Tribunal Criminal Tribunal for the Former Yugoslavia

Page 19567

 1                           Wednesday, 12 December 2012

 2                           [Judgement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 3.01 p.m.

 6             JUDGE FLUEGGE:  [Microphone not activated]

 7             THE REGISTRAR:  Good afternoon, Your Honours.  This is case

 8     number IT-05-88/2-T, the Prosecutor versus Zdravko Tolimir.

 9             Thank you.

10             JUDGE FLUEGGE:  Thank you.

11             Our last hearing was in late August this year.  May we,

12     therefore, for the record have the appearances of the parties.  The

13     Prosecution first.

14             MR. McCLOSKEY:  Good afternoon, Mr. President, Your Honours.

15     Peter McCloskey for the Prosecution, with me my team, Kweku Vanderpuye,

16     Janet Stewart, Nelson Thayer, Rupert Elderkin, and Abeer Hasan.

17             JUDGE FLUEGGE:  Thank you very much.

18             And for the Defence.

19             THE ACCUSED: [Interpretation] Thank you, Mr. President.

20     Greetings to everybody in the courtroom and I wish for these proceedings

21     to be concluded in accordance with God's will.  I represent myself.  I'm

22     Tolimir and with me I have Mr. Gajic, Dobrica Stefanovic,

23     Miljan Kunijevic, and Ivan Todrovski was unable to join us due to traffic

24     jam.  Thank you.

25             JUDGE FLUEGGE:  Thank you very much.

Page 19568

 1             This Chamber is sitting today to pronounce the judgement in the

 2     trial against the accused in this case, Mr. Zdravko Tolimir.  To this

 3     end, it will provide a summary of its findings of the charges against the

 4     accused before coming to its disposition.  The Chamber emphasises that

 5     this summary is not part of the judgement.  The only authoritative

 6     account of the Chamber's findings is to be found in the written

 7     judgement, copies of which will be made available to the parties at the

 8     conclusion of this sitting.

 9             Mr. Tolimir was first indicted in 2005.  In that year, his case

10     was joined with that of the accused in the Popovic et al. case.  On the

11     15th of August, 2006, with the accused remaining at large his case was

12     severed from the joint case and a separate indictment was filed against

13     him later that same month.

14             On 31st May 2007, the accused arrested and transferred to the

15     Tribunal the next day.  Following his refusal to identify himself and to

16     enter a plea at his initial appearance before the Chamber on 4 June 2007,

17     a plea of not guilty was entered on his behalf on 3rd July 2007 in

18     accordance with the Rules of Procedure and Evidence of the Tribunal.  The

19     operative indictment against the accused in this case was filed on 4

20     November 2009.  The trial in this case commenced on 26th February 2010.

21     The accused elected to represent himself but had the assistance of legal

22     staff, including his legal adviser, Mr. Aleksandar Gajic, who had a

23     limited right of audience before this Chamber.  The case ended earlier

24     this year with the parties' closing arguments held from 21st to 23rd of

25     August.

Page 19569

 1             The Chamber sat for a total of 242 trial days, producing over

 2     19.000 transcript pages.  It admitted nearly 3.500 exhibits into

 3     evidence.  The Prosecution adduced the evidence of 183 witnesses; the

 4     Defence presented four witnesses.

 5             I take this opportunity to reiterate our appreciation to the

 6     parties for their professional and respectful attitude towards one

 7     another, which no doubt contributed to this trial moving along so

 8     efficiently.  I also want to thank again all those who have been working

 9     behind the scenes for the last nearly three years without whom none of

10     the proceedings before this Tribunal would be possible.

11             The Chamber will now set out the charges against the accused and

12     will then move on to summarise its main findings.

13             Mr. Zdravko Tolimir was one of the assistant commanders of the

14     Main Staff of the Army of the Republika Srpska and the chief of the

15     sector for intelligence and security affairs within the Main Staff.  In

16     this capacity he is charged as being a member of two joint criminal

17     enterprises.  The first:  A joint criminal enterprise to murder the

18     able-bodied Bosnian Muslim men from the enclave of Srebrenica between

19     approximately 11 July and 1st November 1995.  The second:  A joint

20     criminal enterprise to forcibly remove and deport the Bosnian Muslim

21     population from the enclaves of Srebrenica and Zepa, which allegedly

22     commenced with the issuance of Directive 7 in March of 1995 and

23     culminated in the actual removal of the populations from these enclaves

24     from July to August 1995.

25             The Chamber shall refer to the Army of Republika Srpska as the

Page 19570

 1     VRS, and to the alleged joint criminal enterprises in shortened forms, as

 2     the JCE to murder and the JCE to forcibly remove throughout this summary.

 3             The accused is further charged with criminal responsibility

 4     pursuant to the extended form of JCE referred to as JCE III.  These

 5     charges allege the opportunistic killings of smaller groups of

 6     able-bodied men from Srebrenica, as a foreseeable consequence of both

 7     JCEs, the foreseeable targeted killings of three Bosnian Muslim leaders

 8     of Zepa, as a foreseeable consequence of the JCE to forcibly remove, and

 9     other persecutory acts as a foreseeable consequence of both JCEs.  The

10     Prosecution alleges that it was foreseeable to the accused that these

11     acts would be carried out by Bosnian Serb forces by virtue of his

12     membership in the respective JCEs.

