Tribunal Criminal Tribunal for the Former Yugoslavia

Page 20333

 1                           Thursday, 31 January 2013

 2                           [Simatovic Closing Statement] [Continued]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.17 p.m.

 6             JUDGE ORIE:  Good afternoon to everyone in and around this

 7     courtroom.  I wanted to greet you very quickly, but I needed some

 8     patience.

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

10             THE REGISTRAR:  Good afternoon, Your Honour.  This is case

11     IT-03-69-T, the Prosecutor versus Jovica Stanisic and Franko Simatovic.

12             JUDGE ORIE:  Thank you, Mr. Registrar.

13             Mr. Bakrac, are you ready to continue your closing argument?

14             MR. BAKRAC: [Interpretation] Yes, indeed, Your Honours.  Thank

15     you very much.  Good afternoon to everyone in and around the courtroom

16     yet again.

17             I would just like very briefly to recall since we did have a

18     brief interruption yesterday, that before the interruption, before the

19     adjournment yesterday, we dealt with the evidence that the Prosecution

20     led in order to prove Simatovic's contribution to the implementation of

21     the alleged JCE in Krajina.

22             We have addressed the Trial Chamber, and we have indicated that

23     there are some exhibits that strongly contradict the Prosecution's

24     allegations.  We dealt with this in part in closed session.  Now I would

25     like to say something about the testimony of a protected Prosecution

Page 20334

 1     witness, and therefore I would like the Trial Chamber to order the court

 2     to go into private session.

 3             JUDGE ORIE:  We move into private session.

 4                           [Private session]

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 20335











11 Pages 20335-20336 redacted. Private session.
















Page 20337

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17                           [Open session]

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

19             JUDGE ORIE:  Thank you.

20             Mr. Bakrac.

21             MR. BAKRAC: [Interpretation] Thank you, Your Honours.  I do

22     apologise.

23             The Prosecution has drawn the Trial Chamber's attention to the

24     fact that the Simatovic Defence devoted many pages to analysing the

25     relationship between Captain Dragan and Franko Simatovic, and it appears

Page 20338

 1     to us that the Prosecution implies that the Defence had decided to set

 2     aside the Exhibit P3251 on purpose.  The Defence would like to thank the

 3     Prosecution for mentioning this document, because we are convinced that

 4     this document in fact corroborates the Defence case.  This is a textbook

 5     example of an intelligence document.

 6             At page 2, penultimate paragraph, Simatovic as an operative of

 7     the Belgrade centre of the State Security Service, you can see that from

 8     the heading, notes down the following words:

 9             "In the course of the interview, we have tried to provoke him,"

10     meaning Daniel Snedden, "into talking about any knowledge he might have

11     about weapons transports through Bosnia, but he displayed no interest,

12     refusing to discuss the topic."

13             It is quite obvious that this is an interview between an

14     operative and a person they were investigating.  It is an attempt to use

15     an operative method to obtain information.  It is quite apparent that

16     between the operative and the subject there is a complete lack of trust.

17     If it is true that as early as in April 1991 at the time of that

18     interview Simatovic and Daniel Snedden were already in close contact, if

19     it's true that at the time Snedden was part of the plan to use him as an

20     instructor, as a trainer for the Serb forces in the Knin Krajina area,

21     then every reasonable trier of fact must conclude that either the plan

22     does not exist or that Simatovic is unaware of it.

23             This document confirms the Defence case that Franko Simatovic was

24     involved in the effort to detect the activities of foreign intelligence

25     services, and this includes the case of Daniel Snedden as the Defence has

Page 20339

 1     been claiming throughout the proceedings.

 2             Simatovic's job at the time as the member of the US section in

 3     the DB centre in Belgrade is displayed in the follow note.  In the same

 4     document Simatovic says:

 5             "We believe that this case should be treated with utmost caution

 6     since all the facts indicate that Snedden has ties with the agglomerate

 7     of the Israeli, German, English, and American intelligence services."

 8             This conclusion is further corroborated by the last paragraph in

 9     this document quoted by the Prosecution where it says:

10              "Virtually all the contacts established by Daniel Snedden may be

11     of interest both for foreign intelligence services and for our own

12     service.  His access to the Serbian Assembly and the ministries is of

13     particular importance."

14             And finally Simatovic makes a proposal saying that Snedden should

15     be brought in and interrogated about all the elements of his activities

16     in the Socialist Federative Republic of Yugoslavia and his links with the

17     foreign services and then assess the purpose and objective of further

18     operational contacts with him.

19             In the very last sentence, Simatovic says that the

20     2nd Administration and the leadership of the SDB of the

21     Serbian Republican SUP should be consulted.

22             So this clearly shows that in April, and this is the time when

23     Prosecution contends the JCE began, Franko Simatovic is going about his

24     business in the intelligence service proposing measures that include even

25     bringing Snedden into custody.  So Franko Simatovic is not the person who

Page 20340

 1     should arrest people.  He should merely -- it was his task to submit

 2     reports about all the measures, operational measures, that he had taken.

 3             The Defence would also like to note that the Prosecution's final

 4     brief and closing arguments do not show clearly whether it is their case

 5     that Simatovic's participation in the JCE began in August 1990 with his

 6     alleged involvement in Krajina or whether his participation begins in

 7     April 1991 after the JCE has already been designed and set in motion.

 8             Regardless of which of the two arguments the Prosecution intends

 9     to pursue, the document clearly shows that by mid-April 1991,

10     Franko Simatovic is neither aware of the alleged JCE nor is he a

11     participant.

12             In the oral closing arguments, the Prosecution highlighted a

13     paragraph from Exhibit P2976 where -- well, it is a part of video

14     recording where Captain Dragan discusses his relationship with

15     Franko Simatovic.  Captain Dragan is obviously talking about this contact

16     in April 1991 that we have already dealt with just now.

17             The Prosecution considers this evidence to be proof of contacts

18     between Captain Dragan and Simatovic, but the Prosecution would also like

19     to suggest to the Trial Chamber that at that time Captain Dragan and

20     Simatovic were already friends.  However, it is very important to read

21     what the Exhibit P2976 actually says.  In the interview, Captain Dragan

22     says, "At that time I became sort of friends with Franko Simatovic."  So

23     when he says, "I became sort of friends with Frenki Simatovic," he is not

24     talking about real friendship.  He's talking about a relationship that

25     can be interpreted in any number of ways.

Page 20341

 1             The Defence would like to reply that perhaps because of the

 2     nature of this relationship where Captain Dragan had come to realise that

 3     he was under surveillance, that he actually said this ironically.  To

 4     corroborate the reasonable argument of the Defence, we can quote what

 5     Captain Dragan said at the previous page of the same exhibit where he

 6     comments on the role Jovica Stanisic and Franko Simatovic played in Knin

 7     in the spring of 1991.

 8             Captain Dragan says the following, and it is on the previous

 9     page, and he is quite adamant about it:  Frenki is an intelligence agent

10     in that period.  That segment of the service was involved in getting

11     information from the field.

12             Does this quote by Captain Dragan differ in any way from the

13     Defence case that has been presented in detail in its final brief?  In

14     this case yet again the Prosecution sets aside the totality of the

15     evidence on record and goes on to interpret the evidence piecemeal,

16     quoting selectively, splitting the evidence artificially and using only

17     those elements they believe can corroborate their case.

18             Particularly striking is the Prosecution's bid to describe the

19     relationship between Captain Dragan and the accused as very friendly on

20     the basis of the purported warm hug between them at the awards ceremony

21     at Kula in 1997.  I will just say this:  The purported warm hug in 1997

22     does not say anything about the relationship between Simatovic and

23     Captain Dragan in 1991, or indeed in 1992, or at any point in time later.

24     This hug may have been a sign of courtesy.  It may have been dishonest.

25     It may have been the result of a friendship that occurred or happened

Page 20342

 1     after 1996.  So this hug does not tell us anything, and we don't think

 2     that it can tell anything to the Trial Chamber or be of any assistance.

 3             In its final brief, the Prosecution analysed the participation

 4     and activities of Franko Simatovic in the events in Lovinac in 1991.  In

 5     the brief, the Prosecution is trying to establish a link between

 6     Simatovic and the events in Lovinac.  That's in paragraphs 402 through

 7     405.

 8             Well, first of all, Lovinac is in the immediate vicinity of a

 9     large JNA depot in Sveti Rok that had been blocked and the JNA was trying

10     to deblock it.  In the end, it deployed a very strong force and finally

11     managed to do that.  And in the course of that action, JNA took Lovinac

12     as described in detail in our final brief in paragraphs 223 through 226.

13             The Prosecution, however, is trying to depict the events of the

14     26th of September, 1991, based on D1473 to establish a link with

15     Simatovic.  At that time, he had not been in Knin for two months.  The

16     central source for this claim is Babic.  The Prosecution relies on

17     Babic's evidence about what Babic heard in Lovinac in September 1991 --

18     or, rather, after the events in Lovinac what he heard in a restaurant at

19     the Knin fort.  Babic testifies that he heard Simatovic boast of his

20     participation in the event in Lovinac.  That's Exhibit P1877, page 44.

21             Witness JF-039 also testifies about Lovinac but in a completely

22     different context.  Babic figures here as the source of the claims,

23     allegations about Simatovic as the key and central source that

24     Prosecution is relying on.  In addition to the fact that Babic's

25     testimony is inconsistent but it is also quite vague when it comes to

Page 20343

 1     Simatovic.

 2             At the time when Babic testified, none of the participants was

 3     interested in Simatovic at all.  Nobody tried to explain what Babic knew

 4     and what he had to say about Simatovic's role.  Quite specifically,

 5     especially if we bear in mind that Babic's description of the events in

 6     Lovinac is contradicted by Mladic's entries as to who took Lovinac, what

 7     forces were used, and what the consequences were of the capture of

 8     Lovinac.  And Babic's claims cannot be used to draw any conclusions about

 9     Simatovic's role in these events.

10             In the previous proceedings, no one asked Babic what he was

11     basing his claims on regarding Simatovic and his acts or omissions,

12     because to put it quite simply, the participants in those proceedings

13     were not interested.

14             The Prosecution fails to state how many attacks there were on

15     Lovinac.  In the case file we have evidence indicating that there was

16     fighting around Lovinac on at least three occasions in early August 1991,

17     in early September 1991, as evidenced by Exhibit P1123, and in late

18     September 1991 as shown by D1473.  It is quite obvious that on the

19     16th of September, 1991, as evidenced by Exhibit P1123, Lovinac was held

20     by the Croatian forces.  All Babic's claims that Lovinac had been taken

21     before that date, that it had been torched and looted, are simply

22     contradicted by P1123.

23             All claims made by JF-039 that the armoured truck -- train was

24     used to intimidate the population and make them leave the area are

25     likewise unfounded because the people remained in Lovinac until the

Page 20344

 1     26th of September, 1991, until the attack on the JNA Colonel Trbovic.  So

 2     at the time when Franko Simatovic had already been out of Krajina for a

 3     month, the Croatian population in Lovinac still remained there.

 4             Now, was anyone killed in early August in Lovinac?  Did anyone

 5     leave Lovinac at that time?  Were any buildings damaged on that occasion?

 6     There is simply no evidence about that in this case.

 7             The Defence would also like to highlight the issue of the

 8     armoured train and how it can be linked with Simatovic.  The Prosecution

 9     makes several references to P2673, a document that is patently

10     unauthentic.  It is quite obvious that this is the case, because it bears

11     a stamp with the Croatian chequer-board emblem.  It is hard to imagine

12     that a document that was purportedly created in Knin in June 1991 would

13     bear such a stamp with the Croatian chequer-board.

