of the crime bases and each of the principle leaders.  The

 8     Prosecution's case, we submit, has not been proven.

 9             With regard to the SAO Krajina, Your Honours will appreciate that

10     the case against Mr. Stanisic is premised on his alleged relationship

11     with Martic and Babic.  This enabled Mr. Stanisic, so the theory goes, to

12     control the military, the paramilitaries, Golubic, the Knindzas, as well

13     as a special unit Arkan and the Skorpions.  We will address first Martic

14     and then Babic.

15             Slide 35 should be confidential, please.

16             Slide 35 sums up the Prosecution's principle allegations

17     concerning Mr. Stanisic's alleged role as co-ordinator of Martic's

18     activities.

19             If Your Honours have a look, very briefly Your Honours will see

20     that the most startling feature of this critical aspect of the case is

21     the almost exclusive reliance on JF-039, one of Martic's hired men.

22     Technically corroboration is not required, but, of course, if

23     Your Honours, we submit, are to respect the presumption of innocence, it

24     is essential in this instances because to establish that Stanisic was the

25     key co-ordinator of all Martic's activities, common sense and legal

Page 20274

 1     principle dictates that more than one man's word is required, especially

 2     JF-039 an accomplice and a man with a reputation as a bully and a thief.

 3             Your Honours will recall, JF-039's account.  We discuss him at

 4     length in our closing brief.  His account is replete with contradictions

 5     on vital issues.  The Prosecution may well respond and say, Well, no, his

 6     evidence is corroborated by Babic.  As we know, Babic claimed in -- that

 7     the relationship between Martic and Stanisic overwhelmed him and let him

 8     into a violation of international law.  JF-039 was relied upon to provide

 9     the detail of this alleged relationship, claiming that he observed

10     Mr. Stanisic co-ordinating all the assistance from the Milosevic

11     government to Martic's nascent police force, there can be little doubt,

12     we submit, that both men perjured themselves.

13             If we can turn to slide 36, which should be confidential, please.

14             I hope Your Honours have the book of slides also, because what we

15     should do, I'd invite Your Honours to do - yes, thank you - is to look at

16     36 and 37 together.  Both Babic and JF-039 contradict each other in the

17     most fundamental manner, demonstrating that the case against Stanisic

18     from the outset, like a house built on sand, lacks any real foundation.

19             In sum, both Babic and JF-039 claimed separately to have

20     participated in the arrangements that led to Milosevic's assistance to

21     Martic's police and the creation and supply of Golubic.  JF-039 claims

22     that the arrangements for creating and supplying the police and creating

23     Golubic were made in January of 1991 in a meeting between Bogdanovic,

24     Stanisic, and Martic.  It should be noted that this was allegedly the

25     second stage, according to JF-039, of the, let's call it, the Golubic

Page 20275

 1     plan, a plan to create paramilitary forces that had already commenced,

 2     according to JF-039, in September of 1990.  Babic, on the other hand,

 3     claims that the arrangements were first made in March of 1991 and Golubic

 4     was not part of those plans.  He was, in fact, surprised when men from

 5     the DB turned up to create Golubic.  So the Prosecution ask you to accept

 6     that Babic, completely unaware of Martic's arrangements with Milosevic

 7     and Stanisic, which had begun in September of 1990, went along to see

 8     Milosevic in March, on the 20th of March, 1991, seeking assistance for

 9     the Ministry of Interior's nascent police force.

10             So according to JF-039's account, at the time when Babic went

11     seeking for help for the SAO Krajina's new police force, Stanisic had

12     already been facilitating seven months of supplies.  And since January of

13     1991, three months before, Stanisic had been delivering weapons in MUP

14     trucks with blue registration plates, indicating they were from the

15     Serbian police, driven by men wearing special police uniforms, straight

16     into the heart of Knin.

17             I think we can agree that we would need some dark shadows to hide

18     those trucks, and yet no one, not the authorities in Bosnia as these

19     trucks travelled through, not Babic, no one but JF-039 appears to have

20     noticed.  A case of the left hand not knowing what the right hand was

21     doing, or is somebody, or both JF-039 or Babic, being economical with the

22     truth?  Is it possible that -- or likely that Babic went separately to

23     Milosevic in March of 1991, seeking urgent help for the police,

24     completely unaware that Stanisic was co-ordinating Milosevic's supplies

25     to Martic and had been doing so since September of 1990?


Page 20276

 1             Could we go into private session for a moment, please.

 2             JUDGE ORIE:  We move into private session.

 3             MR. JORDASH:  I think it is also maybe the time for the break,

 4     with Your Honour's leave.

 5             JUDGE ORIE:  It depends on whether we split up in two portions

 6     of -- we had a bit of a late start.  So if you go on for seven or eight

 7     minutes then we would have equal division between the two portions.  But

 8     if Mr. Stanisic would prefer to have a break now then we'll take that.

 9             MR. JORDASH:  No I think we can continue.  Thank you,

10     Your Honours.

11             JUDGE ORIE:  Then we continue for another seven to eight minutes.

12                           [Private session]

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 20277

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8                           [Open session]

 9             THE REGISTRAR:  Your Honours, we're in open session.  Thank you.

10             JUDGE ORIE:  Thank you, Mr. Registrar.

11             MR. JORDASH:  So let's suspend common sense for a moment and

12     presume that Babic was completely unaware and he did go to Milosevic in

13     March of 1991 without appreciating that Stanisic on behalf of Milosevic

14     had been co-ordinating for seven months.

15             If we can turn to slide 37.  Not to be shown to the -- oh, I

16     think it can be shown to the public.  Apologies.

17             As Your Honours will see from slide 37, following the meeting in

18     March of 1991, Babic spoke to Martic's assistant in the police,

19     Zelenbaba.  Did Zelenbaba turn around to Babic and say, Dear president,

20     let me tell you a story about Martic's brother, Mr. Stanisic, who we

21     trust 100 per cent, don't you know he's been delivering weapons for seven

22     months.  You didn't know that?  No.

23             As an aside, why did Milosevic, Bogdanovic, or Stanisic not tell

24     Babic as his March 1991 meeting, Stop wasting our time, Mr. Babic.  We

25     have been assisting you for seven months.  Not just to create the police


Page 20278

 1     but for the barricades, the nightguards, we're setting up a great

 2     training base.  Nobody said that to Babic.

 3             And what does Zelenbaba tell Babic when Babic approaches him?

 4     Zelenbaba, Martic's assistant says, it is Kertes who has been kicking

 5     open the doors of the TO.  Nothing about MUP trucks.  Nothing about

 6     Stanisic.  Nothing about this so-called brotherly love.

 7             Could we turn to slide 38, please, because there's a third

 8     version.  It's confidential.  According to the Prosecution thesis, P975

 9     is an excerpt from a speech Milosevic gave when addressing members of

10     local councils on the 16th of March, 1991.  Allegedly it is a reiteration

11     of an order the day before that led to the creation of Golubic.

12             Slide 38 contains the relevant excerpt.  And yet, according to

13     JF-039, upon which the case against Stanisic hangs, in relation to

14     supplies and co-ordination with Martic, Milosevic had been engaged in

15     creating new police forces in Krajina since September of 1990.  Or at

16     least from January 1991.  In January 1991, according to JF-039, Stanisic

17     had effectively acted on Milosevic's order for Golubic to open in a very

18     short time.  And yet not even Milosevic appears to have know about his

19     own co-ordinating of supplies or his own decision to create Golubic two

20     months before.  Doesn't make sense and it never will.

21             JF-039 built the house on sand and Babic and Milosevic knocked it

22     down.

23             Slide 39, please.  It should remain public -- confidential.

24     JF-039's evidence is absurd and demonstrably so.  JF-039 perjured

25     himself.  Slide 39 contains dispositive proof of his failure to remain

Page 20279

 1     consistent on the most basic of issues.  Did Stanisic's arming or his

 2     co-ordinating on behalf of Milosevic stop in June, or did it go on for

 3     the entire five years?

 4             Let us examine a bit further.  I don't know if this is a

 5     convenient time.  I was going to move to another --

 6             JUDGE ORIE:  We are at 75 minutes, approximately so.  Let's take

 7     the break now.  Then you have another session of 75 minutes after the

 8     break, and then the Simatovic Defence can start after that.

 9             We resume at ten minutes past 4.00.

10                           --- Recess taken at 3.39 p.m.

11                           --- On resuming at 4.12 p.m.

12             JUDGE ORIE:  Mr. Jordash, please proceed.

13             MR. JORDASH:  Thank you, Your Honours.

14             Let us examine further, JF-039's tale of Stanisic's intimate

15     relation with Martic and Stanisic's role as the channel of communication

16     with Milosevic.  Apparently that relationship was so intimate and

17     affectionate that Martic often referred to Stanisic as "my brother" and

18     he said he trusted him 100 per cent.  And, yet, according to JF-039, and

19     discussed in our brief at paragraphs 302 to 320 particularly, in

20     June 1991, Martic, threw Simatovic out of Knin in order to seize full

21     control over his police and TO.  As I've mentioned, according to JF-039,

22     Stanisic's supplies of weapons stopped, what, according to one version of

23     JF-039's account Stanisic supplies of weapons stopped in May or June of

24     1991.  As discussed in our closing brief at paragraph 78, in early

25     March of 1992, Martic ordered Rajic, Simatovic, Starcevic and Orlovic to

Page 20280

 1     be arrested because, and I quote, "these men all worked directly for

 2     Simatovic and were members of the Serbian DB."

 3             JF-039 claimed at T-7282 that Martic attempted to arrest these

 4     men effectively dissolving the Krajina DB because he believed that

 5     Orlovic was passing information more to Stanisic than to him.  JF-031

 6     offered some corroboration of that account, noting that Martic's

 7     principal grievance was that he never received correct information.