13             The accused is not only charged with commission of these crimes,

14     including through his alleged membership in the two JCEs, but also,

15     pursuant to Article 7(1) of the Statute, with planning, instigating,

16     ordering, and otherwise aiding and abetting in the planning, preparation,

17     and execution of the charged crimes.

18             These crimes set out in the indictment covered in eight counts

19     with which the accused is charged.  These are:  Count 1, genocide; Count

20     2, conspiracy to commit genocide; Counts 3, 4, and 6 through 8, the

21     crimes against humanity of murder, extermination, persecutions, inhumane

22     acts through forcible transfer, and deportation; and Count 5, murder as a

23     violation of the laws or customs of war.

24             On the basis of these charges and the evidence it has presented,

25     the Prosecution has requested a sentence of life imprisonment.

Page 19571

 1             The accused has taken the position that there is no credible

 2     evidence on the basis of which the Chamber could find the accused

 3     criminally responsible beyond reasonable doubt and that, therefore, he

 4     should be acquitted.

 5             I first turn to the Chamber's factual findings in this case.  For

 6     the most part, these are the findings made by the majority.  A dissenting

 7     opinion by Judge Nyambe follows the main text of the judgement.

 8             The crimes charged in the indictment relate to the months of

 9     March through November 1995 in a relatively small area of eastern Bosnia

10     and Herzegovina.  In particular, the crimes concern the enclaves of

11     Srebrenica and Zepa, which had been declared safe havens by

12     United Nations Security Council Resolutions in the spring of 1993.  At

13     the outset, it must be noted that the alleged crimes cannot be considered

14     in a vacuum.  They followed years of armed conflict in Bosnia and

15     Herzegovina.  The Chamber has remained aware of this context throughout

16     the case.  The Chamber's task, however, is not to decide on the

17     legitimacy of the war that took place between the Bosnian Serbs and the

18     Bosnian Muslims in this region.  The Chamber emphasises that its role is

19     limited to the determination of the individual criminal responsibility of

20     the accused, Mr. Zdravko Tolimir, for genocide, crimes against humanity,

21     and war crimes that took place within the context of this war.

22             The majority has found that already in 1992 there was a policy in

23     place at the highest levels of Republika Srpska which sought to remove

24     the Bosnian Muslim population from eastern Bosnia and Herzegovina, among

25     other locations.  This policy was reaffirmed by Directive 7 issued in

Page 19572

 1     March of 1995, a directive signed by the President of the

 2     Republika Srpska, Radovan Karadzic, who was assisted in its drafting by

 3     various sectors within the VRS Main Staff.  This included the sector of

 4     intelligence and security affairs, headed by the accused.

 5             This directive, in relevant part, called for the creation of, I

 6     quote:

 7             " ... an unbearable situation of total insecurity with no hope of

 8     further survival for the inhabitants of Srebrenica and Zepa" to be

 9     achieved through, and I quote again, "planned and well-thought-out combat

10     operations."

11             This directive further called for the reduction and limitation of

12     logistics support to the United Nations Protection Force, abbreviated as

13     UNPROFOR, in the enclaves as well as, I quote, "the material resources

14     for the Muslim population making them dependent on our goodwill while at

15     the same time avoiding condemnation by the international community and

16     international public opinion."

17             The majority has found, Judge Nyambe dissenting, that the

18     issuance of Detective 7 in March of 1995 signified the start of an

19     intensive period of activities by Bosnian Serb forces comprising both the

20     VRS and the Ministry of Interior aimed at achieving the goals set out

21     therein.

22             The majority has found that immediately following the issuance of

23     Directive 7, the VRS engaged in a system of restrictions on humanitarian

24     aid and UNPROFOR re-supply convoys to both the Srebrenica and Zepa

25     enclaves.  These restrictions had the intended effect of making life for

Page 19573

 1     the Bosnian Muslims inside the enclaves unbearable.  Concurrent with the

 2     steady increase of restrictions as of early spring 1995, by June that

 3     year the VRS had surrounded the Srebrenica enclave.  While much of the

 4     VRS efforts targeted members of the Army of Bosnia and Herzegovina,

 5     abbreviated as ABiH, who were operating from within the enclave, the

 6     majority has found that these military activities were also aimed at

 7     civilian targets and were intended to terrorise the Bosnian Muslim

 8     population.  By early July 1995, a devastating humanitarian situation

 9     engulfed both enclaves.  Also by this time, the VRS attacks on the

10     Srebrenica enclave became more overt as it launched an operation called

11     Krivaja 95 to, I quote "create conditions for the elimination of the

12     enclaves," a goal that was expanded with the capture of Srebrenica town

13     within a matter of days.  The majority, Judge Nyambe dissenting, has

14     found that the VRS activities against the enclave, set out in full detail

15     in the written judgement, were intended to remove both the Bosnian Muslim

16     military and the civilian population from the enclave and were consistent

17     with the goals set out in Directive 7, to make life unbearable with no

18     hope of survival for the enclaves' inhabitants.  Through its simultaneous

19     restriction of humanitarian aid and its military attacks on the civilian

20     population, the VRS achieved these goals.

21             On 11 July, Srebrenica fell.  The VRS met with no resistance.

22     High-ranking VRS officers and members of the 10th Sabotage Detachment of

23     the Main Staff took a triumphant walk through the town.  VRS Main Staff

24     Commander Mladic declared that, I quote, "the time has come to take

25     revenge on the Turks in this region" and, I quote again, "we give this

Page 19574

 1     town to the Serb people as a gift."