14             The Trial Chamber has heard evidence that one of the key causes

15     of the unrest that erupted in Knin in the summer of 1990 was precisely

16     the problem of the new symbols in use in Croatia, including the

17     chequer-board.  The text of the document, the dialect, the syntax clearly

18     show that the document has nothing to do with Franko Simatovic and that

19     he cannot be the author.

20             The Prosecution alleges that Franko Simatovic played an important

21     role in the events in Glina.  In the context of the crimes in SAO Krajina

22     the Prosecution mentions so-called early attacks including the attack on

23     Glina.  In paragraph 401, the Prosecution uses these arguments to show

24     that as early as in the summer of 1991, there were attacks on the

25     civilian population as a sort of an introduction to the events that are

Page 20345

 1     alleged to have happened.  The Prosecution quotes P2873 where it says

 2     that about 30 houses had been destroyed.  However, the same exhibit goes

 3     on to say in the very next sentence that the houses were strongly

 4     fortified and that casualties were caused because fire was opened from

 5     those houses.  Exhibits P2873 and P2875 clearly indicate that fire was

 6     opened on those houses in order to neutralise legitimate military

 7     targets.

 8             The Prosecution uses P2875 to prove that this was an attack on

 9     civilian buildings, but in the very same exhibit, the author states that

10     fire was opened at him from the civilian building.  The Prosecution uses

11     only parts of documents or in some cases just some parts of sentences in

12     a document and the rest of the sentence that is left out by the

13     Prosecution paint a completely different picture of the events.  The

14     evidence that is quoted by the Prosecution regarding the events in Glina

15     cannot serve as any kind of evidence and for any kind of conclusions

16     about the crimes that allegedly happened as early as in July 1991.  And

17     as alleged elsewhere in the Prosecution brief, they should have let the

18     accused know what he could expect from the units he was associated with.

19     You can see that in paragraph 747 of the final brief of the Prosecution.

20             The Defence would like to address an event that occurred at the

21     end of 1991.  Simatovic was not in Krajina at the time, but we like to

22     use it to illustrate how far the Prosecution is ready to go in its

23     efforts to establish the link between Simatovic and the crimes and events

24     that had nothing to do with him.

25             Lacking relevant and credible evidence, the Prosecution is trying

Page 20346

 1     to use each and every detail to establish this link between Simatovic and

 2     the events on the ground.  Another striking example is contained in

 3     paragraph 422 of the Prosecution brief where the Prosecution states that

 4     Nikola Medakovic commanded the unit of Martic's Police that attacked

 5     Saborsko, and that Medakovic trained in Golubic where he saw Simatovic as

 6     he trained there.

 7             Witnesses -- Witness Bosnic's statement is quoted in paragraph 72

 8     of his statement.  That's Exhibit D313.  He says he never met Simatovic,

 9     that he heard from Medakovic that this man showed up in Golubic, that he

10     showed up only once and that he was not involved in the training.  What

11     Medakovic told Bosnic, that he saw a man once and that he was told this

12     was Frenki, and the fact that Medakovic took part in the attack on

13     Saborsko several months after that conversation should serve to establish

14     some kind of a link between Simatovic and Saborsko.  The Defence

15     considers that the manner in which the Prosecution has gone about

16     establishing the link does not lend itself to any conclusions whatsoever.

17     The Prosecution alleges that a person saw Simatovic at one point and that

18     this can be used to prove that Simatovic has anything to do with Saborsko

19     and the events there.

20             To prove Medakovic's participation, Prosecution relies on P2628,

21     ignoring the contents of that exhibit which gives us the full picture of

22     who is attacking Saborsko and how.  In paragraph 426 the Prosecution

23     states that Medakovic, who saw Simatovic once in Golubic many months

24     before, that he read out the order for the attack.  However, yet again,

25     the Prosecution is citing only a part of the sentence.  It is true that

Page 20347

 1     Medakovic read out the order, but Medakovic did not read his own order.

 2     It was an order issued by the JNA General Bulat who commanded the attack

 3     on Saborsko, and this is all contained at page 4 of the Exhibit P2628.

 4     The exhibit also states that the JNA aircraft took part in the attack and

 5     that the JNA artillery from the Slunj training area also took part.

 6     Simatovic has nothing to do.  There are no direct or indirect links

 7     between Simatovic and the attack on Saborsko.  It is clear from the

 8     evidence that the Defence relies on in its brief in paragraphs 117

 9     through 133, and it is also clear from the evidence quoted by the

10     Prosecution if we look at them in their entirety.

11             We used Saborsko as a striking example of a situation where

12     Simatovic is not physically present in Krajina yet an effort is made to

13     establish a link between him and the crimes that have nothing, nothing to

14     do with him at all.  Can we establish this link in this manner?

15     Medakovic took part in the attack on Saborsko.  Months before that, he

16     saw Simatovic in Golubic.  Thus does this establish the link?  Does this

17     prove Simatovic's responsibility for the crimes?

18             The key witnesses and exhibits involved by the Prosecution in its

19     brief do not give us any idea and do not constitute proof beyond

20     reasonable doubt of the way in which Simatovic may have aided at all, let

21     alone how he may have aided the implementation of the JCE in SAO Krajina.

22     We would like to draw the attention of the Trial Chamber to the parts of

23     our brief that pertain to Franko Simatovic's departure, stay, and return

24     from the Knin Krajina.  When the Defence's evidence is compared with the

25     evidence led by the Prosecution, it becomes clear that the Prosecution

Page 20348

 1     has failed to prove the facts in issue regarding the events in

 2     SAO Krajina.

 3             In its written brief, the Prosecution spoke about the

 4     implementation of the JCE in Eastern Slavonia and the contribution of

 5     Franko Simatovic to that JCE.  The Defence will just very briefly address

 6     some of the allegation the made by the Prosecution regarding Simatovic's

 7     role and the role of the units that are associated with him in

 8     Eastern Slavonia, Baranja, and Western Srem.

 9             In their final brief, paragraph 74 and 696, the Prosecution

10     alleges that before the fall of Vukovar in 1991, Simatovic came to the

11     meeting at the command of the Guards Brigade and that he also attended a

12     ceremony to celebrate the event after the fall of Vukovar.  The sole and

13     principal evidence they rely on for this claim is the testimony of

14     JF-033.

15             And now, Your Honours, I would like us to go into private

16     session, please.

17             JUDGE ORIE:  We move into private session.

18                           [Private session]

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 20349











11 Pages 20349-20350 redacted. Private session.
















Page 20351

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22                           [Open session]

23             THE REGISTRAR:  Your Honours, we're back in open session.  Thank

24     you.

25             JUDGE ORIE:  That you, Mr. Registrar.

Page 20352

 1             MR. BAKRAC: [Interpretation] Thank you, Your Honours.  I

 2     apologise if I was in a bit of a hurry.

 3             The Prosecution uses in their brief also some elements in the

 4     insignia of various units in 1991 through 1995.  I should like to remind

 5     Your Honours that the day before yesterday, we had occasion to see a

 6     comparison between the Skorpion insignia with the emblems used by the

 7     JATD.  We can also see that in paragraphs 376 through 381 of the

 8     Prosecution final brief.

 9             The Prosecution insists on a fact that is notorious and common

10     place, that the sword is used as a symbol.  I believe all the parties in

11     the proceedings agreed on this.  Page 11145.  Also, the four Cyrillic

12     letters S can be found on almost all insignia, Serbian insignia, and coat

13     of arms.  Emblems where the sword and the four letters S are together do

14     not tell us anything about any connection between the Skorpions and the

15     SDG or any other unit.  Quite simply, those emblems were ubiquitous, and

16     these units were used by the local authorities to provide security at oil

17     fields.  That cannot be linked to the SDB of Serbia just because one of

18     their units also had a sword and the four letters S on their insignia.

19     The same applies to the emblems of the Serbian Volunteers Guard.

20             These emblems and iconography were pervasive, and this argument

21     cannot provide a basis for making any conclusions.  For the reasons

22     stated in our final brief and as we tried to point out in our closing

23     argument, the Prosecution has completely failed to prove any role of

24     Franko Simatovic in the implementation of the JCE in Croatia either in

25     the Knin Krajina or the area known as SBWS.

Page 20353

 1             With your leave, Your Honours, I would now give the floor to my

 2     colleague, Mr. Petrovic, who will deal with the implementation of the JCE

 3     in Bosnia-Herzegovina.

 4             JUDGE ORIE:  Mr. Petrovic.

 5             MR. PETROVIC: [Interpretation] Good afternoon, Your Honour.  I

 6     thank you for this opportunity to address you at this last stage of the

 7     proceedings against our client, Mr. Franko Simatovic.

 8             In his final trial brief, the Prosecution suggested and in his

 9     closing arguments explicitly stated that Arkan and the Volunteers Guard

10     went to Bijeljina and Zvornik in co-ordination with Simatovic and the

11     leadership of the Bosnian Serbs.  The Defence believes that the

12     Prosecution has failed to provide any proof for such allegations.  The

13     way and the circumstances under which Arkan and the

14     Serbian Volunteers Guard were involved in the events in Zvornik and

15     Bijeljina have been described in detail in the Defence final brief.  From

16     that we see who invited Arkan.  We see who held meetings with him, with

17     whom -- with whose units he was in co-ordinated action, with which

18     political structures he harmonised and agreed his activity.  Simatovic is

19     nowhere to be found in there.

20             Regarding Bijeljina, the Defence should like to draw your

21     attention particularly to Exhibits D84 and P1621 from which we can

22     clearly conclude that the meeting in Bijeljina with Arkan was attended by

23     Fikret Abdic, Biljana Plavsic, JNA General Prascevic, and JNA General

24     Savo Jankovic, at that time commander of the JNA Tuzla Corps. At this

25     meeting there was nobody from the DB of Serbia.

Page 20354

 1             The Defence particularly emphasises the testimony of the witness

 2     whom we cited in our brief in the chapter concerning Arkan and the SDG in

 3     Zvornik 1992.

 4             Defence Witness Dimitrijevic described in detail how

 5     Biljana Plavsic invited Arkan to Bijeljina, describes the co-operation

 6     between Arkan and the JNA during this operation.  Transcript pages 16347

 7     through 16349.

 8             That the testimony of Dimitrijevic was truthful and authentic is

 9     also shown by the evidence provided by the Prosecution Witness JF-025,

10     who confirmed before this Trial Chamber that there was a meeting between

11     Biljana Plavsic and Arkan in Bijeljina.  Transcript page 6285.

12             Biljana Plavsic herself states in Exhibit D52 that she personally

13     directed the events in Bijeljina.  From this exhibit, we clearly see the

14     relationship and the role of Arkan and Plavsic in these events.  Nobody

15     mentions Simatovic, nor is he present at any meeting, agreement, or

16     activity before, during, or after the fall of Bijeljina.

17             The part of their brief that relates to Zvornik, the Prosecution

18     begins with the heading "The accused have sent Marko Pavlovic to

19     Zvornik."  Under that heading, however, there is nothing in the text that

20     makes it clear how exactly the accused sent that person to Zvornik.  It

21     is said that Pavlovic was a member of the DB.  The cited source is the

22     testimony of JF-026, but when we analyze that evidence, we do not find

23     anything to confirm that Pavlovic was a member of the state security.

24     The only thing mentioned is the connection between Pavlovic and Kostic.

25             What exactly was the connection between Pavlovic and Kostic is

Page 20355

 1     something we have no information about.  We also have no information

 2     about any connection between Simatovic and Kostic.  So although the

 3     Prosecution suggests in the very heading that Simatovic is somehow linked

 4     with Pavlovic's arrival in Zvornik, when they try to substantiate it,

 5     they fail completely.