 8     Your Honours will find that at paragraph 79 of our brief.  Draca at

 9     transcript 16778 confirmed that Martic had an ongoing dispute with

10     Stanisic and the Serbian DB.  It was only in January 1993 that very

11     limited contact was re-established between the RSK DB and the Serbian DB.

12             If we could to slide 40 to finish this chronology.  As we discuss

13     at paragraph 1118 of our brief, on the 4th of the October, 1994, Martic

14     accused Stanisic of using Kostic and Kojic to undermine his authority,

15     including kidnapping his minister of the interior, Prilic -- or Prijic in

16     August of 1994 and detaining Martic himself on the border crossing.

17             Slide 40 contains part of a phone call Martic made to Milosevic.

18     As we can see, Martic was refusing to meet Stanisic in 1994, claiming

19     that Stanisic is:

20             "Tripping me at every step and causes trouble.  This is really

21     below any level."

22             So as this brief chronology shows, from June 1991, according to

23     JF-039 himself, Martic attempted to remove the Serbian DB's alleged

24     influence from the Krajina.  And yet, despite this clear evidence of

25     Martic's relatively consistent paranoia that Stanisic and the Serbian DB

Page 20281

 1     were undermining his authority, Your Honours are supposed to conclude

 2     that Martic regarded Stanisic as his brother and trusted him

 3     100 per cent.

 4             That is not to argue that Stanisic was never in contact with

 5     Martic.  That would be preposterous.  It was would be as unrealistic as a

 6     proposition that any contact or assistance to the RSK must have been in

 7     furtherance of crime.  It would have been negligent to decline to form

 8     any relation with Martic given the implications of Martic's clumsy

 9     leadership for the security of Serbia.

10             At paragraph 669 of the Prosecution's closing brief, the

11     Prosecution claims that Milosevic's own words confirm Stanisic's role as

12     a liaison between himself and Martic.  They claim that:

13             "In one intercepted conversation in September 1991, regarding a

14     protocol for a cease-fire in the SAO Krajina, Milosevic said to Karadzic,

15     So, I told you of it, sir, as he was this contact with Milan, to say that

16     Martic should sign this technical protocol."

17             Unfortunately, the Prosecution's position declines to distinguish

18     conduct in furtherance of crime and contact with the leadership of the

19     RSK to advance peace.  Being tasked by Milosevic to have Martic signed a

20     European Union-sponsored peace proposal is one thing, co-ordinating

21     supplies to further crimes, quite another.

22             As will be outlined in the remainder of this closing, Stanisic's

23     role with regard to such peace initiatives is well documented.  To this

24     extent, it might be considered a channel of communication.  His contact

25     with Martic to urge him to sign an agreement, or protocol, as a step

Page 20282

 1     towards peace was the first of many other attempts to further peace

 2     initiatives from the Wynaendts Peace Conference, to Vance, to Dayton and

 3     beyond, we say this evidence is in disputable and stands in marked

 4     contrast to the thrust of the Prosecution case.

 5             If we could turn to slide 41, please.

 6             The Prosecution falls into the same error with regard to

 7     Stanisic's role assisting with implementing the Vance Plan.  At

 8     paragraphs 82 to 84 of the Prosecution final brief, the Prosecution

 9     assert that P686, an intercepted conversation between Karadzic and

10     Stanisic, dated the 7th of January, 1992, shows that:

11             "Stanisic played an integral role in -- in the shaping of the

12     soon-to-be RSK's government concept, making government appointments,

13     planning military police activities in SBWS, and consolidating Serbian

14     territories outside of Serbia."

15             This slide contains the relevant part of that conversation.

16     Despite the Prosecution attempt to extrapolate from that conversation, a

17     cursory examination of this intercept shows Karadzic and Stanisic were

18     talking about the difficulties of having the Vance Plan implemented,

19     nothing to do, stretches one might, with forcible removal of Croats from

20     Croatia.

21             The fact that the Prosecution relies upon it is an eloquent

22     illustration of the frailty of their case.  This conversation and others

23     we will see in a moment stands as a rebuttal of the role Stanisic is

24     alleged to have played.  It is a illustration of his lack of criminal

25     intent.

Page 20283

 1             If we could go to the next slide, please.  Actually, before we

 2     do, Your Honours will see Stanisic in the 7th of January, 1992,

 3     expressing his frustration with the lack of political activity there, the

 4     RSK, we can agree with the Prosecution on that, as he says:

 5             "Because all these people are complete incompetent jerks and

 6     immature as well ... I had trouble explaining them to be patient and to

 7     get serious and get to work."

 8             Stanisic notes he met 44 commanders to explain the situation and

 9     notes that discontent that exists there.

10             The same conversation.  Stanisic is, we suggest, pulling his hair

11     out with frustration.  He refers to the leadership of the RSK as fierce

12     Chetniks:

13             "There are a lot of radical people there who are angry at the

14     entire world.  They are sitting in these border areas for a year and are

15     fighting.  Do you understand."

16             Stanisic says he's going to make a round on the field and make

17     some -- some kind of concept.

18             The idea that this intercept stands as proof as Stanisic's

19     war-like activities or his integral role in the shaping of the RSK's

20     government's concept as the furtherance of a criminal purpose is a

21     fanciful proposition.  He was doing his level best to engineer a concept

22     that would reduce the discontents of those war commanders, who, rather

23     than implementing Vance or moving towards peace, had other ideas.  Does

24     this name-calling from Stanisic, his obvious frustration, sound like a

25     man who had played the critical role co-ordinating their activities and

Page 20284

 1     their crimes, or someone who admired their work, or someone who had a

 2     vested interest in their war-like activities, or shared, more

 3     importantly, any criminal intent?

 4             Can we turn to slide 43, please.

 5             The Prosecution's unreasonable approach to Stanisic's alleged

 6     role as the facilitator of the JCE is even more apparent with regard to

 7     Babic.  This is dealt with at paragraphs 20, 669 to 671 of the

 8     Prosecution brief.  Slide 43 sums up the claimed support for this alleged

 9     role.  Let us examine this proposition that the Prosecution claims stands

10     as its dispositive proof of Stanisic's contribution to the JCE.  It is a

11     stark illustration of the dangerous ruse at the heart of the Prosecution

12     case.  As Your Honours will discover through an examination of footnotes

13     2324 to 2326, the Prosecution brief, entitled:  Channel of communication,

14     there is not a single piece of evidence to suggest that Stanisic

15     facilitated Babic's contact with Milosevic, let alone shared his

16     extremist views.  How that allegation sits with the parallel structure

17     thesis is yet to be explained.

18             On the contrary, there can be little doubt that Stanisic regarded

19     him quite accurately on one view, even though it's not nice to speak ill

20     of the dead, as one of the radical incompetent and immature jerks of the

21     RSK leadership that stood in the way of the Vance Plan.

22             The Prosecution provides one example of Stanisic's alleged

23     co-ordinating role with Babic.  If we could turn to slide 44, please.

24     The example is that Stanisic facilitated the Vance Plan.

25             Slide 44, 45, 46, and 47, reflect excerpts of P683, P686, 87, and

Page 20285

 1     P690, all conversations between Karadzic and Stanisic in January of 1992.

 2     Because the Prosecution declined to distinguish conduct in furtherance of

 3     crime from other conduct they claim that these conversations support

 4     their case.  On the contrary, we urge Your Honours to examine these

 5     intercepts.  They offer a window into Mr. Stanisic's mind, his

 6     contemporaneous repudiation of Babic's radical attitude and his attempts

 7     to have the Vance Plan implemented, a plan that offered the only prospect

 8     that Croats might be able to return home.

 9             As slide 44 shows, on the 5th of January, 1992, Stanisic explains

10     how he has tried without success to tie Babic down.  Karadzic notes that

11     he could spoil things, meaning, obviously, the Vance Plan.

12             In slide 45 - we can turn to that - the men can be seen -

13     Karadzic and Stanisic - from the 7th of January continuing that theme.

14     Karadzic in characteristically colourful language suggests that the army

15     should grab Babic by the balls to force him to sign the Vance Plan.

16     Your Honours will note that it is Karadzic, not Stanisic, who acts as the

17     peace-maker between Babic and Martic.  Stanisic notes that Babic's

18     "radical attitude towards everybody can finish really bad."

19             Turn to slide 46, please.

20             Your Honours, if one looks at slide 46, 47, 48 and 49, these are

21     excerpts from the conversations on the 12th and the 22nd of January,

22     1992.  Slide 46 has Karadzic informing Stanisic that he mad a plan with

23     Babic to go see Milosevic.  It's noteworthy that he has to inform

24     Stanisic of that fact.  If Stanisic was the facilitator between Babic and

25     Milosevic, surely he would have made that arrangement, not Karadzic.

Page 20286

 1     Both men agree that a favourable ending is only a step away.  Stanisic

 2     expresses his fear there will be a total war.  That's what he is afraid

 3     of.

 4             In slide 42, both men agree that their conversation mens nothing.

 5     They have to tell those that disagree with them.  They make a plan to

 6     act.  They make a plan to meet and act.  Stanisic notes that he does not

 7     want to be shown as part of the initiative.