 2             A column of thousands of able-bodied Muslim men with some women

 3     and children had already started making its way through the woods towards

 4     villages north-west of Srebrenica.  From there, a decision was made by

 5     the Bosnian Muslims to form a column and attempt a breakthrough to Tuzla

 6     at ABiH-held territory.  The column was comprised of some 10.000 to

 7     16.000 Bosnian Muslims and was several kilometres long, with a

 8     concentration of armed men heading the column in an attempt to provide

 9     security for the civilians, including women and children.  Meanwhile,

10     thousands of women, children, and elderly, instead of joining the column,

11     made their way to seek refuge at the UN compound in Potocari hoping for

12     protection there; the road along which they walked was shelled by the

13     VRS.  The majority, Judge Nyambe dissenting, has found this shelling to

14     have been intended to further terrorise an already frightened and

15     vulnerable population.

16             Against the backdrop of these events, two meetings were held on

17     the evening of 11 July 1995 at Hotel Fontana at Bratunac.  VRS

18     representatives attending these meetings included Mladic and Main Staff

19     intelligence officer Radoslav Jankovic.  On the UNPROFOR side,

20     representatives of the Dutch Battalion, abbreviated as DutchBat, namely,

21     Commander Karremans and Officer Boering attended.  The meetings were

22     intended to discuss the fate of Bosnian Muslim civilian population taking

23     shelter at the UN compound at Potocari.  The majority has found, however,

24     Judge Nyambe dissenting, that the meetings were a false demonstration of

25     a good-faith effort by the VRS to find a solution for the population.

Page 19575

 1             The majority has found that these meetings were held in a

 2     threatening and intimidating atmosphere created by the VRS.  Mladic, who

 3     led the meetings, told a Bosnian Muslim school teacher who had been

 4     requested to attend as a representative of the population, that the

 5     Bosnian Muslim population could either, I quote, "survive or disappear."

 6     Mladic conditioned the survival of the population upon the disarming of

 7     the members of the ABiH in the enclave.

 8             A third meeting was held at Hotel Fontana on the morning of 12th

 9     July.  Mladic repeated his threat made the night before, telling the

10     frightened Bosnian Muslim representatives, I quote, "as I told this

11     gentleman last night, you can either survive or disappear."  Also at this

12     meeting, the VRS made clear their intention to "screen" the men amongst

13     the crowd in Potocari for their alleged participation in war crimes.

14     Following this meeting, Karremans and Boering approached chief of

15     intelligence and security of the Bratunac Brigade, Momir Nikolic, and

16     Svetozar Kosoric, chief of intelligence of the Drina Corps, seeking

17     clarification as to what was meant with the proposed screening of men.

18     Momir Nikolic told them that they should get lost, that everything had

19     already been agreed on, and that the transportation of the Bosnian

20     Muslims from Potocari had already started.

21             By the end of 12 July, a total of approximately 25.000 to 30.000

22     Bosnian Muslim civilians, mainly women, children, and elderly, had sought

23     refuge at the UN compound in Potocari.  On the morning of 12th July,

24     Bosnian Serb forces took over Potocari, disarming members of DutchBat and

25     mingling amongst the crowd, cursing, mocking, and mistreating Bosnian

Page 19576

 1     Muslim civilians.  Some were handing out bread and water while being

 2     filmed by a Serb camera crew.  The moment the camera crew stopped

 3     filming, the forces stopped handing out bread and even took some of it

 4     back.  As the Bosnian Muslim women and children boarded the buses

 5     arranged by the VRS, their male family members, including young boys as

 6     well as elderly and infirm men, were separated and detained at several

 7     locations near the UN compound, most notably in the house known as the

 8     white house.

 9             The majority has found that by the end of 12 July, 9.000 Bosnian

10     Muslims had been forcibly transferred by bus from Potocari to Kladanj.

11     Those that remained awaiting their forcible transfer on the next day

12     endured a night that was described as hell.  Moans and screams resonated

13     amongst the crowd.  Gun-shots pierced the evening and members of the

14     Bosnian Serb forces continued to take Bosnian Muslim men away, as they

15     had done throughout the day.  Some men did not return.  Conditions there

16     were so miserable that several Bosnian Muslim civilians committed suicide

17     or attempted to do so.  By the morning of 13 July, everyone was desperate

18     to leave Potocari.  The majority has found, Judge Nyambe dissenting, that

19     under these appalling circumstances the Bosnian Muslim population

20     gathered in Potocari had no choice but to leave.

21             The Bosnian Muslim men and boys who were separated from the

22     crowds in Potocari became the subject of the second joint criminal

23     enterprise alleged in this indictment.  The majority has found that early

24     in the morning of 12 July, just before the start of the third meeting at

25     Hotel Fontana, members of the security organs under the accused's

Page 19577

 1     professional command, referred to a plan to murder these men discussing

 2     possible locations for the planned executions.  The majority,

 3     Judge Nyambe dissenting, has found that in keeping with this plan, at

 4     least 1.000 men and boys having been forced to leave behind their

 5     belongings and identification documents, were detained at the white house

 6     by Bosnian Serb forces.  There they were kept in horrid conditions, some

 7     of them physically mistreated, before being transported by bus to

 8     Bratunac.  The majority has found that the plan to murder them had

 9     already begun to materialise by this time.