 6             At this point and in many other places, the Prosecution is simply

 7     trying to identify Simatovic with one entire service.  The Defence have

 8     in their brief described in detail the position and the role of Simatovic

 9     in the service.  Any responsibility Simatovic might bear can only be

10     weighed in the context of his position in the service in which he worked

11     at the relevant time.

12             Now, Your Honours, could we briefly go into private session.

13             JUDGE ORIE:  We move into private session.

14                           [Private session]

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 20356











11 Pages 20356-20357 redacted. Private session.
















Page 20358

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6                           [Open session]

 7             THE REGISTRAR:  Your Honours, we're back in open session.  Thank

 8     you.

 9             JUDGE ORIE:  Thank you, Mr. Registrar.

10             MR. PETROVIC: [Interpretation] When a group of volunteers of the

11     Serbian Radical Party arrived by JNA helicopter in the area of

12     Batkusa village, JNA Colonel Nikolic decided to include these people into

13     the 17th Tactical Group of the JNA.  Colonel Nikolic is the one who

14     issues orders to this group, as we can see from P1413.  Nikolic orders

15     this group also on the day of the killings in Crkvina.  Colonel Nikolic

16     issues orders also the day after the killings in Crkvina to the same

17     group led by Lugar.  The group that included Djordjevic and Radovanovic

18     reports regularly on their activities to the command of the

19     Eastern Bosnia Corps.  We have in the case file as many as five documents

20     showing that.  However, there is absolutely no evidence that this group

21     ever reported to the DB of Serbia.

22             The evidence in the case file plainly shows that Djordjevic was

23     acting on the instructions he received from the command of the JNA

24     air force.  General Bajic is involved in bringing Djordjevic to Samac.

25     General Bajic decides whether Djordjevic should be sent back to Serbia.

Page 20359

 1             In December 1992, Mladic notes down Todorovic's words that he

 2     knew Colonel Jeremic and General Bajic and that it was with their

 3     mediation that he had sent men for training and that they returned to the

 4     area of Samac together with 30 volunteers from Kragujevac.  We can see

 5     that in Exhibit P3117.

 6             Todorovic, according to the Mladic diaries, never mentioned the

 7     DB of Serbia or Simatovic.  If Simatovic had had any important role in

 8     these events, there would be no reason for Todorovic not to mention it

 9     and no reason for Mladic not to note it.  The Defence refers to our

10     detailed arguments in paragraphs 1137 through 1213.

11             There is a wealth of documents about these events and the players

12     involved in the area of Samac.  The totality of these documents point to

13     the unequivocal conclusion that the events in Samac pursued a dynamic

14     that Simatovic had no influence over.  And finally, even if it were true

15     that Simatovic was present when that group of 20 men was leaving by JNA

16     helicopter to Samac, the events in this town involved TO and JNA units

17     with hundreds of fighting men, machinery, artillery, organisation, and

18     logistics which make the participation of 20 men symbolic and minor.

19     That is the only participation that Simatovic could have, if any, in

20     these events, minor, peripheral, and insignificant from the point of view

21     of the course and outcome of these events.

22             I am looking at the clock, Your Honours.  Perhaps it is time for

23     the break.

24             JUDGE ORIE:  Yes.  Could you tell us where you are approximately,

25     Mr. Petrovic, in terms of time.

Page 20360

 1             MR. PETROVIC: [Interpretation] Your Honours, I believe we will

 2     manage to conclude within the time granted us.  If my math is correct,

 3     that would be between 30 and 35 minutes.

 4             JUDGE ORIE:  Yes.  I agree with your math.

 5             We take a break.  Would it be wise to take the break five minutes

 6     shorter than usual so that we are not ending up in either -- I mean, the

 7     Defences -- the two Defence are the last to use the one hour left, and I

 8     think I would be hesitant to cut it short, or, on the other hand, to rely

 9     on the voluntary co-operation of all those assisting us.  They have

10     children at home as well, which they may have to fetch and so I suggest

11     that we take exceptionally a five-minute shorter break and we will resume

12     at five minutes to 4.00.  And that you would then finish, Mr. -- the

13     Simatovic Defence would finish anywhere between 4.25 and 4.30.

14             We take a break and we resume at 5 minutes to 4.00.

15                           --- Recess taken at 3.29 p.m.

16                           --- On resuming at 3.56 p.m.

17             JUDGE ORIE:  Mr. Petrovic, please proceed.

18             MR. PETROVIC: [Interpretation] Thank you, Your Honour.

19             As our closing arguments continue, I would like to address very

20     briefly the events in Doboj, some aspects of those events, in the year

21     1992.  In this context, the Prosecution alleges that Simatovic visited

22     Ozren several times, and in doing so relies on the evidence of

23     Witness JF-005.

24             Now, in order to deal with the testimony of that witness,

25     Your Honours, I would like to move into private session.

Page 20361

 1             JUDGE ORIE:  We move into private session.

 2                           [Private session]

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 20362

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24                           [Open session]

25             THE REGISTRAR:  Your Honours, we're back in open session.  Thank

Page 20363

 1     you.

 2             MR. PETROVIC: [Interpretation] In their final brief, the

 3     Prosecution lists --

 4                           [Trial Chamber and registrar confer]

 5             JUDGE ORIE:  We are in open session.  Please proceed.

 6             MR. PETROVIC: [Interpretation] In their final brief, the

 7     Prosecution lists three events that should convince the Trial Chamber

 8     about the existence of the intent on Simatovic's part in relation to the

 9     events that he's charged with.  These three events should provide the

10     basis for the existence of this intent through direct reference to what

11     he said and what he did.  In this context, the Prosecution draws our

12     attention to the events in Lovinac - we've already addressed that - in

13     Vukovar, ditto, and the events in Eastern Bosnia in the first half of

14     1993.

15             If we're talking about the events in 1993 in Eastern Bosnia, we

16     are talking about an operation that was code named Strike, Udar.  In the

17     final brief, in the part under the heading "VRS under Mladic, VJ and

18     Simatovic" planned and carried out operations in Eastern Bosnia in line

19     with the JCE, paragraphs 133 through 136 of the final brief lists its

20     conclusions regarding this operation, Operation Strike.  As I've already

21     noted, this operation is again invoked in the part of the final brief

22     where they talk about Simatovic's intent to implement the joint criminal

23     enterprise.  The heading is Simatovic personally took part in the

24     planning of Operation Strike and the exercise of command of the units in

25     this operation.  That's paragraph 698.

Page 20364

 1             The Prosecution allegations regarding Operation Strike is a very

 2     good example of how the Prosecution embarks on a fishing expedition,

 3     searching for any kind of evidence against Simatovic using fragments of

 4     evidence, interpreting them out of context, exaggerating their importance

 5     and presenting them as evidence that should create an impression of a

 6     general pattern of conduct.  The Defence has dealt with Operation Strike

 7     in its final brief in paragraphs 1058 through 1059, but we would now like

 8     to respond to some of the arguments presented by the Prosecution.

 9             The very heading of the two sections of the final brief indicate

10     that the Prosecution wants to suggest that Simatovic planned and carried

11     out the operation hand-in-hand with Mladic and the VJ.  The evidence

12     shows that the opposite was the case.  In the analysis of combat

13     operations in Operation Strike, that's P3118, states that

14     Operation Strike was carried out on the basis of a combat order issued by

15     the VRS Main Staff on the 15th of February, 1993.  The Drina Corps issued

16     it's own combat order on the 12th of February, 1993, and a preliminary

17     order issued on the 20th of February, 1993, shows that the plan for

18     Operation Strike had been drafted before that time.  All the other orders

19     that were issued within the framework of this operation were drafted

20     several weeks after the meeting that was allegedly attended by Simatovic,

21     and it is very difficult to establish a link between them and the

22     discussions at the meeting.

23             Likewise, Exhibit P3118 specifies who controlled

24     Operation Strike, lists all the forces that were deployed, and we can see

25     that those forces came from the Drina Corps, and there is a separate list

Page 20365

 1     of the forces that were not part of the Drina Corps but took part in the

 2     operation.  If we look at this exhibit, we can see that Simatovic is not

 3     there, and we cannot see any evidence of any unit that would directly or

 4     indirectly be linked with him.  A detailed order of the Drina Corps for

 5     Operation Strike is dated the 12th of February, 1993, and is also on

 6     record as Exhibit P3085.  This exhibit also shows when the plans were

 7     made, who made the plans, which units took part in the operation, and in

 8     what positions.

 9             Finally, Prosecution Witness Manojlo Milovanovic as the highest

10     ranking and, indeed, the only VRS officer to testify at this trial states

11     that he knew that Operation Strike had been planned but that it had never

12     been carried out.  I would like to refer you to transcript pages 4437

13     through 4438.

14             Thus the Prosecution has in front of it an entry from Mladic's

15     diary stating that Simatovic attended a meeting.  If you look at the

16     original of the entry, you can see that Simatovic's name was added

17     subsequently to the entry that pertains to the 28th of February, 1993.

18     You can see that from the way in which his name and the names of two

19     other persons is inserted between two lines in this entry.

20             Simatovic did not say anything at the meeting.  We don't know why

21     he came.  We don't know how long he remained there.  All this is

22     immaterial for the Prosecution.  The Prosecution indeed interprets

23     Simatovic's presence there as evidence that he took part in the planning

24     and as proof that VRS was under Simatovic's command.  Evidence can be

25     interpreted in any number of ways.  It can be interpreted in various

Page 20366

 1     contexts, but facts that do not exist cannot become evidence that merits

 2     any kind of discussion.

 3             Evidence of Operation Strike on record is complete, including

 4     Milovanovic's testimony, which is also there.  Any effort to squeeze in

 5     Simatovic in some kind of a role is not based on the evidence.

 6             Now I would like very briefly to say something about -- something

 7     that the Prosecution used as a motto of some sort for the closing chapter

 8     of its final brief.  In the brief dealing with the crimes in

 9     Bosnia-Herzegovina, the Prosecution uses Seselj's statement made at the

10     time while the war was still going on, paragraph 486 of the Prosecution's

11     brief.  At the time when he made the statement, Seselj was in political

12     conflict with Milosevic, and everything that Seselj said at the time was

13     fruit of his political propaganda.  Seselj is on trial before this

14     Tribunal for his actions from that time, and he is in the UN detention

15     unit and is accessible to the Prosecution.  However, the Prosecution did

16     not call Seselj as its witness.  If it really believes that Seselj

17     credibly and truthfully describes the events, that would be the only and

18     logical way to proceed, but the Prosecution prefers to use fragments of

19     Seselj's political propaganda, of his tirades and the night that he made

20     in the 1990s and wants the Trial Chamber to trust what Seselj is saying.

21     The Prosecution quotes what Seselj has said in a documentary series, "The

22     Death of Yugoslavia," six times.  Not only does the Prosecution quote

23     Seselj, Seselj's words are used as a motto of a whole chapter in the

24     Prosecution brief, and this chapter contains 43 pages.

25             The Prosecution objected to Seselj's statements being admitted

Page 20367

 1     into the case file, and we still believe that Seselj's statement from the

 2     1990s cannot be used as a basis for any relevant conclusions in the

 3     context of this case.

 4             Seselj wrote hundreds of books, many of them while in detention,

 5     and many claims he made in those books are questionable, to say the

 6     least, in terms of their reliability and truthfulness and cannot be used

 7     in these proceedings or indeed any other proceedings.

 8             Now I would like us to move into private session, Your Honours.

 9             JUDGE ORIE:  Before we do so, Mr. Petrovic, I think you referred

10     us to paragraphs 1058 and 1059 for Operation Udar, Operation Strike.

11     Now, I do not find even one reference in those paragraphs in your final

12     brief, because that's what we're talking about, isn't it?

13             It is -- the heading is "Simatovic in Bajina Basta," and that's

14     before 1057, and then we move to 1058 and 1059.