 8             Slide 48 contains exerts from Exhibit P690, a conversation the

 9     two men had on the 22nd of January, 1992.  Karadzic and Stanisic discuss

10     the way forward and how Karadzic has negotiated with Babic to come to a

11     comprise, to allow the Krajina to express some reservations with the

12     Vance Plan.  Stanisic notes his relief.

13             Stanisic -- sorry.  Slide 49 contains the only remark in this

14     whole case, spanning more than five years of ethnic conflict, that

15     provides an iota of evidence to support a suggestion that Stanisic might

16     have harboured ill-feelings to the Croat population.  It is worthwhile

17     examining this conversation in context and in the context of the

18     frustration that both men have clearly shown with Babic and the RSK

19     leadership.

20             Karadzic notes an undesirability of war continue in the RSK,

21     stating that:

22             "Nobody will win.  We will all be impoverished and ruined."

23             He notes that without Tudjman and the Croatian Serbs showing some

24     elasticity and goodwill they will be in for 30 years of torture.

25     Stanisic concurs, noting that they must push them all to Belgrade.  He

Page 20287

 1     notes with obvious frustration:

 2             "There is nothing left for us to do or we'll exterminate them

 3     completely, so let's see where we end up.  If they want it, then they'll

 4     have a all-out war, better to do it like decent people."

 5             The proposition that a single remark can stand as any evidence of

 6     Stanisic's criminal intent is a distortion of the remark and the context

 7     of the conversation.  There is not a single person in this room who has

 8     not uttered in frustration an inflammatory remark or an overly aggressive

 9     comment that they regretted immediately.  Stanisic was obviously

10     frustrated at the incompetence and reckless behaviour of both Babic and

11     Tudjman.  That the Prosecution is only able to offer this one remark

12     throughout the whole of the indictment period is a cogent illustration of

13     Mr. Stanisic's coolness under fire, his racial tolerance in the midst of

14     a hateful conflict and the falseness of this indictments.

15             He knew there was no choice:  Sign the peace agreement like

16     decent people rather than continuing the war.  He was tasked to help

17     persuade the RSK leadership to sign the peace agreement.  If that makes

18     him a channel of communication, then so be it.

19             If we can turn to slide 50.

20             Let us examine very briefly Stanisic's alleged role as

21     co-ordinator of Hadzic's activities.  Prosecution claim that Stanisic

22     co-ordinated the SBWS, including the special units, the Red Berets,

23     Arkan, the Skorpions, et cetera, through his co-ordinating relationship

24     with Hadzic.

25             Slide 50 contains the Prosecution's principal allegations.  These

Page 20288

 1     allegations are almost wholly unsubstantiated, at best supported by

 2     patently unreliable hearsay.

 3             I have already outlined our position with regards to points 5 and

 4     6 on the slides in front of you.  I will not return to this obvious

 5     reversal of the burden of standard of proof.

 6             Slide 51 contains the single piece of evidentiary lied on in

 7     support of the allegation that Hadzic viewed Stanisic as the link between

 8     Milosevic and Badza by stating that Hadzic told him this, but he can't

 9     say anything more than that.  The witness Bogunovic fairly conceded the

10     limited value of his own evidence, a reasonable position to take with

11     regard to this evidence and Hadzic and the breadth of the allegation

12     sought to be established by this evidence.

13             There is no reliable evidence that Badza was ever denied access

14     to Milosevic.  As we discuss in our final brief, Badza's subsequent and

15     meteoric rise from SI commander to deputy minister of the interior shows

16     his closeness to the SPS party stalwart Sokolovic, who was minister of

17     interior, which in turn stands as cogent evidence of a relationship with

18     Milosevic.

19             As slide 52 shows - if we can turn to that - the Prosecution also

20     alleges that Hadzic implemented recommendations and orders from Belgrade

21     after meeting with Milosevic and Stanisic.  Despite an impressively large

22     footnote most of the evidence relied upon in support of that concerns

23     Milosevic, not Stanisic.  The evidence that places Stanisic at these

24     meetings is limited to two witnesses.  The irrepressible Mr. Babic, never

25     one to pass up an opportunity for fabrication or exaggeration, and

Page 20289

 1     Mr. Bogunovic.  As slide 52 shows, both make assertions devoid of any of

 2     the type of detail that might turn an allegation into something concrete,

 3     let alone satisfy Your Honours of the truth beyond a reasonable doubt.

 4     It is impossible to be satisfied that Stanisic was present at the

 5     meetings.  Even if he was present at the meetings, the Prosecution has

 6     adduced no evidence that could satisfy this Chamber that he was

 7     instructing or advising Hadzic.  Your Honours will not be able to

 8     identify a single instruction or a piece of advice conveyed by Stanisic.

 9             Regarding Babic's evidence, let us apply the burden and standard

10     of proof and recall Babic's evidence must be corroborated.  It has not

11     been and should be disregarded.

12             Slide 53, if we can turn to that, contains some excerpts from

13     Bogunovic's evidence in relation to meetings he had with Stanisic.  This

14     has been ignored by the Prosecution.  Bogunovic was the minister of the

15     interior for the SBWS.  If Stanisic was engaged in passing on Milosevic's

16     instructions it is logical to presume that he would not limit this to

17     instructions straight to Hadzic.  Indeed, the implication of the

18     Prosecution case is that it extended to the whole of the SBWS government

19     from Kojic to Mrgud, and so on.  And, yet, on the rare occasion Bogunovic

20     met Stanisic, as we discuss in the SBWS section of our brief, Stanisic

21     did not speak.  He sat and took notes.

22             As we discuss in paragraph 432 of our closing brief this is

23     precisely what the evidence shows he did when he met the minister of

24     defence during the five meetings he had from 1991 to 1995.  These

25     meetings concerned updates on political events, refugees, and once again

Page 20290

 1     the implementation of the Vance Plan.  Silence and taking notes is

 2     curious behaviour for a man whose principal task was to pass instructions

 3     from Milosevic to the SBWS government.  Passing information to Milosevic

 4     on these types of security-related subjects is one thing, passing

 5     instructions and orders in furtherance of crime, something quite

 6     different.

 7             Slide 53 sums up some of Bogunovic's evidence that is relevant to

 8     that submission.  Slide 54 the Prosecution wants Your Honours to accept

 9     Stanisic was the link between Milosevic and Arkan and Badza for whom

10     Milosevic exerted influence over Hadzic on the ground.  Slide 53 contains

11     the evidence relied upon.  The Prosecution should think twice before

12     accusing a man who had been linked with Arkan and really needs to be

13     based on more than a witness's assumption.

14             Finally, the Prosecution allege that in the capacity of

15     facilitator Stanisic arrived Dalj in mid-September of 1991, expressing

16     outrage that Vukovar had not yet fallen to the Serbs, demanded a meeting

17     with Hadzic, a meeting which would further the common purpose with

18     respect to Vukovar.  During the meeting, Stanisic, it is it alleged,

19     planned operations to liberate Vukovar as soon as possible.  Let us

20     analyse that for a moment.  No longer working in the shadows but

21     bellowing in public like a market trader selling his wears.  If the

22     Prosecution were interested in contextualization they would not have

23     relied upon this allegation.  No witness but JF-032 heard Stanisic, or

24     heard of Stanisic turning up in Dalj and screaming.  Bogunovic, according

25     to the witness at T-4757, was supposed to be present at the screaming.

Page 20291

 1     JF-029 was, according to JF-032 at transcript 4759, supposed to have been

 2     present at the planned meeting.  At transcript 6044, Bogunovic confirmed

 3     he never heard of such an event.  Neither Bogunovic, the minister of the

 4     interior or JF-029 offered a scintilla of evidence to corroborate this

 5     fabricated, largely hearsay tale.  As critically, there is not a single

 6     piece of other evidence to suggest that Stanisic was involved with

 7     planning the Vukovar operations.  One would have thought that at least

 8     one insider in this trial or any other trial would have learnt such a

 9     role.  The Prosecution seeks to persuade you that a professional

10     counter-intelligence officer and Hadzic, a warehouse manager by trade,

11     sat down and helped to plan the biggest military operation of that time.

12     Oddly, nobody but JF-032, from the leadership of the SBWS to those in the

13     JNA appear to have noticed such an important contribution to one of the

14     biggest crimes in this terrible war.  Of course, it's a lie.

15             Could we turn to slide 55, please.

16             Finally we turn to the Prosecution's originating premise

17     concerning Bosnia.  As with the Croatian crime bases, their case rests on

18     Stanisic being a channel of communication.  Or, as they put it at

19     paragraph 675 and 676:

20             "A gate-keeper and liaison between Milosevic and Karadzic which

21     parallels Stanisic's role vis-a-vis Martic, Babic, and Hadzic."

22             This originating premise is a critical part of the Prosecution

23     case.  It cannot sensibly be suggested that Stanisic had any real

24     relationship with Mladic.  As the Mladic notebooks made clear, Stanisic

25     was only introduced to him in July 1993.  Mladic, as I have said, did not

Page 20292

 1     have Stanisic's number until July 1995.  Milovanovic thought Stanisic was

 2     a waiter in early 1993.  So Stanisic cannot have been co-ordinating

 3     through that military line.  He must have been through the political

 4     line.  This political relationship allegedly allowed him to parachute

 5     Arkan's Men and the Skorpions at will into the VRS zone of

 6     responsibility.  No doubt, Mladic will claim it had nothing to do with

 7     him.

 8             As we can see from slide 55, the Prosecution makes various

 9     allegations concerning Stanisic's relationship with Karadzic.  The most

10     startling feature of these expansive claims is the evidence lied upon to

11     establish Stanisic's role during the five-year indictment period, his

12     evidence that comes from intercepts from July 1991 until January 1992,

13     and a diary that places Stanisic on the 6th of September, 1991, at a

14     meeting with Bogdanovic, who is clearly acting as a contact man for Jovic

15     involved, we would say, in limited supply to vulnerable Serbian villages

16     in Bosnia.