10             In Bratunac, on 12 and 13 July, the men and boys from Potocari

11     were joined by thousands of Bosnian Muslim men from the column that had

12     started moving towards Tuzla, who had been captured by or surrendered to

13     the Bosnian Serb forces.  These men were detained in buildings and buses

14     throughout Bratunac where they suffered physical and verbal abuse.  Some

15     of the men were murdered in Bratunac town and the Bratunac area.

16             On the morning of 14 July, following the massive logistical

17     operation to procure vehicles and fuel, thousands of Bosnian Muslim men

18     were transported north to Zvornik municipality where they were detained

19     for a short period of time before meeting their ultimate fate at the

20     hands of Bosnian Serb forces.  The Chamber feels compelled to highlight a

21     number of such killing incidents.

22             In the late afternoon of 13 July, hundreds of Bosnian Muslim men

23     were transported from a meadow in Sandici by bus and some directed by

24     foot to a one-storey building known as the Kravica warehouse in the

25     Bratunac area.  When the warehouse was packed full, Bosnian Serb forces

Page 19578

 1     started firing at the men inside, using machine-guns as well as hand- and

 2     rocket-propelled grenades.  They fired for hours with intermittent lulls

 3     in the shooting in which the wounded moaned and called out names.  These

 4     executions continued until the morning of the 14 of July.  The accused's

 5     immediate subordinate, Beara, was directly involved in the burial

 6     operation of between 600 and 1.000 Bosnian Muslim men who the Chamber

 7     found had been murdered at the warehouse between 13 and 14 July 1995.

 8             On the evening of 13 and morning of 14 July, hundreds of Bosnian

 9     Muslim men were transported by bus to a school in Grbavci located near

10     Orahovac.  There they were crammed into the gymnasium of the school

11     building.  In the afternoon of 14 July, they were transported by bus to

12     two separate killing sites nearby.  Upon disembarking they were shot by

13     Bosnian Serb forces.  Some of the wounded prisoners were cursed and left

14     to suffer in agony before they were finally killed.

15             One of the groups of prisoners included a boy of approximately 5

16     to 6 years old who, after being shot at, stood up from the pile of bodies

17     and called out for his father.  Up to 2.500 Bosnian Muslim men were

18     murdered at Grbavci school on that day.  They too were buried in a mass

19     grave.

20             On the morning of 16 July, hundreds of Bosnian Muslim men who had

21     been detained at a school near the village of Pilica were transported to

22     a plot of land known as the Branjevo Military Farm.  Upon arrival at this

23     location they were led down a path to a meadow where they were shot at by

24     Bosnian Serb forces.  After each round of shooting, the forces asked

25     whether there were any survivors.  Those who answered were shot in the

Page 19579

 1     head.  The executions lasted until the late afternoon of the 16th of

 2     July, killing approximately 1.000 to 1.500 Bosnian Muslim men.  Following

 3     this massive execution, another approximately 500 Bosnian Muslim men were

 4     executed by Bosnian Serb forces inside a cultural centre in Pilica.

 5     There are no known survivors of this execution.  These bodies were

 6     transported to Branjevo Military Farm, where over the course of the next

 7     day they were buried together with the bodies of people killed at the

 8     farm.  At least 1.656 Bosnian Muslim men were murdered at the Branjevo

 9     Military Farm and Pilica cultural centre.

10             The Chamber has found that the suffering these men went through

11     in the moments leading up to their deaths must have been unbearable.  On

12     many occasions, those who were waiting to be shot saw others before them

13     executed.  The few survivors who lived to provide their testimony before

14     the Chamber gave harrowing accounts of what they had to endure.

15             Following this murderous operation and the burial of the

16     thousands of bodies in mass graves in September and October, Bosnian Serb

17     forces triggered by a Main Staff order took measures to conceal these

18     crimes.  A massive reburial operation was set in place.  The victims from

19     Kravica warehouse, those killed in Orahovac, Petkovci dam, Kozluk,

20     Branjevo Farm, and Pilica that had been buried after their murder were

21     disinterred and buried again in secondary grave-sites at, to name a few,

22     Hodzici road, the Snagovo-Lipje road, and a total of 12 sites along the

23     Cancari road.  Several of the accused subordinates, including Beara and

24     Popovic, played a central role in this operation.

25             The majority, Judge Nyambe dissenting, has found that from

Page 19580

 1     13 July to sometime in August 1995, at least 4.970 Bosnian Muslim men who

 2     are the subject of the charges in the indictment were murdered during the

 3     implementation of the JCE to murder.  The majority emphasises that this

 4     is a conservative calculation of the minimum number.  The majority finds,

 5     Judge Nyambe dissenting, that the total number of Bosnian Muslim men from

 6     Srebrenica who were killed is, at a minimum, closer to 6.000.

 7             Following the forcible transfer of the women, children, and

 8     elderly from Potocari on the 12 and 13 July and concurrent with the start

 9     of the implementation of the JCE to murder, by that time -- by that same

10     time the VRS made preparations to launch an operation against the nearby

11     enclave of Zepa.  This attack followed the same pattern and course as the

12     attack on the Srebrenica enclave just days prior and included some of the

13     same forces.  The Bosnian Muslim population from Zepa, in panic with the

14     news of the forcible removal from Potocari having started to spread,

15     sought refuge in the hills above Zepa.  On 13 July, a meeting was held

16     between the VRS and representatives of the Bosnian Muslim War Presidency

17     of Zepa, at which the accused informed them that the only alternative to,

18     quote/unquote "evacuation" of the population was the use of military

19     force by the VRS.  Attacks by the VRS against surrounding villages in the

20     weeks prior had already resulted in the destruction of at least 30

21     Bosnian Muslim homes, further instilling fear in the Bosnian Muslim

22     population.