15             MR. PETROVIC: [Interpretation] Just a moment, Your Honours.  Let

16     me just have a look.  As we respond to the Prosecution's arguments, I

17     will use one sentence to explain that.  It may have been a typo or

18     something like that.  I don't have it now.

19             JUDGE ORIE:  Yes.  We're trying to -- to find all the references

20     you're making.  If you could assist us at a later stage that's

21     appreciated.  Please proceed.  And I think you wanted us --

22             MR. PETROVIC: [Interpretation] Thank you very much.

23             JUDGE ORIE:  You wanted us to turn into private session.  And we

24     are close to the time, well, let's say five to eight minutes where you're

25     supposed to conclude.  Please proceed.  If I said five to eight, that's

Page 20368

 1     perhaps -- it is, I would say 8 to 12.  Please proceed.

 2             MR. PETROVIC: [Interpretation] Thank you.

 3                           [Private session]

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 20369











11 Page 20369 redacted. Private session.















Page 20370

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17                           [Open session]

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

19             JUDGE ORIE:  Thank you, Mr. Registrar.

20             MR. PETROVIC: [Interpretation] Thank you, Your Honour.  Now I

21     would like to say a few words about the so-called payroll lists.  There

22     are dozens of JATD payroll lists in the case file in this case, and out

23     of all of those payroll lists only five are signed by Simatovic.  In each

24     of these documents, it is clearly stated that Simatovic signed them for

25     deputy commander Milan Radonjic.  Had Simatovic really been the JATD

Page 20371

 1     commander, as the Prosecution alleges, there is no reason why he would

 2     want to conceal this fact in an internal document of the service in 1994

 3     and 1995.  It is a notorious fact that a commander would not sign a

 4     document instead of his deputy using the formula "for" in the signature

 5     block.

 6             Finally, we would like to conclude our closing argument by saying

 7     this:  All the arguments presented today in court and yesterday in court

 8     and in our final brief paint a clear picture of the position and role

 9     that Simatovic had in the relevant time in light of the indictment.  The

10     Prosecution is trying to prove -- or to prove that Simatovic had

11     discriminatory intent, trying to portray Simatovic as a man fighting for

12     a Greater Serbia without other nations and peoples, as a man who destroys

13     and expels all those who are not Serb.

14             The Prosecution is trying to attribute this to a man whose family

15     has deep rots in Croatia, whose relatives lived in Croatia during the war

16     and who still live there.  The Prosecution is trying to attribute this to

17     Simatovic, a man who never said or did anything against any other man,

18     other state, or other nation.

19             Every action Simatovic took was taken in line with the rules of

20     the service that he belonged to with the laws and the constitution of the

21     country in which he lived.  Simatovic was an intelligence agent, and

22     intelligence work requires people to go abroad, calls for contacts with

23     all sorts of people.  You have to be close to the events.  You have to

24     establish your intelligence contacts and networks.  All these activities

25     are defined by the rules of the service and Simatovic never deviated from

Page 20372

 1     them.  Simatovic did not commit a single crime.  Simatovic did not aid in

 2     the commission of a single crime.

 3             Your Honours, the Defence is convinced that there's every reason

 4     for this Trial Chamber to acquit Simatovic and believes that the

 5     Trial Chamber will do so once it has looked at all the arguments

 6     presented by the Defence in the final brief and in our closing arguments.

 7             Thank you very much, Your Honours.

 8             JUDGE ORIE:  Thank you, Mr. Petrovic.

 9             Before we continue, could I ask to go into private session for a

10     second.

11                           [Private session]

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22                           [Open session]

23             THE REGISTRAR:  Your Honours, we're in open session.

24             JUDGE ORIE:  Thank you, Mr. Registrar.

25             Mr. Groome.

Page 20373

 1             MR. GROOME:  Your Honour, Ms. Maxine Marcus will present the

 2     Prosecution's submissions in rebuttal.

 3             JUDGE ORIE:  Yes.  And it has been scheduled for one hour.  I

 4     would say that you use 45 minutes, that we then take a break, and then

 5     you reserve your last 15 minutes for after the break.

 6             MS. MARCUS:  I'll do my best, Your Honour.  Thank you.

 7             JUDGE ORIE:  We will be very strict on time, so I appreciate that

 8     you do your best Ms. Marcus, but it's the result that counts primarily.

 9     Please proceed.

10                           [Prosecution Rebuttal]

11             MS. MARCUS:  Your Honours, good afternoon.  This afternoon I will

12     correct some misrepresentations made by Defence counsel during their

13     closing submissions.  I will correct their submissions on matters of

14     corroboration.  I will challenge their closing assertions regarding the

15     Kula ceremony and the evidence of JF-039.  I will correct their closing

16     misrepresentations regarding the evidence of the relationships between

17     key JCE members and the accused.  I will respond to their ineffective

18     attempt, yet again, to challenge the sufficiency of the pleadings, and

19     finally I will respond to their submissions regarding mens rea.  I also

20     have a few slides to accompany my submissions.

21             The Stanisic Defence argues at transcript 20298 that intercept

22     P671 is obviously a forgery because the audio of that intercept does not

23     exist.  The Prosecution seeks to remind Your Honours that the Chamber has

24     admitted the corresponding monitor note as P716 which is a

25     contemporaneous record that the monitors prepared at the time that the

Page 20374

 1     conversation was recorded.  The monitor note appears on the same page as

 2     another admitted intercept, P670, for which the audio does exist, and the

 3     content of which is consistent with and related to the content of P671.

 4     This demonstrates the authenticity of the monitor note and attests to the

 5     reliability of the intercept.

 6             At transcript 20290 to -91, the Stanisic Defence argue that

 7     according to JF-032, Bogunovic should have been at the meeting in Dalj

 8     with Stanisic, but that Bogunovic did not confirm that evidence.  Upon

 9     review of the evidence, however, it is clear that JF-032 never said that

10     Bogunovic was there.  JF-032 testified that a policeman named

11     Borislav Bogdanovic was one of the police officers who were with him when

12     Stanisic arrived.  That's at transcript 4757.  When the Stanisic Defence

13     later suggested to JF-032 in cross-examination that Borislav Bogunovic

14     had been there, his answer was that he did not remember

15     Minister Bogunovic being present.  That's at transcript 4760.  I also

16     refer Your Honours to transcript page 4758 where the Prosecution pointed

17     out to Defence counsel that the witness had spoken about a Bogdanovic and

18     not a Bogunovic and he acknowledged and accepted this correction.

19             I will now discuss the matter of corroboration raised by the

20     Defence in their closing.

21             The Stanisic Defence has argued that the Prosecution relies on

22     the Mladic notebooks without corroboration which "is likely to create the

23     conditions for a miscarriage of justice."  That's at page 20271.  The

24     Mladic notebooks are not a special class of evidence that require special

25     corroboration but must be individually weighed and assessed by the

Page 20375

 1     Chamber like all evidence.  I refer the Chamber to its decision admitting

 2     the notebooks on the 10th of March, 2011, which declines to require

 3     corroboration for admission and sets forth several factors showing the

 4     notebooks to be reliable.

 5             On slide 26 of their closing arguments, the Defence cited to the

 6     Prosecution's statement on the 21st of March of 2012 that the Prosecution

 7     had tendered only portions of the notebooks that we believed to be

 8     corroborated by other evidence before the Chamber.  The Prosecution's

 9     argument regarding the reliability of the excerpts that we tendered did

10     not create a new higher burden for these pieces of evidence.  Can I

11     please have slide 2.

12             Regardless, the Mladic notebooks are well corroborated and

13     slide 2 sets forth some of the corroborating evidence for the first three

14     items challenged by the Defence's slide 28 as examples.  Stanisic takes

15     an extremely narrow view of the meaning of corroborative evidence both in

16     the context of the Mladic notebooks where corroboration is not specially

17     required as well as in the context of 92 quater evidence.

18             Taking the first example on slide 2, P3215 and P3216 are excerpts

19     from notebooks from the latter half of 1991.  They are cited in the brief

20     for the proposition that Mladic had the number for Golubic from 1991.

21     The notebooks are corroborated by other evidence of phone numbers that

22     match the phone numbers in the Mladic notebooks and by other evidence

23     that Golubic was relevant to Mladic at the time.  Obviously neither of

24     those pieces of corroborating evidence would be cited in our brief for

25     the fact that Mladic had the Golubic phone number, but the corroborative

Page 20376

 1     evidence makes this fact all the more reliable.  Slide 28 of the Defence

 2     closing lists 18 examples of propositions in the Prosecution's brief that

 3     cite exclusively to the Mladic notebooks.  This same analysis I have just

 4     done can also be done for each of those examples, and in many cases the

 5     corroboration is found in the same or in adjacent paragraphs.

 6             Slide 3, please.

 7             On the matter of corroboration of 92 quater evidence, I refer the

 8     Chamber to the decision on appeal against the Martic's Trial Chamber's

 9     decision on the evidence of Witness Milan Babic.  That is dated the

10     14th of September, 2006, in paragraph 22 which states:

11             "Evidence which has not been cross-examined and goes to the acts

12     and conduct of the accused or is pivotal to the Prosecution case will

13     require corroboration if used to establish a conviction."

14             I note for the Chamber also the decision of the Appeals Chamber

15     in the Prlic case dated 23 November 2007 at paragraph 59.

16             I will now turn to the corroboration of JF-039.  Throughout their

17     submissions yesterday and today both Defence teams claimed that the

18     Prosecution is asking the Chamber to take a partial view of the evidence.

19     In fact, it is the Defence that wishes Your Honours to take a partial

20     view of the evidence, particularly when it comes to the corroboration of

21     Prosecution witnesses.  JF-039 is very solidly corroborated.  For

22     example, we heard a lot yesterday about how laughable was JF-039's

23     testimony about the close relationship between Stanisic and Martic.  But

24     Your Honours, Jovica Stanisic's name is the first name on P428, a list of

25     persons receiving awards from the RSK MUP for demonstrated bravery,

Page 20377

 1     self-sacrifice, or exceptional contribution to the RSK internal affairs

 2     services.

 3             C-015 testified that Martic referred to Stanisic as his "only and

 4     first commander" at transcript 1624.  Other exhibits such as P995, P12,

 5     and P2667 also corroborate JF-039 on this point.

 6             If the Chamber takes the Defence at their word and views the

 7     evidence as a whole, it will find that JF-039 is well corroborated by

 8     independent evidence.

 9             We don't have time today to go into every aspect of JF-039's

10     evidence but he is equally well corroborated on other points.  For

11     example, his evidence about the relationship between the DB and

12     Captain Dragan is corroborated by P61, P3251, P1069, P1186, and P2976 as

13     well as other evidence.  He is also corroborated by Babic.  Babic and

14     JF-039 viewed events from their respective positions, and their

15     opportunities to observe events and people varied as well; yet they are

16     remarkably consistent.  Even the supposed contradiction between Babic and

17     JF-039 yesterday asserting that Babic was completely unaware of

18     arrangements between Martic and Stanisic prior to March 1991 is

19     inaccurate.  That's at page 20274 and -75.

20             Babic was certainly aware that Martic and Stanisic were meeting

21     together in August 1990, because Babic met Martic and Stanisic together

22     at a cafe between Knin and Golubic at that time.  That's P1877, pages 96

23     to 98, and pages 56 to 59.  I'm sorry.  The second page refers to

24     Exhibit P1878, pages 56 through 59.

25             He also knew that Martic received weapons and the Knin police

Page 20378

 1     station distributed weapons from August 1990.  He testified that some of

 2     the same people who brought weapons to Martic in 1990 later distributed

 3     weapons they had obtained through Stanisic.  That's P1878 at page 40 and

 4     page 149.  Moreover, Babic's testimony reveals that when he met Milosevic

 5     in March of 1991, it became apparent that Milosevic, Bogdanovic, and

 6     Stanisic had already been involved in sending weapons to the Krajina

 7     without Babic's knowledge.  Bogdanovic told him, You don't have to know

 8     everything.  That's P1878, pages 153 to 154.