17             Even if the Prosecution's interpretation of these intercepts does

18     disclose that Stanisic was at the time co-ordinating Milosevic's supply

19     of weapons or his political project, the interference the Prosecution

20     urges is astonishing.  Despite a whole military campaign the creation of

21     new political structures, the transformation of the JNA into the VRS, and

22     a myriad of other criminal and non-criminal events, the Prosecution

23     suggests that you can be satisfied Stanisic maintained this relationship

24     through the indictment period, an ambitious inference, indeed, not

25     because they can point to circumstantial evidence of that relationship

Page 20293

 1     continuing, oral testimony, documentary evidence such as assembly

 2     minutes, Karadzic's diary which was on the 65 ter list, the Mladic

 3     notebooks, intelligence reports, or even the usual multiple hearsay

 4     evidence that is a regrettable feature of this case, but because of a

 5     handful of conversations before the war.

 6             Slides 56 and 57 contain a selection of the adjudicated facts in

 7     this case.  They place the Bosnian Serbs' movement to war in some

 8     chronological context.  Even if Stanisic was given carte blanche by

 9     Milosevic to supply Bosnian Serb villages with weapons in late 1991, or

10     facilitated the political events until January 1992, it is difficult, we

11     submit, to see how this could have been linked to this criminal purpose.

12     In the words of the Prosecution's requested Third Adjudicated Fact,

13     number 97, it was only during 1992 when the SDS started contemplating

14     military conflict as a likelihood and no longer as a mere possibility.

15     Calls to take over territory became "strong and distinct only at the

16     beginning of January 1992."

17             At paragraphs 88 to 117, the Prosecution discuss these

18     intercepted conversations under the title:  "Implementation of the JCE in

19     Bosnia."  It includes -- or they include various accusations including

20     Karadzic's and Stanisic's alleged belligerence suggesting that neither

21     man was seriously interested in peace.  We submit that these allegation,

22     even if taken at face value and accurate, have little to do with this

23     trial.  But on the contrary, the allegations made by the Prosecution and

24     the provocative title:  "Implementation of the JCE in Bosnia," are

25     designed to persuade Your Honours that a criminal purpose began in Bosnia

Page 20294

 1     the same time as the one in Croatia and for one reason only.  The best

 2     evidence of Mr. Stanisic's involvement with Karadzic began at that time

 3     and ended in January of 1992.

 4             Moreover, this evidence does not even begin to prove that

 5     Stanisic was not interested in peace, let alone that he was pursuing

 6     crime.  A reasonable interpretation of the relevant intercepts show

 7     precisely the reverse.  First of all, the very premise of the

 8     Prosecution's allegations are dubious to say the least.  Your Honours are

 9     invited to believe that even though Stanisic was doing his best to tie

10     Babic down, speak to 44 discontented commanders and deal with the

11     Chetniks of the RSK, simultaneously he was determined to pursue war in

12     Bosnia.  Why would a man who has castigated the RSK leadership betray

13     such a lack of logic?  In order to reinterpret the intercepts, the

14     Prosecution cut and paste events, people, and motivations to prove a

15     point that has no basis in the evidence.  If Your Honours have the

16     Prosecution's closing brief, if you would turn to paragraphs 94 to 95 of

17     the Prosecution brief, here, the Prosecution cut and paste from

18     Karadzic's comments in August 1991 to the effect that the Bosnian Serbs

19     should do everything that Brdjanin is thinking; and then suggests that

20     Karadzic's comments are chilling in light of extreme views that Brdjanin

21     held in 1992 where he advocated forcible transfer; and nice photograph at

22     paragraph 95 of Stanisic and Simatovic, the latter wearing a military

23     uniform, indisputably from much later than this time, standing next to

24     Karadzic nicely completes the exercise in unfair assertion.

25             At paragraph 96 of the Prosecution closing, they take Stanisic's

Page 20295

 1     role in attempting to prevent war and spin it to suggest the reverse.

 2     The Prosecution claims that Stanisic's involvement with Brdjanin

 3     demonstrates his authority in Bosnia by August 1991.  As I've said, of

 4     course, even if that was true it might not be true at a time when the

 5     political and military events have been transformed and the calls to take

 6     over territory had become more distinct.  It was quite possible to have

 7     influence in August 1991 and little in 1992.  In fact the burden of

 8     proof, we submit, demands that Your Honours presume precisely that, until

 9     proven otherwise.  Moreover it is, of course, possible to use influence

10     for good even if crimes were on the rise.  An examination of the

11     intercepts and the role that Stanisic appears to have played shows

12     precisely that.

13             Slide 58 shows the role that Stanisic played at that time.

14     Similar to his efforts in Croatia he kept his head when all around was

15     losing theirs.  He took Brdjanin fishing to calm him down and prevent him

16     from doing anything stupid so that the Bosnian Serbs would say not derail

17     the negotiations.  Alija would then have to tell the Muslims why they

18     wanted to wage war against the Serbs, as stated by Karadzic.  He, Alija,

19     would have to explain it.

20             We submit that the reality appears to be that Stanisic, in 1991

21     was regarded as a man who might play a role in calming the excesses of

22     others, preventing war and advancing towards peace.  His role appears to

23     be extended to Bosnia, as well as Croatia.

24             It was a role he played later with regard to Dayton and a myriad

25     of other activities that we say helped to bring peace and stability to

Page 20296

 1     the region.  Try as they might to interpret Stanisic's role alternatively

 2     or cast dispersions on his motives there is a consistent line in these

 3     intercepts of Stanisic playing a positive role.  This is it further

 4     demonstrated in a conversation between Karadzic and Milosevic on the

 5     8th of October, 1991.  Slide 59 and 60 are excerpts from that

 6     conversation.

 7             We return to the RSK.  Milosevic notes that the RSK leadership

 8     will not even turn up for the peace conference negotiations.  He notes

 9     that one man, probably Babic, thinks that everyone should get down on

10     their knees when he shows up.  Both men seem to agree that Stanisic

11     should be asked to get involved to find a way to get the leadership to

12     turn up to the peace conference.  They agree that Stanisic should invite

13     ten of the smart ones from the opposition to come to a meeting to find a

14     way forward.  Once again, the Prosecution declines to draw distinctions

15     between actions in furtherance of peace and actions in furtherance of

16     crime.  Prosecution at paragraph 679 of their brief claims that this

17     conversation is an illustration of the integral role played by Stanisic

18     in the relationship between Karadzic and Milosevic.

19             As we discuss in our closing brief, the State Security Service

20     was not built for war, nor did Stanisic have those skills.  There were

21     plenty of men who could prosecutes the war and very few had the political

22     nuance and the diplomatic skills to keep a cool head.  When the war

23     suited Milosevic or Karadzic's aims, others from Perisic to Mladic, to

24     Arkan to Badza, were required.  When a cool hand on the tiller was

25     required, it appears, Stanisic, a man schooled in counter-intelligence, a

Page 20297

 1     perfect training for diplomacy perhaps could play a role.  If we are to

 2     extrapolate from these 1991 and earlier 1992 intercepts to make large

 3     claims concerning their significance throughout the indictment period,

 4     let us extrapolate from a reasonable interpretation of the conversations.

 5     Having influence and authority is not an indication of criminal intent.

 6             And so move to section 3 of our speech and our concluding

 7     remarks, the evidence that Stanisic was number two to Milosevic, or more

 8     importantly, that he played a co-ordinating role in the war is devoid of

 9     evidential support.  If we're right about this then alongside the

10     collapse of the 28 elite trainer thesis what is left?  As we've outlined

11     in detail, in order to compensate for the lack of evidence, the

12     Prosecution have attempted to build a new case through ignoring the

13     strictures of JCE law and urging unreasonable inferences based on a

14     partial view of the evidence.  This will not assist the ascertainment of

15     the truth.

16             The careful distinctions that need to be drawn to find the truth

17     and to ensure that justice is done are not to be found in the

18     Prosecution's final brief.  It is transparently a highlight of the most

19     incriminatory aspect of the evidence untroubled by reflections on

20     reliability or credibility.  It incorporates an attempt to rebuild the

21     house using new sands, whilst insisting that the sand has a significant

22     relationship to something more substantial.

23             The reality is that the Prosecution thesis is unrealistic.  They,

24     not the Defence, are running from the evidence.  We confront the evidence

25     in our final brief, and we offer reasonable explanations, a practical

Page 20298

 1     demonstration of the approach that must be taken to the burden and

 2     standard of proof.

 3             If I, with the greatest of respect, can offer the type of

 4     analysis that Mr. Stanisic's case deserves and which the Prosecution case

 5     seeks to avoid, by referring you to slide 61, and allegation 6.  In

 6     attempt to link Stanisic to Dragan, the Prosecution relies upon P671, an

 7     intercepted conversation from the 29th of November, 1991, that they

 8     claim, at paragraph 99 of their final brief, demonstrates that Stanisic

 9     intended to engage Captain Dragan and Simatovic to assist Karadzic in the

10     way that they'd already assisted Martic.

11             It's a forgery.  It's obvious.

12             Slide 61 contains the salient parts of this purportedly

13     authenticate intercept.  It is the only intercept, we dispute, it is the

14     only intercept out of 97 produced by a witness that has no corresponding

15     audiotape to verify its authenticity.  That, of course, creates some

16     doubt concerning its authenticity.  That makes it especially important to

17     look at it in context.