23             On 14 July, following the refusal of this alleged evacuation on

24     the terms imposed by the accused, the VRS shelled the centre of the

25     enclave and took control of UNPROFOR observation posts.  In the days

Page 19581

 1     thereafter, the VRS exerted pressure on the civilians hiding in the woods

 2     to return to Zepa in order to be transported out of the enclave.

 3     Following the failure of a second meeting held on 19 July, on 24th of

 4     July the Bosnian Muslim representatives were forced to sign an agreement

 5     concerning the disarmament of the ABiH in the enclave and the,

 6     quote/unquote, "evacuation" of the civilian population.  From 25 to 27

 7     July, under the direct authority of the accused who was present in the

 8     enclave throughout the entire operation, nearly 4.400 Bosnian Muslim

 9     women, children, and elderly were forcibly removed from Zepa enclave.  As

10     with the Bosnian Muslim population that had taken refuge in Potocari, the

11     majority has found, Judge Nyambe dissenting, that they did not have a

12     choice; their fate was decided for them.  Mladic appears on video footage

13     entering many of the buses of tired, hungry, and frightened Bosnian

14     Muslims telling them that he was giving them their life as a gift.

15     Meanwhile, with the news of the fate of the men of Srebrenica having

16     spread, the able-bodied men from the Zepa enclave remained in hiding in

17     the woods, with some of them making their way across the Drina River into

18     Serbian territory in fear for their lives.

19             The Chamber now turns to a brief summary of its legal findings.

20             The Chamber has found that there was a state of armed conflict in

21     Bosnia and Herzegovina at the time the crimes were committed and that

22     these crimes were connected to this conflict.  The Chamber has also found

23     that there was a widespread and systematic attack directed against the

24     Bosnian Muslim populations of the Srebrenica and Zepa enclaves and the

25     majority, Judge Nyambe dissenting, has found that the acts of the accused

Page 19582

 1     were a part of that attack.  As such, the jurisdictional requirements set

 2     out in Articles 3 and 5 of the Statute have been met.  On the basis of

 3     the factual findings summarised above, the majority, Judge Nyambe

 4     dissenting, has moreover found beyond reasonable doubt that the two joint

 5     criminal enterprises charged in the indictment existed.

 6             The majority recalls, Judge Nyambe dissenting, that at least

 7     4.970 men and boys subject of the charges of the indictment were murdered

 8     by Bosnian Serb forces.  The Chamber has found that these forces carried

 9     out the murders with discriminatory intent so as to constitute

10     persecutions.  During the mistreatment, detention, and up to the moment

11     of their murder, these men were cursed and mocked and often beaten for

12     their affiliation to the Islamic faith.  Some were forced to sing Serb

13     songs or sing pro-Serb slogans immediately before their death.  The

14     Chamber has found that the harm inflicted upon these men rises to the

15     level of serious bodily and mental harm and constitute acts of genocide.

16             Turning to the murders of the three Bosnian Muslim leaders of

17     Zepa:  Mehmed Hajric, Avdo Palic, and Amir Imamovic, the majority has

18     found that these murders, similarly, constitute acts of genocide.  These

19     three men were members of the Zepa's War Presidency and important and

20     prominent leaders within the enclave.  They were arrested shortly after

21     the completion of the operation to forcibly remove the Bosnian Muslims

22     from Zepa 37.  They were held in detention for many days separately from

23     others.  The majority, Judge Nyambe dissenting, has found that sometime

24     in the middle of August 1995, Bosnian Serb forces killed them and buried

25     them in the same mass grave.  The majority has found that while they were

Page 19583

 1     only three in number, in view of the size of the Zepa enclave, these

 2     three men constituted the core of its civilian and military leadership.

 3     It has found that the killing of Avdo Palic, given his status as a

 4     defender of Zepa's Bosnian Muslim population, had a symbolic purpose,

 5     signifying that there was no hope of survival for this population in the

 6     enclave.

 7             The majority has also taken into account the fate of the

 8     remaining population of Zepa, their forcible transfer immediately prior

 9     to the killing of three of Zepa's most prominent leaders is a factor

10     which supports the majority's finding of genocidal intent.  The majority

11     has found that in the case of Zepa, removing its Bosnian Muslim civilian

12     population, destroying their homes and their mosque, and killing three of

13     their most prominent leaders was done with the purpose of ensuring that

14     the Bosnian Muslim population of this enclave would not be able to

15     reconstitute itself.  As such, the majority has found that Mehmed Hajric,

16     Avdo Palic, and Amir Imamovic were killed with the intention to destroy

17     this population.

18             The majority has found further that the suffering of the women,

19     children, and elderly who were forcibly transferred from the Srebrenica

20     and Zepa enclaves rises to the level of serious bodily or mental harm so

21     as to amount to genocide.