 9             JF-039's and Babic's different levels of knowledge about these

10     events simply reflects their different positions and different

11     relationships.  It is certainly not evidence of perjury.

12             I will now respond to submissions made regarding the Kula

13     ceremony.  Slide 4, please.

14             Your Honours, the Defence continue to maintain that the Kula

15     award ceremony was an elaborate ruse intended to impress Milosevic.  This

16     argument is nonsense as is clearly shown by the fact that the ceremony

17     continued after Milosevic left.  At 41 minutes and 42 seconds of P61,

18     Milosevic gets into a large black Mercedes and drives off.  What happens

19     after that?  There are no congratulations to each other at the

20     performance for Milosevic.  The ceremony continues as before with perhaps

21     a bit less formality.

22             Stanisic gives Captain Dragan an award and he says he is proud to

23     present it.  He and Simatovic both embrace Captain Dragan.  Opacic

24     salutes Stanisic, who then gives him an award.  Stanisic then gives a

25     brief speech recognising Opacic for his heroism in the Knin area and also

Page 20379

 1     another member from the Banija area.

 2             Your Honours, Milosevic is gone.  Nothing that is happening at

 3     this point in the ceremony could possibly be for his benefit or to

 4     impress him.  Nevertheless, what happens after Milosevic leaves is

 5     completely consistent with what happened while he was there.

 6             We heard Defence counsel yesterday at page 20299 attempt to

 7     dismiss the accused's embrace of Captain Dragan by paraphrasing

 8     Frank Sinatra:  A kiss is but a kiss.  A hug is but a hug.  It was a

 9     clever device designed, no doubt, to diminish with honour the

10     significance of this event -- of this evidence, but when Stanisic warmly

11     embraces a man whose activities and intentions he claims to have been

12     suspicious of, when Simatovic warmly embraces a man he claims he never

13     had any contacts with, a hug is not just a hug.

14             Your Honours, the next part of my submission will discuss the

15     relationship between the accused and key JCE members.  Slide 5, please.

16             I will start with the relationship between Stanisic and Karadzic.

17     The Stanisic Defence seemed to suggest yesterday that the Prosecution's

18     case about the relationship between Karadzic and Stanisic rested entirely

19     on intercepted conversations from before the war.  This ignores

20     Exhibit P2532, the record of the meeting in Belgrade in December 1993 at

21     which Stanisic asks Karadzic how Serbia could help him and Karadzic then

22     evaluated the progress of the war in terms of the six strategic goals.

23     And, Your Honours, despite the Defence's repeated arguments that Mladic

24     was somehow attempting to incriminate Stanisic with his notebooks, the

25     fact is this meeting really occurred.  Your Honours heard evidence from

Page 20380

 1     someone who attended it.  General Milovanovic confirmed that this meeting

 2     occurred and confirmed the details of this notebook entry in some detail

 3     at transcript pages 15445 to 15448.  It's because of Milovanovic that we

 4     know that the meeting took place at the DB building.

 5             Simatovic also unconvincingly attempts to minimise his

 6     relationship with Karadzic.  They emphasise that P693 is the only

 7     recorded conversation between Simatovic and Karadzic and they ask

 8     Your Honours to conclude based on that that it was not a close

 9     relationship.  That's at transcript 20323.  But this intercept shows that

10     Simatovic and Karadzic knew each other, had close personal regard for

11     each other, and viewed themselves as being engaged in a common project.

12     I refer Your Honours to paragraphs 115 to 117 of our final brief and

13     transcript page 11055 for more on this intercept.

14             Similarly, the Simatovic Defence takes an unduly restrictive view

15     of the relationship between Mladic and Simatovic, emphasising that there

16     is evidence of them attending just two meetings together.  This argument

17     also made today at transcript -- temporary transcript page 31 ignores the

18     importance of one of those meetings, the one regarding Operation Udar

19     recorded in P392.  That meeting was attended by the top leadership of the

20     VJ and the VRS and concerned a major military operation in Eastern Bosnia

21     that was part of a larger VRS plan to drive out the Muslim population

22     from that region as set out in the third strategic goal.  I refer the

23     Chamber to paragraphs 133 to 137 of our brief.

24             The fact that Mladic and Simatovic attended this meeting together

25     clearly shows that they shared this common goal.  I would note that the

Page 20381

 1     participation of Simatovic and the Red Berets in this operation is

 2     established by the evidence that I cited in slide 2 of the rebuttal

 3     slides.

 4             Simatovic has made several attempts to deny responsibility for

 5     crimes, arguing that he was not physically present, first in the Krajina,

 6     yesterday first at 20325 to -6, and then today at temporary transcript

 7     page 15.  As the Chamber noted in its decision to admit Simatovic's

 8     passport on the 5th of July, 2012:

 9             "The Prosecutor does allege that the accused physically and

10     personally committed any of the crimes he has been charged with.  In

11     other words, it is not necessary for the accused to have been physically

12     present in the region where the crimes were committed in order to be

13     criminally responsible for them."

14             A few words about the Simatovic Defence claims in their

15     submissions today.

16             In their final brief, the Simatovic Defence stated:

17             "The foregoing evidence shows clearly and beyond doubt that

18     Daniel Snedden, aka Captain Dragan, had no contacts or connections with

19     the Serbian DB."

20             That is paragraph 295.

21             During their submissions today, they appear to accept that

22     Simatovic did meet with Captain Dragan in April 1991 as outlined in

23     P3251.  Of the meeting, they said it is "quite obvious that this is an

24     interview between an operative and a person they were investigating."

25     That is today's transcript at page 6.

Page 20382

 1             What they did not explain is how a claim of no contact or

 2     connections between Dragan and Simatovic is consistent with an obvious

 3     record of an interview between Captain Dragan and Simatovic.  They also

 4     claimed that we were selectively quoting Captain Dragan's words in P2976,

 5     the unit video, and that Captain Dragan was probably being ironic when he

 6     described his relationship with Simatovic as a kind of friendship.

 7     According to the Defence, "he's talking about a relationship that can be

 8     interpreted in way number of ways."  That was today's transcript at

 9     page 8.

10             I would just remind Your Honours of another thing that Dragan

11     says in P2976.  He says:

12             "The unit existed at all times formally or informally, whether

13     with 15 people in it or 300 at the end.  I commanded the unit in one

14     period, Frenki in another, Legija in yet another, but the unit existed at

15     all times."

16             That's P2976 at page 17.  Your Honours, this is not a

17     relationship that can be interpreted in any number of ways.  Simatovic

18     and Dragan co-operated in the establishment, training, and command of a

19     special unit.

20             Regarding P2673, the armour train document.  The Defence's

21     arguments are strained and unpersuasive.  They rely first on the language

22     claiming that the document is written in the Ijekavian dialect which

23     Simatovic would not have used.  Leaving aside the question of whether

24     that is accurate or not, Simatovic could certainly have approved and

25     signed the document without having typed every word himself; arguably,

Page 20383

 1     that would be nor likely.  The Simatovic Defence also rely on the stamp

 2     of P2673 in which they see a chequer-board.  While one Simatovic Defence

 3     witness, DFS-14, described the stamp as containing a chequer-board, a

 4     Stanisic Defence witness gave what we submit is far more accurate

 5     evidence about the smudge at the bottom of the page.  When asked by the

 6     Simatovic Defence whether he saw a chequer-board in the stamp, Witness

 7     Mile Bosnic said, "You mean these blots here?"  He then says, "I can't

 8     make out anything at all."  That's at transcript page 12879.  These blots

 9     are no basis on which to dismiss the document.

10             Your Honours, a few words about notice.

11             Slide 6, please.  This particular challenge to the sufficiency of

12     the pleadings in this case which is raised by the Stanisic Defence in

13     their final trial brief and now in their closing submissions was already

14     sensibly decided by the Pre-Trial Chamber in this case in 2003 and in

15     2006.  Although the Defence tried to reargue this matter of the

16     sufficiency of the pleadings in 2009 and again in 2012, all motions on

17     this particular matter were denied or deemed to have been already fully

18     litigated.  The Defence argued in 2003 that the allegations against the

19     accused in the first indictment suggest they were sufficiently proximate

20     to the underlying crimes in the instant case so as to oblige the

21     Prosecution to list in the indictment all the names of the members of the

22     groups in the indictment.  The Pre-Trial Chamber rejected that argument

23     stating:

24             "Neither Stanisic nor Simatovic are alleged to have physically

25     committed the crimes charged personally."

Page 20384

 1             They are charged with comission through a JCE and other modes of

 2     liability.  The names of the members of the group were held to be

 3     evidence and not material facts and the first indictment was found to be

 4     sufficiently specific on the matter of the inclusion of groups rather

 5     than names.  I refer Your Honours to the decision on the Defence

 6     preliminary motions of 14 November 2003, pages 3 to 4.  The Defence did

 7     not seek certification to appeal.

 8             In 2006, when the Defence challenged the sufficiency of the

 9     Trnovo charges in the Second Amended Indictment asserting, inter alia,

10     that the individual identities of the Bosnian Serb forces who handed over

11     the Trnovo victims to the Skorpions are material facts.  They were denied

12     on this issue on the same grounds, that the names are a matter of

13     evidence.  That was on the 12th of April, 2006.  The Defence did not seek

14     certification to appeal that decision.

15             In 2009 when the Defence filed and untimely challenge to the

16     sufficiency of the third amended indictment, inter alia, on the pleading

17     of physical perpetrators that motion was denied for lack of good cause

18     for its untimeliness.  Their motion was filed on the 2nd of November,

19     2009.

20             The Defence did not seek certification to appeal that decision.

21             In their 2012 motion for exclusion of this evidence, inter alia,

22     on the grounds that the indictment was not sufficiently specific, the

23     Chamber held that the form of the indictment matter had already been

24     fully litigated.  That's a decision of this Chamber on the

25     15th of August, 2012, at paragraph 11.  Certification to appeal that

Page 20385

 1     decision was denied.

 2             The Pre-Trial Chamber's decisions in 2003 and 2006 on this issue

 3     were correct according to the jurisprudence.

 4             It is well established, Your Honours, that an indictment is

 5     required to plead the material facts upon which the Prosecution relies

 6     but not the evidence by which those material facts are to be proved.  I

 7     refer Your Honours to the Furundzija Appeal Judgement, paragraph 147, the

 8     Kupreskic Appeal Judgement, paragraph 88, and the

 9     Kvocka Appeal Judgement, paragraph 27.

10             According to the Kvocka Appeal Judgement in paragraph 28 and the

11     Kupreskic Appeal Judgement in paragraph 89 the materiality of a

12     particular fact depends upon:

13             "The Prosecution's characterisation of the alleged criminal

14     conduct and the proximity of the accused to the underlying crime."

15             The 2003 and 2006 decisions of the Pre-Trial Chamber in this case

16     found the pleadings to be sufficient.  They found the names of physical

17     perpetrators to be a matter of evidence, not material facts.  They did

18     not rest their decisions on the facts of other cases raised by the

19     Defence in their submissions.  They rests their decisions on the facts of

20     this case.

21             Prior decisions on this ground have thus failed and their

22     last-minute attempt in their closing submissions to persuade the Chamber

23     to reconsider these decisions should also fail.