18             First, as we discuss at paragraph 1036 of our closing brief,

19     there is it evidence that the Bosnian Serb leadership from at least

20     mid-1994 adopted a policy of blaming the Serbian MUP, characterising them

21     as extremists, paramilitaries and destroying incriminatory documents.

22     That makes a forgery a bit more likely.

23             Have the Prosecution removed that doubt through providing

24     corroborative support?  The Prosecution has not produced a single piece

25     of evidence to corroborate this so-called intercept and its claim that in

Page 20299

 1     November 1991 Stanisic was commanding Dragan and Simatovic on military

 2     operations in the RSK.  We suggest there is not even a single piece of

 3     evidence to suggest that Stanisic commanded Dragan or directed him in war

 4     operations, whether in Knin or otherwise, let alone at a time when

 5     Golubic was closed and Dragan was offering his services to the highest

 6     bidder.  Precisely which town were Dragan and Simatovic advancing on?

 7     Why have the Prosecution failed to adduce a single piece of evidence

 8     other than an enthusiastic greeting at Kula that suggests Stanisic did in

 9     fact send Dragan to Bosnia.  A kiss is just a kiss and a hug is just a

10     hug, and meaningful evidence of concerted action in pursuit of crime,

11     something quite, quite different.

12             A further examination of the context leaves the matter in further

13     doubt.  As Your Honours will have seen, according to P651, on the 8th of

14     December, 1991, Milosevic and Karadzic nominated Stanisic as the man to

15     sit down with ten men from the RSK opposition to force Babic's hand.  A

16     role which is extended to 44 commanders in January 1992.  And yet

17     according to this allegedly authentic intercept Stanisic was

18     simultaneously conducting operations with Dragan as well as with the

19     Red Berets, as well as with Arkan, and well as Skorpions, and so on and

20     so forth, in the Krajina and the SBWS.  It is illogical and obviously so.

21             In our respectful submission that short analysis is the type of

22     analysis that this case deserves.  The burden and standard of proof is

23     high.  It is wholly unsatisfactory to rely upon evidence only because if

24     looked through narrowed eyes and without any context it prejudices the

25     accused.  We submit an analysis of this evidence reveals a manifest lack

Page 20300

 1     of reliability which, when combined with the evidence of Stanisic's

 2     contributions to peace leads to a reasonable conclusion that Stanisic

 3     lacked criminal intent.

 4             Why was it that Stanisic was chosen to negotiate with Mladic for

 5     the release of the UNPROFOR hostages?  As we detail in Annex 2 of our

 6     closing brief, this was reportedly one of the most sensitive crisis in

 7     the Balkans.  The Prosecution can do as they might to diminish the value

 8     of this act by suggesting Stanisic's motives were not pure but it does

 9     not deal with the central question.  Why him?  Why not Perisic, who, as

10     we know, had an intimate relationship with Mladic?  Why not a myriad of

11     other men?

12             No one can seriously suggest that Mladic, the commander of

13     thousands of VRS troops was fearful of Stanisic or his JATD.  No evidence

14     exists that Stanisic had an ongoing relationship with Mladic, let alone

15     one of intimacy or affection.  The Prosecution claimed yesterday that

16     the -- the fact that Stanisic was able to go and negotiate that release

17     shows he had significant influence, but over who?  As the Mladic diary

18     show, he only met Mladic in July 1993 and in 1995 they had not even

19     exchanged phone numbers.  So why Stanisic?

20             We suggest the answer lies in the character of the man.  It's the

21     same answer to the question why in 1991 and 1992 was Stanisic apparently

22     engaged with persuading the RSK leadership to sign the Vance Plan.  That

23     answer may help to understand why Stanisic, from 1991 when madness

24     swirled around the Balkans, continued to cultivate relationship with

25     pivotal intelligence services from aboard.  Or why as the chief of state


Page 20301

 1     security he was chosen to negotiate Dayton?  Or why after Dayton, he

 2     helped to secure the safety of ongoing peace operations.  We refer

 3     Your Honours to Annex 2 of our closing brief.  You don't have to take my

 4     word for it, Your Honours.

 5             May we go into private session, please.

 6             JUDGE ORIE:  We move into private session.

 7                           [Private session]

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 20302











11 Pages 20302-20303 redacted. Private session.
















Page 20304

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4                           [Open session]

 5             THE REGISTRAR:  Your Honours, we're in open session.  Thank you.

 6             JUDGE ORIE:  Thank you, Mr. Registrar.

 7             MR. JORDASH:  Why is it that Stanisic did not join Milosevic's

 8     party at any time during the indictment period.  Why is it that he was

 9     against members of the DB joining any political party?  Why is it that

10     most DB centres had a multi-ethnic composition?  Why was it that not a

11     single Muslim was removed from his service during the war?  Why did he

12     allow Zlatko Radnic, a Croat, to remain chief of the 6th Administration

13     throughout the war?  We invite you to look at Annex 2 of our brief.  You

14     will see this to be undoubtedly true.  Radnic was still employed in 1996

15     and accompanied Stanisic on high-level visits abroad.  The Prosecution

16     asks you to ignore these assessments as Stanisic as a non-political and

17     moderate man provided by men of integrity and worth and instead accept

18     the evidence of unsavory characters such as JF-039 or JF-047 who couldn't

19     decide wether he was in an RSK MUP unit or a Serbian MUP unit; or

20     witnesses like Kovacevic or JF-005 who may still be looking for their

21     notes in their kitchen cupboards; or the incorrigible Theunens with his

22     expressions of gratitude for his long-standing employment with the

23     Prosecution at the ICTY.

24             Mr. Stanisic was a pragmatist, not a nationalist or an extremist.

25     He had a job to do that involved at its core as we outline in Annex 1 of


Page 20305

 1     our brief to oppose all forms of extreme nationalist activity in order to

 2     prevent an intra-national conflict, a civil war and terrorism.  Why could

 3     a Croat remain in such a high position in the DB and yet that was

 4     impossible for other state organs?  Because this states organ was not

 5     prosecuting a war against Croats, and unlike other state organs, having

 6     an ethnically diverse membership was an asset to its work.

 7             As I noted at the outset, Stanisic did not believe in a

 8     Greater Serbia, depending upon expanding land or territory.  As early as

 9     1992 if not before, Stanisic knew that it was not possible to hold

10     Yugoslavia together, let alone achieve the more grandiose ambitions of

11     the nationalists and extremists within Serbia.  Not to be shown to the

12     public, please, slide 63 and 64.

13             This is a conversation Stanisic had with Karadzic which we say

14     provides another insight into his mind.  From early on in this terrible

15     war, a position he took on the 5th of January, 1992.  Karadzic was

16     excited about a speech he had given at a convention that was televised.

17     Stanisic watched the speech and spoke to Karadzic.

18             Stanisic was guarded in his praise of the convention and

19     Karadzic's speech.  He did not say he liked.  He said that he observed

20     that others did:

21             "We were watching you carefully and that applause you got."

22             Whereas Karadzic characterises his speech as non-elitist,

23     Stanisic is careful to note that he, Karadzic, is "Orthodox," clearly a

24     euphemism for "extreme."  He notes that it is the Orthodox leftist that

25     got most from it.

Page 20306

 1             Finally, Karadzic notes that he wants "Yugoslavia as a whole,"

 2     Stanisic notes that he is "wondering the same thing" but finally notes

 3     that he does not know how this would be possible.  I suggest that this

 4     shows, or is at least some evidence of, Stanisic, the pragmatist who knew

 5     that it was not possible.

 6             In his own quiet way he tried to urge Karadzic to be realistic.

 7     Stanisic knew the world didn't work like that.  Even if dyed-in-the-wool

 8     nationalists like Babic, Martic, Hadzic and Karadzic did not, he knew

 9     that this political aim was impossible even though he had to be

10     circumspect when speaking to Karadzic.

11             If that's right or might be right what was Mr. Stanisic's

12     political objective?  How could he have thrown himself into prosecuting a

13     war when he did not share a belief in political objectives or share a

14     belief that they were possible?  How could he have thrown himself into

15     committing crimes considered by others to be integral to the achievement

16     of their unified Yugoslavia if he doubted from early on that it was not

17     possible?  How could he have shared that criminal intent?

18             As the Balkans erupted, Stanisic's job was to prevent Serbia

19     erupting too.  His job was critical.  Others were perfectly capable and

20     militarily trained to direct and organise the formation of special units,

21     to finance, train and provide logistical support to those special units

22     as well as leading them into battle in furtherance of crimes.

23             Thank you very much for time, Your Honour.

24             JUDGE ORIE:  Thank you, Mr. Jordash.

25             I think it is time for a break.  We will take a break and we will

Page 20307

 1     resume at five minutes to 6.00.

 2             And will it be you, Mr. Bakrac, or your, Mr. Petrovic, who will

 3     then address the Court?

 4             MR. BAKRAC: [Interpretation] Yes, Your Honour, I will address you

 5     with your leave.

 6             JUDGE ORIE:  We resume at five minutes to 6.00.

 7                           --- Recess taken at 5.22 p.m.

 8                           --- On resuming at 5.56 p.m.

 9             JUDGE ORIE:  Mr. Jordash, before we continue, how much time would

10     you need to explain what you wanted to submit in addition to -- I mean,

11     we have got two and a half hours for the Simatovic Defence left, both

12     Defence and Prosecution another two hours which makes four and a half

13     hours.  We have one hour left today.  That means three and a half hours

14     tomorrow.  It would just fit in, unless we have lengthy submissions about

15     the matters you want to raise.  And I'm also, of course, looking at

16     Mr. Groome.

17             MR. JORDASH:  I don't think any more than 10 to 15 minutes

18     maximum.