22             In its determination of whether the Bosnian Serb forces

23     deliberately inflicted conditions of life that were calculated to bring

24     about the destruction of the Bosnian Muslims in eastern Bosnia and

25     Herzegovina, the majority, Judge Nyambe dissenting, has considered the

Page 19584

 1     overall effect of not only the forcible transfer operations of the women

 2     and children but also the killing of the men.  The majority finds that

 3     the combined effect of the forcible removal and murder operation had a

 4     devastating effect on the physical survival of the Bosnian Muslim

 5     population of eastern Bosnia and Herzegovina and is satisfied that these

 6     operations were aimed at destroying this population.

 7             In conclusion, the majority, Judge Nyambe dissenting in part,

 8     finds beyond reasonable doubt that the crimes of genocide, conspiracy to

 9     commit genocide, extermination, persecutions, inhumane acts through

10     forcible transfer, and murder have been established.  The Chamber,

11     however, did not find that the crime of deportation was proved beyond

12     reasonable doubt.  Its reasons in this regard are set out in detail in

13     the written judgement.

14             I now turn to the summary of the majority's findings on the

15     accused's responsibility for the crimes charged.

16             Mr. Tolimir was the chief of the sector for intelligence and

17     security affairs of the Main Staff of the VRS, a position to which he had

18     been appointed already in 1992, following almost 20 years of experience

19     in this area of work.  In June of 1994, he was promoted to general-major.

20     He was one of the seven assistant commanders in the Main Staff and

21     directly responsible to Main Staff Commander Mladic, with whom he had a

22     particularly close relationship.  Mladic often consulted the accused

23     before taking a decision and considered him to be a part of his, and I

24     quote, "inner core."  Witnesses who testified before the Chamber referred

25     to the accused as Mladic's right hand, his eyes and ears, and closer to

Page 19585

 1     being an equal to Mladic than a subordinate.  The Chief of Staff of the

 2     VRS Main Staff Milovanovic testified that the accused was the

 3     best-informed officer of the VRS and that he, I quote, "always knew more"

 4     than his immediate subordinates, the chief of the intelligence

 5     administration Petar Salapura and the chief of the security

 6     administration Ljubisa Beara.

 7             Mr. Tolimir was responsible for implementing all security and

 8     intelligence related orders issued by Mladic, and monitored this

 9     implementation through his supervision of all subordinates in the

10     security and intelligence organs at the corps and brigade levels.  One of

11     his most significant tasks was to prevent the leakage of information and

12     as described by one witness to, I quote, "cover up the intention of the

13     VRS."  He was responsible for the assignments issued to the military

14     police which fell under the professional command of the security organs

15     and was duty-bound to control the implementation of these assignments.

16     He was kept informed of the work of the military police units on the

17     ground.  He was also responsible for the treatment and detention of

18     prisoners of war.  He oversaw the work of the Main Staff affiliated

19     units, including the 10th Sabotage Detachment and the 65th Protection

20     Regiment.

21             The Chamber has found that there was an efficient reporting

22     system in place within the VRS and that the accused received daily

23     reports, both written and oral, from the subordinate intelligence and

24     security organs.  He took part in daily meetings attended by the inner

25     circle of command of the VRS, at which the most important decisions would

Page 19586

 1     be taken.  These meetings were attended by corps commanders when

 2     decisions concerning activities on an operational level would be made.

 3     At these meetings, Mr. Tolimir gave briefings on the security situation

 4     in the Republika Srpska, provided intelligence information, and made

 5     proposals for counter actions.  He was kept apprised of any orders that

 6     Mladic gave directly to security and intelligence officers under his

 7     professional command.  Mr. Tolimir was, moreover, capable of exercising

 8     general military command and could be dispatched to a command position,

 9     as occurred in Zepa at the end of July where he assumed control over the

10     operation to forcibly remove the Bosnian Muslim population of the

11     enclave.  He was one of the central contact persons for UNPROFOR with

12     regard to convoy matters relating to both enclaves and he was the

13     counterpart of UN Generals Nicolai, Janvier, Smith, and Gobillard.

14             The majority has considered the accused's specific role in the

15     VRS Main Staff when analysing his acts and conduct.  The majority,

16     Judge Nyambe dissenting, has found that the accused was a member of the

17     JCE to forcibly remove the Bosnian Muslim population from the enclaves

18     from March 1995 onwards and became a member of the JCE to murder the

19     able-bodied men from Srebrenica at the latest in the afternoon of

20     13 July.  He had full knowledge of the despicable criminal operations

21     envisioned by these two enterprises and shared the intent to further

22     their goals.  The basis of his knowledge and the contributions of these

23     JCEs is set out in full in the written judgement.

24             For the purposes of this summary, the majority shall highlight

25     some of the accused's actions from which it has inferred that the accused

Page 19587

 1     shared the intent with other members of the JCE to murder and the JCE to

 2     forcibly remove and furthered these criminal operations.  It must be

 3     stressed that this is by no means an exhaustive list.

 4             One, from March 1995 onwards, the accused and his subordinates in

 5     the security organ were closely involved in the process approving or

 6     rejecting UNPROFOR re-supply convoys and humanitarian aid convoys into

 7     the enclaves of Srebrenica and Zepa which contributed to the steadily

 8     increasing unbearable situations in the enclaves.