24             At transcript page 38 today, the Simatovic Defence claimed:

25             "It is a notorious fact that a commander would not sign a

Page 20386

 1     document instead of his deputy using the formula 'for' in the signature

 2     block," attempting to downplay the significance of Simatovic's signature

 3     on the payment lists.  Defence Witness Micic testified that this was not

 4     the case, that in the DB, he "always put the word 'za,'" meaning "for,"

 5     "whether it was my superior or my subordinate that I was signing for."

 6     That's at transcript 19868.  A few final responsive words about mens rea,

 7     Your Honours.  May I please request private session.

 8             JUDGE ORIE:  We move into private session.

 9                           [Private session]

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 20387











11 Page 20387 redacted. Private session.















Page 20388

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12                           [Open session]

13             THE REGISTRAR:  Your Honours, we're in open session.

14             JUDGE ORIE:  Thank you, Mr. Registrar.

15             MS. MARCUS:  Your Honours, the Stanisic Defence spent many words

16     yesterday trying to demonstrate that Mr. Stanisic's actions show that he

17     did not have the intent to commit the charged crimes.

18             The Stanisic Defence seeks to present Mr. Stanisic as a

19     peacemaker.

20             If only it had been, as asserted by the Stanisic Defence, the

21     intent of Mr. Stanisic to "be in contact with the leadership to advance

22     peace," to engage in "quiet diplomacy," and to "ameliorate the pain and

23     suffering."  If only his intent had not been criminal.  Just imagine of

24     if a man of that character, influence, and fame, as cited by the

25     Stanisic Defence in their brief at paragraph 1261, would have exerted

Page 20389

 1     this influence not only to protect the expatriate UN hostages but to

 2     protect the Bosniak, Trnovo, and Sanski Most victims.  Imagine how

 3     history could have been different.

 4             The fact is that the accused continued to support Arkan and the

 5     Skorpions in their murderous acts during precisely the same time period

 6     as the hostage crisis.  That is because, we assert, the killing of the

 7     expatriate hostages would not have furthered the common criminal plan.

 8     It would likely have blocked it.

 9             The ill gotten gains of the criminal plan could only be made

10     permanent through a peace plan that recognised them.  Peace negotiations

11     were an integral part of the plan and not evidence that no plan existed.

12             Thank you.

13             JUDGE ORIE:  This concludes your rebuttal Mr. Groome?

14             MR. GROOME:  It does, Your Honour.  Thank you.

15             JUDGE ORIE:  It does.  That's even before the planned end of this

16     session.  I think the wisest thing to do would be to take the break now

17     so that you at least have some time to prepare.

18             Now, what would you prefer?  We have one hour was reserved for

19     the Defence.  If we would take a break now of 25 minutes, then we would

20     have 1 hour and 25 minutes left.  Do you want to use that time, or would

21     you rather take a bit of a longer break?  I'm also looking at --

22             MR. JORDASH:  We would like a shorter break or the same time

23     break, I would say.

24             JUDGE ORIE:  The same.  That is 25 minutes.

25             MR. JORDASH:  Yes.

Page 20390

 1             JUDGE ORIE:  And may I ask the Prosecution that remained well

 2     within its time limits would there be any problem that the remainder of

 3     the time would be given to the Defence?

 4             MR. GROOME:  No, Your Honour.

 5             JUDGE ORIE:  Then you divide among yourselves the remaining time

 6     which would then be one hour and 25 minutes.

 7             MR. JORDASH:  Thank you very much to Mr. Groome for that

 8     courtesy.

 9             JUDGE ORIE:  Yes.

10             We take a break and resume at 25 minutes to 6.00.

11                           --- Recess taken at 5.09 p.m.

12                           --- On resuming at 5.39 p.m.

13             JUDGE ORIE:  Apologies for the late start despite the tight

14     schedule.

15             Mr. Jordash, you have reached the agreement with the

16     Simatovic Defence on timing?

17             MR. JORDASH:  Your Honour, yes.  They only want approximately 15

18     minutes, and I think I'll be approximately 40 or 45, with Your Honours'

19     leave.

20             JUDGE ORIE:  Yes.  Then please proceed.

21             MR. JORDASH:  Thank you, Your Honours.

22                           [Stanisic Defence Rejoinder]

23             MR. JORDASH:  Firstly, we have a number of slides.

24     Unfortunately, we haven't had the opportunity to check them in terms of

25     confidential and -- material.  So with Your Honours' leave if they could

Page 20391

 1     remain not published to the public for the moment.

 2             JUDGE ORIE:  Yes, so we remain in open session, although none of

 3     the slides to be shown to the public.

 4             MR. JORDASH:  Other than slide 1.

 5             JUDGE ORIE:  Other than slide 1.

 6             MR. JORDASH:  Your Honours, the differences in approach taken by

 7     the Prosecution and the Stanisic Defence with regard to this case may be

 8     summed up in a very simple phrase:  Assertion versus evidence.  Taking as

 9     our starting point the Prosecution's closing on Tuesday, that is the

10     theme of this reply.

11             As we noted yesterday, we, the Defence, believe we have addressed

12     all the salient evidence in our final brief and in our closing remarks of

13     yesterday.  We have sought to address each and every piece, good or bad,

14     and offered reasonable explanations that stand as a rebuttal of the

15     Prosecution case on the vital issues.

16             As we noted yesterday, Stanisic's proximity to the events, and I

17     would add to that the misbehaviour of some of those with relationships to

18     the DB, mean that it is not possible to remove all the suspicion, but we

19     do not have to.  That is not sufficient to convict Mr. Stanisic.  So we

20     once again urge Your Honours to examine the Prosecution and Defence

21     submissions with a critical eye, as we know Your Honours will, to

22     ascertain whether an assertion giving rise to suspicion has been

23     transformed by evidence into proof beyond a reasonable doubt.

24             Unfortunately, in a case this voluminous and complex, that

25     distinction may be easily blurred, especially in the hands of a skilful

Page 20392

 1     and determined Prosecution.  The difference is critical in this trial

 2     with regard to the issues of the special units, especially the alleged

 3     Red Beret unit that Stanisic is alleged to have created at Golubic and is

 4     said to have been continuous throughout the indictment period.

 5             The case of that alleged continuous unit revolves around both

 6     Prosecution and Defence assertions.  We urge you to find both

 7     insufficient and look carefully at the evidence.  This is vital if the

 8     law is to be respected, especially concerning joint criminal enterprise

 9     and the tools test.

10             If I may just explain why we take that view.  The Prosecution

11     relies upon a volume of statement within personnel files wherein men

12     claim they were in a unit since May 1991.  The Prosecution claim they are

13     entitled to adduce any number of new direct perpetrators at any time

14     without consequence, and further to allow the Defence to assert as we

15     have that they are direct perpetrators and without illuminating

16     Your Honours as to whether that's correct, and to allow Your Honours to

17     rule that the Defence have been speculative without correcting that

18     position.  Only now are the Prosecution willing to confirm that these men

19     are relied upon as direct perpetrators.

20             We leave that matter for Your Honours and for Your Honours to

21     consider whether drip feeding direct perpetrators into a trial is

22     sufficient and whether that undermines the Defence's right to the

23     preparation of an effective defence.  What the Pre-Trial Chamber said or

24     what Your Honours said at the beginning of trial before the drip feeding

25     of these direct perpetrators into the trial is one thing, another thing

Page 20393

 1     is what Your Honours will need to decide when looking at that issue now

 2     at the end of a long and complex trial.

 3             Putting aside that issue, what these men claim in these personnel

 4     files are assertions only, assertions that we are not able to test

 5     because the evidence came late but also because none of these men have

 6     been called to allow them to be cross-examined.  As I said, the Defence

 7     also relies upon witnesses who make assertions.  The Prosecution evidence

 8     contained in P973 at page 7 about a man who met Simatovic on Tara who

 9     gained the impression that the men around him were more of a group than a

10     unit, that same evidence confirming that Simatovic was engaged in

11     founding a new unit, not the formalising of an old one.

12             Sliskovic, his first account, where he told the Prosecution that

13     he understood that a Serbian DB unit was being re-established.  JF-048

14     also confirmed again in his first account that men who applied to join

15     the JATD in 1993 applied to join a new unit.  As he confirmed towards the

16     latter part of his senior year, representatives of the so-called

17     Red Berets came to his school to see if anyone was interested in joining.

18     I made an error there.  It's not 1993, it's April of 1995.  He noted, and

19     I quote, "This unit was relatively new."

20             He testified that he was told that the roots of the unit went

21     back to the Alpha camp, I quote, "That our first instructors were trained

22     there."  Your Honours will see that at P523, pages 3 to 4.  In other

23     words, what he said before being proofed by the Prosecution in this case

24     was that the instructors had been trained at the Alpha training camp,

25     which as Your Honours will see from the exhibits such as P3061, opened in

Page 20394

 1     1993, but in April 1995, this unit was relatively new.  Your Honours will

 2     note that we rely upon the Prosecution evidence in the main for these

 3     assertions.

 4             We also rely upon Krsmanovic, who despite the obvious logic that

 5     he must have known on the Prosecution case that infamous men such as

 6     Bozovic had been pivotal to this unit since 1991, asserted in this court

 7     that the unit being created was new, and he acted accordingly.  We have

 8     the evidence.  He applied for operative checks for all these men,

 9     including Bozovic.

10             So we have contradictory assertions.  We know that.  Where does

11     that take us?  Well, it takes Your Honour, with respect, to the

12     applicable law and the evidence in support.  That's how we can resolve

13     this contradiction in the assertions, and the applicable law is the tools

14     test, and the evidence is what the Prosecution has proven happened on the

15     ground.  Self-serving claims in personnel files cannot satisfied the

16     test.

17             The type of criteria that must be addressed by the evidence

18     before Mr. Stanisic may be found responsible for members of a unit acting

19     in furtherance of crime and the Prosecution's criminal purpose was summed

20     up by the Appeals Chamber who adopted the approach from the Krajisnik

21     case, and I refer Your Honours to slide 1 which is on the screen.

22     Slide 1 sums up the kind of evidence which would distinguish perpetrators

23     of crimes acting as part of a joint criminal enterprise from persons not

24     part of that joint criminal enterprise but who were committing similar

25     crimes.  That is the problem with the Prosecution's approach to notice in

Page 20395

 1     this trial.  It not only prejudices the accused, but it also undermines

 2     their case.

 3             In the main, Your Honours have not been told what these men did

 4     other than they were in a unit, nor has the Prosecution adduced except in

 5     a handful of cases which we address in depth in our brief what crimes

 6     they committed, whether the perpetrators' act advanced the objective of

 7     the joint criminal enterprise, whether members of the joint criminal

 8     enterprise ratified the perpetrators' act implicitly or explicitly, and

 9     so on and so forth.

10             More basically, the Prosecution have not defined for each

11     phrase -- phase of the indictment or particular event the unit's command

12     structure.  They haven't identified briefings attended by the men, any

13     rules of the organisation, any orders or instructions in relation to most

14     of the men except they assert Stanisic and Simatovic were in command.

15             It is plainly not sufficient to point to assertions of the

16     existence of a unit and then request that Your Honours presume on the

17     basis of a handful of men's conduct that it existed and acted in

18     furtherance of crime at the behest of Mr. Stanisic.

19             A gushing award ceremony after the fact does not resolve these

20     evidential problems.  Whether Milosevic was present or not, there was a

21     number of dignitaries who remained after Milosevic left.  Do the

22     Prosecution suggest that the DB having engaged in such a charade should

23     have just shut up shop and gone home?  In any event, it isn't enough.

24     It's an assertion and nothing more.

25             The Prosecution's approach in this case in relation to these

Page 20396

 1     types of assertions is compounded by inaccurate assertions by the

 2     Prosecution in their brief and an attempt as we indicated yesterday to

 3     reverse the burden of proof.  Slides 2, 3, and 4 are representative

 4     samples respectively.