19             JUDGE ORIE:  Well, if both parties -- then we are running out of

20     time then we will have to continue on Friday.

21             MR. JORDASH:  I will limit my submissions to five minutes.

22             JUDGE ORIE:  To five minutes.

23             Mr. Groome.

24             MR. GROOME:  I think I can address my concerns in five minutes,

25     Your Honour.

Page 20308

 1             JUDGE ORIE:  Okay.  Then it's a tight schedule now.  When would

 2     you like to do that --

 3             MR. JORDASH:  At Your Honours' convenience.

 4             JUDGE ORIE:  Are you ready to -- Mr. Groome too?

 5             MR. GROOME:  Any time the Court wishes me to do it.

 6                           [Trial Chamber confers]

 7             JUDGE ORIE:  Then I will be very sharp as far as time is

 8     concerned, but we'll start hearing you immediately.

 9             Mr. Jordash, you have five minutes.  That means until four

10     minutes past 6.00.

11             MR. JORDASH:  It would help if Your Honours saw it but I know the

12     Prosecution object to that so I'll try and do it without.

13             When we went through the Prosecution brief, we noted a number of

14     problems, ranging from citations which were not accurate, just simple

15     errors, which we wanted to correct.  We also noted citations which

16     purport to provide corroborative evidence which did not.  Problems with

17     relying upon evidence which was not corroborative which had to be

18     92 quater evidence where the Prosecution hadn't assisted Your Honours in

19     identifying what they say could corroborate, citations to evidence which

20     simply wasn't there, and we took the view that there were certain

21     problems which we were duty bound to raise and to put into a document

22     which we felt would assist Your Honours and your legal officers in

23     expediting the process of assessing the Prosecution's closing brief and

24     assisting Your Honours in the ascertainment of the truth.

25             What we did was, we identified the problems and then went through

Page 20309

 1     those problems and removed those problems which we felt amounted to fresh

 2     advocacy and limited our comments or corrections to those which we felt,

 3     that, if we didn't, there was a possibility that errors in the assessment

 4     of evidence might be made.  So we took what we felt was a narrow

 5     approach, mindful that it wouldn't be fair to make new submissions, but

 6     mindful that we had an obligation to our client to ensure that

 7     Your Honours were not misled intentionally or otherwise.

 8             And, so, this is what we put together.  It is designed to assist

 9     Your Honours.  It is not designed to make fresh points but designed, in

10     the same way the Prosecution did yesterday, correcting misleading error

11     in our brief.  We took the same view, but there were many more, and we

12     felt we had to put together a document and offer it to Your Honours as

13     helpful indications which would expedite the trial and create the

14     conditions for the accurate assessment of the evidence in the

15     ascertainment of the truth.  And that's what we have now.  We don't think

16     it takes advantage of the Prosecution.  It, in fact, assists everybody to

17     be looking at the evidence in a way which is fair and a way which is

18     accurate.  And that's why we propose that Your Honours should look at so

19     that your legal officers can look at it and see if we're right.  The

20     alternative, of course, is that your legal officers start from fresh and

21     have to exactly the analysis that we did, identify the same errors and,

22     in the end, come to the same place.  Those are my submissions.

23             JUDGE ORIE:  Mr. Groome.

24             MR. GROOME:  Your Honour, two hours before of the Defence closing

25     submissions began, I received this document.  It's a lengthy document,

Page 20310

 1     and it contains argument.  To give one example from the first page, it --

 2     it purports to contradict a statement made in the Prosecution trial brief

 3     suggesting that Mr. Stanisic met Mr. Babic approximately three times.  It

 4     says, quote:

 5             "Stanisic stated that he was with that man over there at Babic's.

 6     However, about two other meetings it is not clear whether they took place

 7     or not, as he says that Babic must come here for a while and then we will

 8     go there."

 9             Clearly argument.

10             Your Honour, our understanding of the closing submissions in this

11     case is that the Chamber has allowed lengthy written submissions,

12     extended the word limit substantial, and these oral submissions today

13     which were meant to amplify the written submissions as well as respond to

14     the other parties' written submissions.

15             Your Honours, a similar situation arose in the appeal hearing in

16     the Stakic case and that case at the beginning of the -- the appeals

17     hearing the Stakic Defence handed out at large document, and this is how

18     they characterise their document:

19             "This is all evidence that has been admitted.  There are some

20     issues that we believe that the Trial Chamber erred and misquoted

21     statements from various witnesses, so we provide what we think is an

22     objective view of that testimony not taken out of context."

23             Not dissimilar from what Mr. Jordash has just said.  The

24     Appeals Chamber said the following:

25             "I think that the Prosecution should have been provided these

Page 20311

 1     volumes in advance, should have been able to peruse them, should have

 2     been able to in fact agree with you that it does not contain any new

 3     arguments.  But in any event, it seems to me that this might be seen as

 4     an attempt to expand on the number of pages, et cetera, which have been

 5     presented in the appeals brief.  The task of the Defence, as it was the

 6     task of the Prosecution, is to present its principal arguments in the

 7     briefs, which we have carefully studied and to supplement this today by

 8     the oral hearings.  And I do believe that we should not now agree to

 9     accept additional books.  If my colleagues agree with me, kindly refrain

10     from alluding to those briefs.  May I ask the Registrar to collect these

11     volumes and to return them to the Defence."

12             And, Your Honour, that was on the 5th of October in 2005 at

13     page 185.

14             The Prosecution requests Your Honours decline to accept these

15     additional written submissions, or, in the alternative, set a schedule

16     and word limits for reply briefs so that the Prosecution has an equal

17     opportunity in these closing submissions.

18             Thank you, Your Honour.

19             JUDGE ORIE:  Mr. Jordash, one minute.

20             MR. JORDASH:  Thank you.  Your Honours --

21             JUDGE ORIE:  One question first, how many pages are we talking

22     about.  Is that the booklet which you have in your hand which is 40 to 80

23     pages?

24             MR. JORDASH:  82 pages.  It's not submissions.  Let me just --

25     number 364 error, 92 quater evidence requires corroboration.  That's a

Page 20312

 1     reference to Stanisic and Deputies Tepavcevic and Prodanic met regularly

 2     relying upon a Rule 92 quater witness but no corroborative evidence

 3     identified.  So, and then just flicking through again, 207, error number

 4     207, relating to paragraph 565, assertion on the 12th of July, 1992, the

 5     Red Berets and other forces killed 27 non-Serb civilians in Percin's

 6     disco.  Our comment reference is incorrect, as it only describes the list

 7     of victims.  That the Red Berets were part of this attack is left without

 8     reference.

 9             It is pointing out obvious things such as that.

10                           [Trial Chamber confers]

11             JUDGE ORIE:  The Chamber denies the admission of such a -- the

12     submission of such a document.  However, of course, the parties are

13     invited -- if it really, if there's any reference in the submissions by

14     the Prosecution to non-existing evidence, of course, it would assist the

15     Chamber.  But, Mr. Groome, I take it if the evidence does not exist that

16     you would come immediately to the Chamber and say, There's a mistake, or

17     something like that.  The same for clear errors, typos in quotations,

18     if -- if that is -- but I can't imagine that you fill 80 pages with that.

19     Then, of course, I take it you have a look at it and then together with

20     the Defence come to the Chamber's assistance and correct it.  But as far

21     as that is concerned, you can seek agreement in order to assist the

22     Chamber together, and, otherwise, it is denied to be submitted.

23             And, Mr. Jordash, I think it would have been wise to raise the

24     matter at an earlier stage.  Also the Prosecution would have had better

25     chances to achieve what you apparently wish to achieve.


Page 20313

 1             MR. JORDASH:  To be honest it just took a long time to check

 2     and [Overlapping speakers] ...

 3             JUDGE ORIE:  Yes, but have you -- have you at all started any

 4     talks with the Prosecution about it at any earlier stage?

 5             MR. JORDASH:  No.

 6             JUDGE ORIE:  No.  Well, then you have taken that risk and it's --

 7     but to the extent the parties could agree on typos or that kind of

 8     things; for example, if the word in the quote is "was" and it actually is

 9     "is" then, of course, I would think that you would agree on that and

10     together assist the Chamber.  And the same is true for non-existing

11     evidence.  We would not long search for evidence which doesn't exist

12     because if the source is quoted and if it's not found anywhere, then

13     we'll assume that it doesn't exist anyhow.  But it seems that it goes in

14     80 pages farther further, and that is one of the reasons why the Chamber

15     considers that it should not be accepted.

16             Then, this took already 13 minutes.  Mr. Bakrac, if you start

17     quickly we will not lose further time.  Not to say that it was lost time,

18     that we will not spend more time on the matters and hear your closing

19     arguments.

20             Mr. Bakrac, you may proceed.

21                           [Simatovic Defence Closing Statement]

22             MR. BAKRAC: [Interpretation] Thank you, Your Honour.

23             Good evening to everyone in and around the courtroom.

24             In the entire course of these proceedings and also in their final

25     trial brief and closing arguments, the Prosecution maintained that the

Page 20314

 1     JCE was conceived for the purpose to permanently remove the non-Serb

 2     population by the use of force from large areas in Croatia and Bosnia and

 3     Herzegovina and that during that campaign of persecution,

 4     Franko Simatovic was one of the more prominent members of the State

 5     Security Service of the Republic of Serbia.  The Prosecution goes onto

 6     maintain that this plan originated not earlier than April 1991 and lasted

 7     until not later than December 1995.