 9             Two, in communications with UNPROFOR in the days leading up to

10     the take-over of Srebrenica by VRS forces, he denied the VRS attacks on

11     the enclave, stalled communication on this issue, and made false claims

12     that the VRS would do its best to calm the situation, while at the same

13     time forwarding to the Drina Corps on 9 July 1995 Karadzic's order to

14     continue operations to take over Srebrenica.

15             Three, the accused's subordinate Main Staff intelligence officer

16     Radoslav Jankovic took part in the Hotel Fontana meetings held on the

17     night of 11 and the morning of 12 July 1995.  The majority has found that

18     the accused was informed and had knowledge of the discussions held at

19     these meetings.  Jankovic was present on the ground during the forcible

20     removal of the Bosnian Muslim population from Potocari on 12 and 13 July.

21             Four, in the afternoon of 13 July, the accused proposed that

22     Bosnian Muslim men who had been captured in the Kasaba area and who were

23     being detained along the main Milici-Zvornik road be placed indoors to

24     remove them from sight.  This proposal was followed up by an order by

25     Mladic in line with the accused's proposal.  The majority has found that

Page 19588

 1     the accused's proposal was made with a view to concealing the murder

 2     plan.  Five, also on 13 July, with full knowledge of the gathering of

 3     approximately 25.000 to 30.000 Bosnian Muslim civilians at the UN

 4     compound in Potocari, and of the separation of able-bodied men, the

 5     accused informed chief of intelligence and security of the East Bosnia

 6     Corps Milenko Todorovic that the preparations for the arrival of 1.000 to

 7     3.000 Bosnian Muslim men at a prison facility in Batkovic should cease.

 8     The majority has found that the accused, in ordering that the

 9     preparations should be stopped, had knowledge of the fact that these men

10     would be murdered instead.

11             Six, following the completion of the forcible removal operation

12     in Potocari, at a meeting at Boksanica on the outskirts of Zepa enclave

13     on 13 July the accused stated to those present that, I quote, "Srebrenica

14     has fallen and now it's Zepa's turn," adding that the only alternative to

15     the evacuation of Zepa's population was the use of military force.  Late

16     that same evening he proposed that Zepa be captured within 21 hours in

17     order to, I quote, "avoid the condemnation and reaction by the

18     international community."

19             Seven, on 21st July 1995, following days of intense shelling of

20     Zepa by the VRS and aware of the fact that the civilian population of

21     Zepa had already sought refuge in uninhabited places, the accused

22     proposed that in order to accelerate the surrender of the ABiH forces,

23     groups of fleeing Bosnian Muslim civilians should be, I quote,

24     "destroyed."

25             Eight, from 25 to 27 July 1995, he was present in Zepa and

Page 19589

 1     commanded the forcible removal operation of the Bosnian Muslims as they

 2     were packed into buses and driven to Kladanj walking around with his

 3     pistol pointing up at the sky, intimidating this vulnerable group of

 4     mainly women, children, and elderly.

 5             Nine, through his position as chief of intelligence and security,

 6     he had the legal duty to protect prisoners of war.  Despite being able to

 7     do so, he did not.  Following the commission of crimes by Bosnian Serb

 8     forces, including by his subordinates, he failed to take any action

 9     against them, he did not distance himself from their crimes, and instead

10     assisted in the cover-up of the thousands of murders committed by Bosnian

11     Serb forces.

12             I will now turn to the majority's findings on the counts.  In its

13     determination of the findings on the counts charged, the majority

14     particularly took into account Mr. Tolimir's position within the

15     Main Staff of the VRS and his capacity as chief of the sector for

16     intelligence and security affairs.  The majority has, in addition, taken

17     into account his education, experience as an officer, and his general

18     capabilities with respect to his duties and responsibilities, stemming

19     from his specific professional position.

20             The majority has found that Mr. Tolimir has had extensive

21     knowledge of the situation on the ground from March 1995 and onwards.

22     The majority reiterates its findings that the accused significantly

23     contributed to both of the JCEs charged, including through his failure to

24     protect prisoners of war.  The crimes that were committed were massive in

25     scale, severe in their intensity, and devastating in their effect.  The

Page 19590

 1     implementation of the two JCEs occurred over a very short period of time

 2     in a small geographical area.  The accused played a co-ordinating and

 3     directing role throughout the entirety of this period.  The majority

 4     finds that he had knowledge of the genocidal intent of other JCE members,

 5     including that of his security and intelligence organs, who the majority

 6     has found were extensively involved in carrying out the JCEs.  The

 7     accused encouraged the use of derogatory terms, thereby provoking ethnic

 8     hatred amongst members of the Bosnian Serb forces, and sending out a

 9     message that Bosnian Muslims were human beings of a lesser value.

10             On 21 July 1995, the accused proposed to destroy, I quote,

11     "groups of Muslim refugees," with a view of accelerating the surrender of

12     the ABiH in Zepa.  The majority finds that this proposal manifests the

13     accused's own determination to destroy the Bosnian Muslim population.

14             The only reasonable inference that the majority can draw on the

15     totality of the evidence is that the accused not only had knowledge of

16     the genocidal intent of others but also possessed it himself.  He is,

17     therefore, responsible for the crime of genocide.  He is also

18     responsible, pursuant to JCE III, for the murders of the three Bosnian

19     Muslim men from Zepa, which the majority has found constituted genocide.

20     The accused's involvement and that of his subordinates in the arrest and

21     detention of these three men, on the basis of which the Chamber has made

22     its finding of his responsibility are set out in detail in the written

23     judgement.