 5             Let me add one other assertion which we heard today from the

 6     Prosecution.  C-015 testified that Martic referred to Stanisic as his

 7     only and first commander.  Assertion.  It doesn't corroborate JF-039.

 8     It's an assertion devoid of evidential support.  If C-015 had offered a

 9     scintilla of support for the alleged weapon supplies, then we might be

10     able to talk about corroboration and we might be able to talk about

11     evidence and not assertion.

12             Slide 5 sums up aspects of the Prosecution oral closing that we

13     want to deal with in this reply.  We shall follow the structure

14     Your Honours see on the screen.  We shall once again demonstrate that the

15     Prosecution's approach remains limited to proffering assertions, not

16     evidence, and unreliable assertions at that.

17             Slide 6.  The Prosecution allege at transcript 20181, that the

18     relationship between the accused was a close relationship of co-operation

19     and trust during the indictment period.  It is the most important

20     relationship among JCE members in this case.  Slide 6 enumerates the

21     evidence that the Prosecution alleges amounts to tremendous support for

22     this thesis.  As we can see, it exists or it amounts to witnesses'

23     impressions.  It is also, as Your Honours can see, limited to the three

24     witnesses whose evidence relates to 1991 in the main.  Assertion, not

25     evidence.

Page 20397

 1             We submit each salient event or alleged use of direct

 2     perpetrators must be looked at on a case-by-case basis to see what

 3     Stanisic's relationship to Simatovic was at that time.  Whether the

 4     evidence shows Stanisic was involved and whether he procured Simatovic,

 5     this on a case-by-case basis.

 6             Slide 7, the relationship between Stanisic and Badza.  Slide 7

 7     sums up the one piece of evidence that the Prosecution relies upon to

 8     support this gargantuan assertion that Stanisic was Badza's boss.

 9     Milovanovic did not confirm that Badza had indicated Stanisic was his

10     boss, and even if he had, to rest a whole relationship for five years on

11     such an assertion would be wholly wrong.

12             Slide 8 and slide 9 addresses the Prosecution's submissions

13     concerning the irrelevance of tension between Milosevic, Karadzic, and

14     Krajisnik.  The Prosecution relies upon the evidence of Sir Ivor Roberts

15     to suggest that these conflicts did not extend to the DB.  Once again,

16     the Prosecution rely upon an assertion Sir Ivor Roberts uttered.  I

17     quote:

18             "That was the impression one had for the reasons I was saying

19     earlier, that while the political leadership were very much out of

20     sympathy with each other.  At other levels, conversations and

21     understandings continued between state security people and the armies.

22             First of all, the Prosecution appear to misunderstand our

23     submission.  We are not only arguing that the Bosnian Serbs were not

24     pursuing a criminal purpose during 1995, we are also submitting that even

25     if they were, the Belgrade leadership were no longer part of that

Page 20398

 1     enterprise.

 2             Further, if one looks at what Sir Ivor Roberts says, he says that

 3     he had the impression that conversations and understandings continued

 4     between the state security people.  That's a long way away from concerted

 5     action and furtherance of crime.

 6             Slide 8, which you have on your screen, confirms the dangers of

 7     relying on impressions.  It shows some of the evidence that shows not

 8     only was the Serbian DB alone in not co-operating with the Bosnian Serb

 9     DB, but by the time 1995 came, any minimal relationship had descended

10     into damaging conflicts as a result largely of the allegation that Tajfun

11     considered to be a Serbian DB organisation had infiltrated the

12     Bosnian Serb DB and was undermining its function.  This case is about the

13     DB.  It's a powerful piece of evidence.  If the DB under Mr. Stanisic is

14     not co-operating with the Bosnian Serb DB and is considered to be

15     undermining its function that takes this past assertion and into

16     evidence.

17             We also refer Your Honours to paragraph 111 to 1122 of our

18     closing brief and also Misic transcript 19859 to 19860 and transcript

19     19883 for further discussions on this point.

20             Turning to slide 10, the Prosecution's assertions concerning

21     Simatovic planning with Dragan to set up paramilitaries in Knin.

22     Slide 10 contains the Prosecution's assertions concerning Simatovic's --

23     I beg your pardon.  Slide 10 contains some of the evidence which we will

24     address to deal with the Prosecution's assertions.  First of all, the

25     Prosecution seek to draw massive inference from this document.  Despite

Page 20399

 1     the fact that Stanisic was only an assistant at the DB at the time,

 2     despite the fact as we detail in Annex 1 of our brief that he was being

 3     investigated for treason, the Prosecution say if Stanisic -- if Simatovic

 4     was planning, so was Stanisic.

 5             Secondly, as my learned friends for Mr. Simatovic addressed, the

 6     Prosecution have misread the document.  This document is further proof

 7     that JF-039 was lying about Stanisic when he claimed that he met Stanisic

 8     in 1990 and when he claimed that he met Stanisic in January 1991 and the

 9     plan was hatched then to create Golubic.  The Prosecution claims that

10     Dragan was a integral part of the plan, yet when one reads the document

11     properly, one can see Simatovic did meet Dragan in an April of 1991.  But

12     rather than talking about Golubic, supplies to Knin, and so on and so

13     forth, they talked about something quite different.

14             Odd to say the least that a plan had existed for some time to the

15     effect that Stanisic would send Dragan to Knin with Simatovic and other

16     DB instructors but yet the only plan evidenced in this intelligence

17     document is a plan to use Dragan to gather intelligence.  The Prosecution

18     appear to accept this document as reliable.

19             More critically, as the document suggests, Simatovic is

20     attempting to find out whether Dragan is transporting weapons through

21     Bosnia which must be to Knin or to the Krajina.  It notes on a number of

22     occasions during the conversation, We tried to provoke him regarding any

23     information he might have had -- he might have about the transport of

24     weapons through Bosnia, but in all these cases he acted disinterested

25     with a tendency to dismiss the subject.  Very strange indeed.

Page 20400

 1             According to JF-039, Simatovic on behalf of Milosevic and

 2     Stanisic had been supplying weapons to Knin for eight months.  Presumably

 3     Dragan, days before he went to Knin, would have been in this

 4     informational loop.  After all, this was a plan to create paramilitary

 5     forces which required weapons for Captain Dragan's Golubic camp, and yet

 6     conversely the DB appears to be concerned about Dragan supplying weapons

 7     through Bosnia.  A curious lack of co-ordination for the Prosecution's

 8     elaborate DB plan.

 9             The Prosecution today said that while Babic may not have known

10     and that his testimony:

11             "Reveals that when he met Milosevic in March of 1991, it became

12     apparent that Milosevic, Bogdanovic and Stanisic had already been

13     involved in sending weapons to Krajina without Babic's knowledge."

14             But an examination of the relevant exhibit, P1878, page 153 to

15     154, Babic testimony, shows that what Babic was unaware of was 500 pieces

16     of weapons which had been sent to Banija, not the Serbian MUP trucks, not

17     the Stanisic co-ordination, not thousands of pieces of weapons which the

18     Prosecution case alleges, but 500 weapons to Banija and no Stanisic in

19     that equation.

20             This document, and I'm embarrassed to say, we hadn't noticed the

21     significance of this document, but this may well be the most pivotal

22     document in this whole scenario.

23             If we can turn to slide 11, please.  And it deals with an

24     assertion, just moving on to another subject, the priority that the JATD

25     was given in terms of staffing.

Page 20401

 1             The Prosecution asserted at T-20202 that the JATD's priority in

 2     terms of staffing suggested and showed what an influential and powerful

 3     man Mr. Stanisic was and how Milosevic gave him, the DB, priority in

 4     terms of resources.  Slide 11 contextualises that assertion.  Rather than

 5     it seems the JATD being an elite force prioritised, it appears to have

 6     been an organisation that many employees departed from.

 7             Your Honours will also note that this alleged killing machine

 8     engaged in extensive combat activities, according to the logic of the

 9     Prosecution case, only records that in 1995 four people died.

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 20402

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 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                           [Open session]

Page 20403

 1             THE REGISTRAR:  Your Honours, we're back in open session.  Thank

 2     you.

 3             JUDGE ORIE:  Thank you, Mr. Registrar.

 4             MR. JORDASH:  The same applies to an error I made yesterday

 5     concerning JF-032 and my confusion between Bogunovic and Bogdanovic, but

 6     the Prosecution again failed to deal with the material issue.  Neither of

 7     the witnesses, Bogunovic or JF-029 who could be expected to have known

 8     about Stanisic screaming in public about Vukovar and then arranging and

 9     planning the Vukovar operations confirmed that to be true.  The

10     Prosecution presumably asked them and they didn't know.

11             Moving on to slide 13, and I want to deal very briefly with the

12     Prosecution's changing account to Stanisic's alleged command of Arkan.

13             As we understood the Prosecution case from the outset of this

14     trial, and that has been maintained throughout until two days ago,

15     Stanisic was Arkan's direct commander, and as slide 13 shows, taken from

16     the Prosecution's closing, that case has shifted.  Now they want

17     Your Honours to accept, having failed to produce a single piece of

18     evidence of Stanisic meeting or communicating with Arkan throughout the

19     whole indictment period, that his liability can rest on the fact that

20     Stanisic knew what was happening in SBWS, that Arkan and Badza

21     co-operated closely, and that Stanisic co-operated with other JCE members

22     and that Stanisic was in charge of Kostic and Kojic.  A very different

23     case indeed from that we started off with and have had to struggle with

24     for the last three years.  A classic case, we submit, of moulding the

25     case, a classic case of insufficiency of evidence, and a textbook example

Page 20404

 1     of attempting to attribute guilt by association.

 2             It I can now turn to Trnovo.  Slide 14 contains a summary of the

 3     steps, we submit, the Prosecution must take to make a finding or

 4     establish a finding with regard to the killing of these unfortunate

 5     victims.  We hope Your Honours will find it useful.  It's to show the

 6     impoverishment of the position that an association with Kojic or an

 7     employment relationship with Kojic is sufficient to show that these

 8     security men of Medic's were under Stanisic's control.

 9             The Prosecution rely upon Kovac, who is only one of two

10     witnesses, JF-029, being the other, who claim Mijovic was in command at

11     the time.  As Your Honours will see in the third column, JF-029 conceded

12     that he was not certain on a different occasion.  By the time he arrived

13     in this courtroom, his version was somewhat different.

14             With regard to Kovac, the Prosecution accept he needs

15     corroboration.  I think yesterday I referred to Kovacevic by mistake, but

16     I was referring to Kovac.

17             We submit that the problem of Kovac, rightly identified by the

18     Prosecution, extends to Mladic and all evidence from the RS senior

19     leadership.  Slide 15 sums up further evidence of the unreliability of

20     Kovac and Mladic as well as providing further evidence of the lack of

21     concerted action of the Serbian DB as an institution and the Bosnian Serb

22     leadership.

23             Slides 16 sums up the steps that the Prosecution must take to

24     establish Mr. Stanisic's liability for Arkan's men, including his alleged

25     financing of the Sanski Most operation.  Your Honours will note that the

Page 20405

 1     Prosecution have only identified eight of 3- to 400 of Arkan's men being

 2     paid per diems.  This does not suggest Stanisic's support or the DB's

 3     institutional support.  On the contrary, it must show that these payments

 4     are more personal.

 5             And so to conclude, I think well within time, I hope, as with

 6     that issue, the issues we've tried to outline in our closing brief and

 7     the approach we've tried to take, which is to examine the minutia of the

 8     evidence, to strip away assertion and to look far from collective

 9     responsibility and to approach individual responsibility, the

10     Prosecution's attempt to turn this trial into a morality play must fail.

11     Motive is not intent.  Whatever Stanisic's motives, whether he

12     co-operated with foreign powers to avoid their intelligence services

13     undermining his own, whatever his motives were in relation to a number of

14     acts, many of which are in our brief but are in the annex which deals

15     with mens rea and mitigation, his intent is what this trial is about.