 8             The Prosecution designates Simatovic as Stanisic's deputy and the

 9     operative commander of the units of the State Security Service, ignoring,

10     I would say, a great deal of evidence that, to say the least, cast a

11     doubt over such a conclusion.

12             Proceeding from these premises, the Prosecution alleges that

13     Simatovic, occupying the said positions, planned and carried out the

14     joint criminal enterprise, together with the political leaders of the

15     Serbs in Croatia and Bosnia and Herzegovina, their governments, military

16     and police officials, as well as political, military and police leaders

17     of the Republic of Serbia.

18             In their final trial brief, however, the Prosecution states that,

19     beginning with summer 1990, started to assist and advise JCE members in

20     the two Serbian Autonomous Regions in Croatia.  The Prosecution also

21     alleges that beginning with summer 1991, JCE members, including the unit

22     that belonged to the DB of Serbia, the Red Berets, as well as

23     Arkan's Serbian Volunteer Guard, the SDG, intimidated and assaulted

24     non-Serb population throughout Serbian Autonomous Regions in Croatia.

25     The Prosecution claims that this pattern from Croatia was applied also in

Page 20315

 1     Bosnia-Herzegovina and that the JCE members formed parallel institutions

 2     and forces, in order to carry out a violent campaign of persecution in

 3     the way that had begun in Croatia.

 4             The main piece of evidence on which the Prosecution relies for

 5     all these allegations is the speech read out by Simatovic before

 6     Chief Stanisic, President Milosevic, and other officials at the ceremony

 7     in Kula in 1997.  Although the evidence that has been led is in stark

 8     contrast with the content of the speech read out by Simatovic, the

 9     Prosecution relies on this speech as on a central piece of evidence in

10     their case against Simatovic, despite the fact that, as the Defence

11     maintains, the said speech was delivered under particular circumstances

12     and for particular reasons that we will address in due course.

13             It is obvious that after the conclusion of the Dayton Accords in

14     November 1995 the State Security Service of Serbia had particular reasons

15     to present to President Milosevic its own role in the conflicts in the

16     former Yugoslavia in a different light.  There is a wealth of evidence

17     that we will shortly emphasise to prove that the assertions made in this

18     speech are inaccurate, exaggerating the role of the RDB of Serbia.

19             To quote an example, the speech refers to 26 locations, allegedly

20     training camps.  In these proceedings we had occasion to hear of only

21     several locations where training centres were allegedly established.  The

22     same can be said of the reference to 50 locations where the unit

23     allegedly participated in combat operations, as well as the reference to

24     5.000 unit members who participated in the fighting.

25             After more than three years of hearing a large number of

Page 20316

 1     witnesses, and considering all the evidence led, I don't think anyone in

 2     this courtroom could count more than five locations to which -- with

 3     which the unit for anti-terrorist operations of the

 4     State Security Service of Serbia could be associated or where they could

 5     possibly have been involved in some operations.

 6             The number of 5.000 unit members is absurd in itself, and is

 7     deeply discrepant with all the evidence.  One glaring example of such

 8     exaggeration are allegations about the so-called air squadron which the

 9     key witness of the Prosecution, Milovanovic, qualified as inaccurate, and

10     the same applies to the airport used by these alleged aircraft.

11             It is a fact that Franko Simatovic, when reading the speech,

12     whose author we do not know, uses the word "we," but that fact does not

13     mean that he was directly, or in any other way, involved from the very

14     beginning in all the alleged activities of the service.  Simatovic is not

15     a synonym for the service, nor is the service a synonym for Simatovic.

16     Whichever employee of the State Security Service of Serbia read out that

17     speech instead of him, he would have had to use the word "we."

18             The Defence believes that the Prosecution was required to lead

19     specific evidence to prove beyond a reasonable doubt the concrete

20     participation of Simatovic for every one of these allegations, if they

21     treat this speech as crown evidence of Simatovic's participation and

22     responsibility.

23             We will further address the most striking evidence that enables

24     the Defence to state that the Prosecution failed to prove Simatovic's

25     criminal responsibility beyond a reasonable doubt.

Page 20317

 1             The Prosecution claims that Simatovic's speech is an admission

 2     and testimony about the events by a direct participant.  We believe,

 3     after considering the entire body of facts, that the speech does not

 4     corroborate the allegations and is not consistent with the evidence and

 5     constitutes an exaggerated picture of the State Security Service and its

 6     role.

 7             The Prosecution claims that Simatovic armed, controlled and

 8     commanded some of the direct perpetrators.  It is also claimed that

 9     materiel, logistical and intelligence support was provided by him to

10     implement the planned JCE.  It is claimed, also, that Milosevic, in 1994,

11     estimated that the provided equipment and weapons are in the value of

12     1 billion dollars.  If, indeed, the supplied assistance was worth more

13     than 1 billion dollars, it is unclear from the evidence led by the

14     Prosecution what specific influence and contribution Franko Simatovic had

15     in supplying that money or part of that money.  What kind of decision

16     Simatovic made?  Whom did he consult?  Who informed him?  What type of

17     assistance will be extended and in what amount?  Which part of that

18     1 billion dollars was supplied by Simatovic?  How much of that assistance

19     can be connected with Simatovic in any way?  Is that 1.000 dollars,

20     100.000 dollars?  Is there any evidence of that in this case?  Is there

21     any proof?  Is there any proof as to what assistance is associated with

22     the DB, what is state assistance, what is JNA assistance, what is

23     assistance from the Army of Yugoslavia?  Where exactly is the position of

24     Franko Simatovic in the decision to extent this assistance to the -- to

25     the population, to the Serbian population outside of Serbia, if any?

Page 20318

 1     What is his role in the decision-making about providing this assistance?

 2     What is the extent of his contribution?

 3             There is no evidence of that.  There is, however, strong proof

 4     that Simatovic had no influence on any possible decisions and any

 5     possible assistance to anyone.

 6             The Prosecution tries to identify Simatovic with the service or

 7     the state of Serbia, which is absolutely inaccurate and unacceptable.

 8     The Prosecution failed to present to this Trial Chamber the only relevant

 9     evidence; that is to say, evidence as to what, and how much, Simatovic

10     assisted in the implementation of the joint criminal enterprise, if he

11     did so at all.  And what is the importance and the consequences of his

12     activities?  It is the position of the Defence that the Prosecution was

13     required to point out precisely the specific contribution of Simatovic as

14     a member of the JCE and the extent of his contribution.  With all due

15     respect, the Prosecution has failed to do that.

16             In their final trial brief, the Prosecution refers to an

17     integrated network of secret training camps run allegedly by the accused.

18     There is nothing to prove beyond a reasonable doubt that the accused set

19     up and ran an integrated network of secret training camps and ran them.

20     First of all, the Prosecution failed to show what this integrated network

21     of camps consists of.  What is it?  What is that structure of control or

22     any other element that makes these camps integrated?

23             Thus, for instance, the camp on Mount Tara was established on the

24     orders of Radovan Stojicic, Badza, for the advanced training of PJP

25     members.  That camp was in no way secret.  PJP, from the public security

Page 20319

 1     sector, were trained there.  There is evidence of that and we have heard

 2     numerous witnesses testifying to that, as we pointed out in our final

 3     trial brief.

 4             The camp in Golubic was not set up either by Stanisic or

 5     Simatovic, not was it in any way secret or concealed.  Golubic existed

 6     for several months before the arrival of Captain Dragan in Knin, and the

 7     training in Golubic was followed by both the domestic and foreign media.

 8             Further on, we will deal with these allegations in greater

 9     detail.

10             Even if the JCE existed with the objective alleged by the

11     Prosecution, the Prosecution failed to prove beyond a reasonable doubt

12     that Simatovic participated in that enterprise.  The Prosecution did,

13     indeed, enumerate a large number of persons who allegedly were involved

14     in the JCE but failed to prove the existence of any connection or

15     interaction of Simatovic with a large number of these persons who are

16     said to be JCE members.

17             Concerning the persons that Simatovic did have some connection

18     with, the Prosecution failed to prove beyond a reasonable doubt that

19     Simatovic voluntarily shared the alleged common intent that was the

20     purpose of the JCE.  We say that the Prosecution did not provide a single

21     piece of evidence to prove beyond a reasonable doubt that

22     Franko Simatovic had any contact with Slobodan Milosevic, first of all,

23     who is considered as the principal JCE member before 1997 at the ceremony

24     in Kula where President Milosevic was present and when there was

25     absolutely no contact between him around Simatovic.

Page 20320

 1             Furthermore, there is no evidence provided by the Prosecution of

 2     any Simatovic's particular contacts with Kadijevic; Radmilo Bogdanovic;

 3     Goran Hadzic; Blagoje Adzic; Radovan Stojicic, Badza; Biljana Plavsic;

 4     Momcilo Krajisnik; Mico Stanisic; or Seselj.  All that the Prosecution

 5     offers as evidence that Simatovic was part of the joint criminal

 6     enterprise are two photographs, two entries from the Mladic's diary, and

 7     two intercepts with the unsubstantiated and vague theory on the,

 8     quote/unquote, close relationship between Simatovic and Stanisic.

 9             The Simatovic Defence will, first of all, detail with what the

10     Prosecution calls, quote/unquote, close relationship between Simatovic

11     and Stanisic.

12             The Prosecution does not explain the exact distinction that

13     characterises the official relationship between the chief of the service

14     and one of the employees of the service, and where and how their

15     relationship turns into a close one.  It is true, and it is normal, that

16     there was co-operation as there had to be between the chief and his

17     employee who, later on, becomes his advisor.

18             However, the boundary of co-operation, as envisaged by the rules

19     of the service, was never crossed, nor did the Prosecution offer any

20     evidence that the relationship between Stanisic and Simatovic went beyond

21     the rules that both of then had to observe.

22             As regards the said two photographs, that the Prosecution refers

23     to in their final trial brief, the Defence kindly asks the Trial Chamber

24     that these two photographs, P390 and P391, be compared with photograph

25     P3043, which has been in disputably established to have been made at the

Page 20321

 1     time of the liberation of hostages in Bosnia in 1994.  It is perfectly

 2     clear that these two photographs were made at the same time, on the same

 3     occasion.  The Defence has offered to the Trial Chamber a photograph of

 4     Franko Simatovic from spring 1993, where it is clearly seen that Franko

 5     Simatovic looks completely different and still wears no glasses.  That is

 6     Exhibit D862 to which we draw your attention.

 7             The statement of Witness Milovanovic that he thinks that the

 8     photograph, P390, was made in Belgrade, cannot be relied on as evidence

 9     because it is obvious that Milovanovic is only guessing.

10             So much about photographs.

11             As regards the entries in Ratko Mladic's diary --

12             JUDGE ORIE:  Just in order to fully understand, where you said:

13     "It is perfectly clear that these photographs, these two photographs,

14     were made at the same time on the same occasion."

15             Did you intend to say that P390 and P391 were made at the same

16     time and at the same occasion as P3043?

17             Is that what you intended to say?

18             MR. BAKRAC: [Interpretation] Yes, Your Honour.  When I say "at

19     the same time," I should have said "at or around the same time."

20             JUDGE ORIE:  No, what my concern was is you said these two

21     photographs but what you are doing is you are comparing two photographs

22     with a third one, and apparently you want to say that they are made at

23     the same time, approximately, as the other one.

24             Now, I'm still a bit puzzled by your last observation.  If you

25     say it's approximately the same time could that then be the same

Page 20322

 1     occasion?  Because for me, an occasion is limited in time.

 2             You said, "at the same time on the same occasion," isn't it?

 3             MR. BAKRAC: [Interpretation] Your Honours, yes, and it is the

 4     submission of the Defence that the negotiations on the liberation of

 5     hostages took a while, and these photographs were made at the time of the

 6     negotiations to liberate the hostages.

 7             JUDGE ORIE:  Yes.  Not necessarily at the same occasion, that is,

 8     the negotiations to liberate the hostages.  Or was it at those

 9     negotiations that the two photographs were taken?

10             Perhaps you -- you re-read the -- my questions, and we'll then

11     further hear from you.

12             MR. BAKRAC: [Interpretation] Your Honours, it is our submission

13     that they were made during the negotiations.  That is what we assert.

14             JUDGE ORIE:  Yes.  Then that's clear.

15             MR. BAKRAC: [Interpretation] As regards Mladic and his diaries,

16     the Defence should like to remind the Trial Chamber that Mladic kept them

17     from 1991 through 1996.  In all this time, Mladic noted hundreds of

18     meetings involving a large number of persons, including many meetings

19     with the alleged members of the joint criminal enterprise.

20             In their more than five years while Mladic was noting down all

21     these meetings, he noted Simatovic's presence at some of these meetings

22     only twice.  However, in both these cases, Simatovic did not participate

23     in the talks at all.  In addition, the Defence wishes to draw the

24     Trial Chamber's attention to the fact that the first entry dated

25     28 February 1993 is an entry related to the Operation Udar, Strike, that

Page 20323

 1     we will deal with shortly.

 2             The second entry, P2541, dated 9 September 1995, is an entry from

 3     a meeting of General Mladic, General Perisic and Jovica Stanisic,

 4     attended also by Franko Simatovic.  The only person who doesn't speak at

 5     the meeting is Franko Simatovic.  Also telling, if you look at this entry

 6     in its entirety, is that this meeting is about the liberation of two

 7     foreign pilots, and that was the only topic discussed there.

 8             Thus, we have two meetings.  No contribution to the discussion.

 9     One meeting dealing with the liberation of two foreign pilots.  We will

10     provide further explanation of the second meeting shortly.

11             As regards the intercepts, the Defence would like to draw the

12     Trial Chamber's attention to the following:  The first intercept

13     mentioning Simatovic is P693.  In paragraph 117 of their final trial

14     brief, the Prosecution quotes only the end of this conversation.  In

15     order to gain a real picture of this conversation, one has to take into

16     account the whole.  One essential thing about this conversation is that

17     it happened by chance.  Simatovic just happened to be at the office of

18     Mihajl Kertes at the time when he got a call from President Karadzic.  If

19     you take a close look at this intercept, you will see that Karadzic

20     obviously does not recognise Simatovic's voice, that Kertes tells

21     Karadzic that a friend wants to hear him, which is obvious from the B/C/S

22     transcript of this intercept.  The content of this conversation between

23     Simatovic and Karadzic does not allow us to make any conclusions about

24     the topic of the conversation.  It is also important to note that

25     Simatovic and Karadzic are not on first-name terms.  And it's also clear

Page 20324

 1     that Karadzic does not recognise Simatovic's voice.  Simatovic first

 2     introduces himself to Karadzic.  Any conclusion beyond a reasonable doubt

 3     as to the topic of this conversation and the nature of the relationship

 4     between Simatovic and Karadzic, based on this conversation, is absolutely

 5     impossible.  It is only possible to speculate, and that is precisely what

 6     the Prosecution does in their final brief.

 7             The second intercept, P671, shows absolutely nothing.  This

 8     intercept relates to the intercepted conversation between Jovica

 9     Stanisic, then chief of the State Security Service of Serbia, with

10     Karadzic, and, in that conversation, Stanisic says:

11             "You have greetings from Frenki and the captain."

12             First of all, this quote does not prove anything, does not show

13     anything.  It does not show any connection between Simatovic and

14     Karadzic, except that perhaps they know each other.  We don't even know

15     who "the captain" at that office is.

16             That is what the Prosecution offers us as essential, strong proof

17     that Franko Simatovic has a special and a close relationship with a large

18     number of JCE members.  We do not believe that this evidence could be

19     sufficient to any reasonable trier of fact to make such a conclusion.

20             In addition, the Prosecution failed to prove the other second

21     cumulative element of the JCE that would prove beyond a reasonable doubt

22     that Simatovic was part of a common plan with a clearly defined role of

23     his own in that plan.  Another standard accepted before this Tribunal and

24     another thing that the Prosecution has to prove.

25             As for the mental elements of JCE, the Defence emphasises that,

Page 20325

 1     in this case file, there is no direct evidence on Simatovic's state of

 2     mind.  The only piece of evidence that contains something relevant to

 3     what we could call Simatovic's state of mind is his own statement

 4     concerning the -- the speech in Kula, is his speech in Kula.  However,

 5     that is a speech that Simatovic only read out on behalf of the service,

 6     on behalf of the State Security Service of Serbia, with all the

 7     shortcomings that we have already addressed and described in greater

 8     detail in our brief.  That evidence on the existence of JCE and

 9     Simatovic's participation in it is unreliable and insufficient to prove

10     it beyond a reasonable doubt.  It's also obvious from the examples uses

11     [as interpreted] to corroborate their allegations in their final brief.

12             We have no doubt that the Trial Chamber shall consider all of the

13     evidence presented by both the Prosecution and the Defence in a detailed

14     way and in all its aspects.  We only wish to point out here to some

15     examples of misinterpretation of evidence by the Prosecution and their

16     reliance on evidence of little or no probative value or evidence that is

17     insufficient to prove the Prosecution theory beyond a reasonable doubt.

18             When analysing the implementation of JCE in SAO Krajina, the

19     Prosecution relies heavily on the testimony of Witness Babic, who

20     testified in the Milosevic case, and whose testimony the Defence of

21     Franko Simatovic never had an occasion to test through cross-examination.

22     This witness assesses the role and participation of Simatovic in the

23     events of the summer of 1991 in a very superficial and generalised way,

24     in P1878.

25             From the evidence offered by the Prosecution, it is completely


Page 20326

 1     impossible to see the specific role of Simatovic in setting up the police

 2     stations in Krajina.  The Defence had no opportunity to examine the

 3     witness on this issue, which strips -- which strips this evidence of all

 4     its probative value.

 5             Furthermore, the Prosecution claims that in January 1991, Martic

 6     agreed with Bogdanovic and Stanisic about the provision of material,

 7     technical and monetary assistance to Krajina, wherein Simatovic would

 8     supply salaries, uniforms and equipment for special police.  Maintaining

 9     this allegation, the Prosecution invokes the testimony of JF-039.

10             At this moment, Your Honours, could we move into private session.

11             JUDGE ORIE:  We move into private session.

12                           [Private session]

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 20327











11 Pages 20327-20330 redacted. Private session.
















Page 20331

 1   (redacted)

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 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21                           [Open session]

22             THE REGISTRAR:  Your Honours, we're in open session.  Thank you.

23             JUDGE ORIE:  Thank you, Mr. Registrar.

24             We adjourn for the day, and we will resume tomorrow, Thursday,

25     the 31st of January, at quarter past 2.00 in the afternoon, in this same


Page 20332

 1     courtroom, III.

 2                            --- Whereupon the hearing adjourned at 7.04 p.m.,

 3                           to be reconvened on Thursday, the 31st day of

 4                           January, 2013, at 2.15 p.m.