16     And whatever the Prosecution say belatedly concerning his interaction

17     with foreign powers, that assistance was valuable.  It impacts on his

18     intent.

19             To assist foreign powers to look for -- could we go into private

20     for a moment, please.

21             JUDGE ORIE:  We move into private session.

22                           [Private session]

23   (redacted)

24   (redacted)

25   (redacted)


Page 20406

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9                           [Open session]

10             THE REGISTRAR:  Your Honours, we're back in open session.  Thank

11     you.

12             JUDGE ORIE:  Thank you, Mr. Registrar.

13             MR. JORDASH:  And as for the belated suggestion that Mr. Stanisic

14     had turned his undoubted character to assisting, we say this:  One man

15     can only do so much.  It's difficult to point to any of the Serb

16     leadership who did what he did.  We submit that should be the framework

17     for Your Honours' consideration.

18             We're grateful to Your Honours for the time, and we leave the

19     case in your capable hands, and thank you.

20             JUDGE ORIE:  Thank you, Mr. Jordash.

21             Mr. Bakrac.

22             MR. BAKRAC: [Interpretation] Thank you, Your Honour.

23                           [Simatovic Defence Rejoinder]

24             MR. BAKRAC:  Your Honours, I will be very brief, and I will

25     address only some of the remarks presented by Ms. Marcus.

Page 20407

 1             On page 47 of today's LiveNote, our learned friend says

 2     concerning our closing remarks that it is simply unbelievable when you

 3     see the video from the ceremony in Kula for someone to hug a person he

 4     claims he had no contact with ever.  The Defence never claimed in these

 5     proceedings that there had been no contacts between Captain Dragan and

 6     Franko Simatovic.

 7             A lot of evidence has been led in this trial, and the Defence

 8     accepts it, that Captain Dragan and Mr. Simatovic had at least two months

 9     when they were in Krajina together in the area of Knin and Golubic in

10     1991.  What the Defence denied in its closing remarks is the nature of

11     that relationship.  Franko Simatovic and Captain Dragan never had the

12     relationship of members of a joint criminal enterprise who worked

13     together in pursuit of a certain goal.

14             I would like to draw the Trial Chamber's attention to the final

15     trial brief of this Defence, paragraph 353, and I shall quote from it.

16     From the document we analysed in the said paragraph, it is abundantly

17     clear that Captain Dragan, in September 1991, upon returning from Knin --

18     could we just briefly go into private session for me to mention a name.

19             JUDGE ORIE:  We move into private session.

20                           [Private session]

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 20408

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16                           [Open session]

17             THE REGISTRAR:  Your Honours, we're back in open session.  Thank

18     you.

19             JUDGE ORIE:  Thank you, Mr. Registrar.

20             MR. BAKRAC: [Interpretation] I apologise, Your Honour.  Now when

21     we are very comfortable with time, I am in a hurry and it's obvious that

22     we will conclude even before time.

23             The next thing my learned friend cites is Exhibit P693 as the

24     only intercept involving Radovan Karadzic, and from this intercept my

25     learned friend makes the miraculous conclusion that Radovan Karadzic and

Page 20409

 1     Simatovic knew each other, they were close, and they were working on a

 2     joint project.  I will agree that Radovan Karadzic and Franko Simatovic

 3     knew each other.  From what and how does my learned friend draw the

 4     conclusion that they were close?

 5             I kindly ask the Trial Chamber again to look at this intercept

 6     carefully, P693, and analyse it from beginning to end.  It is also

 7     possible and desirable to analyse the B/C/S version.  What is really

 8     important and obvious is that Franko Simatovic is addressing

 9     Radovan Karadzic as Mr. Karadzic.  They are not on first-name terms.

10     What is important is that when Kertes is passing the receiver to

11     Simatovic, Radovan Karadzic asks, "Who is this?"  He doesn't recognise

12     the voice.  It certainly casts no less than a reasonable doubt on the

13     assertion that they were close.

14             I would appreciate it if I could get an explanation from my

15     learned friend how and where she reads from the intercept that they were

16     working on a common project.  That is really not evident from the

17     conversation.  The fact that the Prosecution believes that

18     acquaintanceship is a sufficient test for proving that somebody's

19     involved in a joint criminal enterprise, then the Defence is simply

20     defenseless.

21             My learned friend also mentioned a meeting related to the

22     Operation Udar that Ratko Mladic noted in his diary.  My colleague

23     Mr. Petrovic spoke about that in his closing remarks, and we have dealt

24     with a lot of evidence and analysis concerning this in our final trial

25     brief.

Page 20410

 1             My question is:  What does the presence of Franko Simatovic, who

 2     does not contribute to the discussion at that meeting at all mean, and

 3     how does it incriminate him or indicate that he was involved in some

 4     planning or operation of the VJ?  Is it really strange that a certain

 5     time after a lot of shells landed in the area of Bajina Basta and the

 6     Republic of Serbia that an intelligence officer of the state security

 7     sector of the Republic of Serbia has come to familiarise himself with the

 8     situation, to assess how serious the threat is to the territory of Serbia

 9     and the state of Serbia?  It is quite clear from that entry that he was

10     not making any suggestions, that he was not participating in the planning

11     of any actions or operations, and, indeed, that he did not say a word.

12             Isn't it logical and normal to any reasonable trier of fact that

13     an intelligence agent of the State Security Service is displaying

14     interest in a situation that could pose a threat to his state?  Is that

15     really evidence of a joint criminal enterprise, his presence at that

16     meeting?  The only meeting, I repeat.  We have put forward a wealth of

17     evidence that explained the entire Operation Udar, who planned, what they

18     planned.

19             My learned friend also adds concerning this operation that

20     Franko Simatovic together with the Red Berets participated in these

21     operations around Bajina Basta.  I kindly ask you to move into private

22     session very briefly.

23             JUDGE ORIE:  We move briefly into private session.

24                           [Private session]

25   (redacted)

Page 20411

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15                           [Open session]

16             THE REGISTRAR:  Your Honours, we're back in open session.  Thank

17     you.

18             JUDGE ORIE:  Thank you, Mr. Registrar.

19             MR. BAKRAC: [Interpretation] Your Honours, and towards the very

20     end my learned friend responded also to the five signatures on over

21     50 pay lists for per diems.  Perhaps we and the Prosecution did not

22     really understand one another well.  It doesn't matter whether somebody

23     in the hierarchy above or below somebody signs for another person,

24     although it is unusual for a superior to sign for a subordinate.  This is

25     about something else.

Page 20412

 1             My colleague Mr. Petrovic asked the Trial Chamber to consider why

 2     in an internal document from 1994 and 1995, a document addressed to the

 3     8th Administration of the same State Security Service made in realtime,

 4     why would it be a problem to write on those five pay lists

 5     "Commander Franko Simatovic" and for Simatovic to sign that?  The only

 6     realistic conclusion is that's because Franko Simatovic was not commander

 7     of that unit.  Why do we see deputy commander Radonjic?  We explained

 8     through numerous evidence, including the job staff specification which

 9     shows that the commander of the unit did not exist that Radonjic as

10     deputy commander was the highest in rank.  We would like to recall that

11     it was a special organisational unit in the State Security Service.

12             When Simatovic signed for Radonjic, he was a special advisor in

13     the state security sector.  And it was precisely because it was not the

14     same organisational unit Franko Simatovic, a special advisor, signs for

15     the deputy commander, not because one of them was superior to the other.

16             I repeat again, why would it have been a problem to write in a

17     10-page pay list "Commander of the unit Franko Simatovic" if that had

18     been the case?  At that time there was absolutely no indication that

19     there would be any proceedings before this court.  It was an internal

20     document of the State Security Service.

21             Your Honours, I ask you kindly to consider all the arguments

22     provided in our final trial brief and in our closing remarks and our

23     response to the rebuttal of the Prosecution.  Thank you very much for the

24     time you granted us and for listening to our remarks.

25             JUDGE ORIE:  Thank you, Mr. Bakrac.

Page 20413

 1             MR. PETROVIC: [Interpretation] Your Honours, with your leave,

 2     just one point to clarify something Your Honours asked during our

 3     presentation.

 4             On page 31, relating to our final brief, pages 1058 and 1059, you

 5     should understand that our Defence was dealing with the alleged planning

 6     of the Operation Udar.  In those paragraphs you will find our position

 7     concerning the planning of that operation.  That is a clarification of

 8     what we have said in our closing remarks today.  Thank you.

 9             JUDGE ORIE:  Yes.  I saw that especially in 1059, paragraph 1059,

10     that it was about planning and preparation.  I raised the matter because

11     the word "Udar" was not in any language referred to in those paragraphs

12     and neither in the preceding paragraph, but thank you for your

13     clarification.

14             Before we conclude, Mr. Bakrac, P693, you asked our specific

15     attention for the original version which of course we have some

16     difficulties in reading where in the telephone conversation between

17     Mr. Simatovic and Mr. Karadzic you said Mr. Karadzic was addressed as

18     Mister.  Now, what we find in the translation is that he is twice

19     addressed as Doctor.  Do you intend to say the translation is wrong?

20     Then we should ask for a review of the translation, or were you referring

21     to the use at two occasions of the word Dr., or is there anything else?

22             THE INTERPRETER:  May the interpreters say something before

23     Mr. Bakrac replies?

24             JUDGE ORIE:  I beg your pardon.  I beg your pardon.  The

25     interpreters asked whether they could say something before you respond to

Page 20414

 1     what I just asked.  The interpreters have an opportunity to -- to say

 2     whatever they want to say.

 3             THE INTERPRETER:  Your Honours, we interpreted it as "Mr." to

 4     indicate that they were not on first-name terms.  The word used by

 5     Mr. Bakrac was, in fact, that they were addressing each other as "vi,"

 6     which is the equivalent of "vous" in French.

 7             JUDGE ORIE:  So it is the use of the more polite form, if I could

 8     say it.  In English it's very difficult to explain.  In the French you

 9     would say that they were "vous voyez," and not -- and not "tu tries."

10     That is meaning the plural form and not the singular form which is used

11     in some languages as an expression of respect and distance rather than

12     being closer to other persons.

13             MR. BAKRAC: [Interpretation] Your Honours, I know that I -- what

14     I'm going to say will have no probative value whatsoever but in the

15     Serbian language when you don't know somebody well, you also use "vous."

16     When you are closer with somebody, you would address them as "ti," like

17     "tu" in French.

18             JUDGE ORIE:  Yes.  On the record, of course, the Chamber will

19     consider these observations in the context of the entirety of the

20     conversation.

21             Then this having been clarified, if the parties agree on the use

22     of this form in the language, I don't think that we have to do anything

23     with it.

24             Then this then concludes the closing arguments of the parties.

25             Now, there are still a few pending matters which in all

Page 20415

 1     likelihood would not require any further hearing.  Of course, that can be

 2     different, you never know, but as far as we can foresee now there will be

 3     no further hearings.

 4             The Chamber would like to express its appreciation, appreciation

 5     for the often very practical and the very co-operative attitude the

 6     parties have shown, especially when the Chamber asked for the assistance

 7     of the parties.  And I can assure you that all three Judges are convinced

 8     that the parties play a vital role in this kind of proceedings.

 9             Therefore, we adjourn, as it is said in latin sine die, without a

10     new date.  It may well be that after we have dealt with some other

11     matters that we will issue a Scheduling Order indicating when we will

12     deliver judgement.  Judgement will be delivered in due course.

13             We stand adjourned sine die.

14                           --- Whereupon the hearing adjourned at 6.45 p.m.

15                           sine die