24             Having found that there was an agreement between two or more

25     people to commit the crime of genocide and the accused entered into this

Page 19591

 1     agreement by the latest on the afternoon of 13 July 1995, the majority

 2     also finds the accused responsible for the crime of conspiracy to commit

 3     genocide with respect to the murder of the able-bodied men from

 4     Srebrenica.

 5             Having found, in addition, that a single, organised, and

 6     large-scale operation to murder Bosnian Muslim males existed with the

 7     requisite intent to kill on a massive scale; that the accused had

 8     knowledge of the scale and the scope of this operation; and that he

 9     consciously and deliberately supported the objective of this operation,

10     the majority finds beyond reasonable doubt that the accused is

11     responsible for the crime of extermination.

12             The majority is, moreover, satisfied beyond reasonable doubt that

13     through his participation in the JCE to murder, including his failure to

14     protect the prisoners of war, the accused had the requisite intent to

15     murder the able-bodied men from Srebrenica and is therefore responsible

16     for the crime of murder as charged.  The majority further finds the

17     accused criminally responsible for a number of murders that were pleaded

18     as opportunistic and foreseeable targeted killings on the basis that they

19     were reasonably foreseeable to him pursuant to a mode of liability

20     referred to as JCE III.

21             With respect to the crime of persecutions, the majority recalls

22     its findings that the murders of the able-bodied Bosnian Muslim males,

23     the cruel and inhumane treatment of the Bosnian Muslim population, the

24     terrorisation of the civilian population, the destruction of homes of the

25     Bosnian Muslims and the mosques in Srebrenica and Zepa, and the forced

Page 19592

 1     removal of women, children, and the elderly out of the enclaves were all

 2     committed with the intent to discriminate on political, racial, or

 3     religious grounds and amount to persecutions.  The majority concludes

 4     beyond reasonable doubt that the accused possessed the requisite

 5     discriminatory intent as he furthered the goal of the two JCEs, resulting

 6     in the crimes that have been established.

 7             Finally, the majority recalls its finding that the accused,

 8     having been found to be a member of the JCE to forcibly remove from its

 9     inception in March of 1995, shared the intent with other members of the

10     JCE to remove Bosnian Muslim populations from the enclaves and

11     significantly contributed to the realisation of this common purpose.  The

12     majority finds that the accused possessed the requisite intent to

13     forcibly displace the Bosnian Muslim population within a national border,

14     and is therefore criminally responsible for inhumane acts through

15     forcible transfer as a crime against humanity.

16             The Chamber did not find, however, that the transfer of Bosnian

17     Muslim males to Bratunac and Zvornik, as charged, constituted the crime

18     of forcible transfer, nor - as it indicated before - that the movement of

19     the Bosnian Muslim men from Zepa to Serbia constituted the crime of

20     deportation, for reasons set out in full in the written judgement.

21             Before turning to its disposition, the majority summarises, in

22     short, the main factors it considered when determining the sentence.

23     Bound by the Statute and the Rules, the majority determined the gravity

24     of the offences of which the accused has been found guilty as well as any

25     aggravating or mitigating circumstances.  In assessing the gravity of the

Page 19593

 1     offence, the majority has considered, in particular, the accused's

 2     contribution to the horrific mass execution of thousands of men and boys

 3     as part of an organised operation aimed at destroying the Bosnian Muslim

 4     population.  It has, furthermore, considered the extreme suffering of the

 5     approximately 30.000 to 35.000 women and children forcibly removed from

 6     both enclaves and their inability to live a normal and constructive life

 7     to this day.  The irreparable impact of these crimes on the victims and

 8     the accused's responsibility for their suffering have to be taken into

 9     account.

10             With respect to aggravating circumstances, the majority has

11     considered, in particular, the accused's high rank and central position

12     within the VRS Main Staff, his duty and failure to ensure the safety of

13     the thousands prisoners of war following the fall of Srebrenica, his

14     deliberate and active involvement and pivotal role in two JCEs, and the

15     accused's abuse of his position in covering up the crimes that were

16     committed.

17             The majority considered several factors in mitigation, none of

18     which it placed any weight on, save for the accused's good behaviour in

19     detention and following the start of the trial phase.  The majority

20     notes, however, that this sort of behaviour should be commonplace and,

21     viewed with the accused's obstructive behaviour during the pre-trial

22     proceedings, gives this good behaviour little weight.

23             This completes the summary of findings.  I shall now read out the

24     disposition.

25             Mr. Zdravko Tolimir, would you please stand.

Page 19594

 1                           [The accused stands up]

 2             JUDGE FLUEGGE:  The Chamber by majority, Judge Nyambe dissenting,

 3     finds you Zdravko Tolimir guilty pursuant to Article 7(1) of the Statute,

 4     through commission of the following crimes:

 5             Count 1:  Genocide under Article 4(3)(a) of the Statute;

 6             Count 2:  Conspiracy to commit genocide under Article 4(3)(b) of

 7     the Statute;

 8             Count 3:  Extermination, a crime against humanity under

 9     Article 5(b) of the Statute;

10             Count 5:  Murder, a violation of the laws or customs of war under

11     Article 3 of the Statute;

12             Count 6:  Persecutions, a crime against humanity under

13     Article 5(h) of the Statute;

14             Count 7:  Inhumane acts through forcible transfer, a crime

15     against humanity under Article 5(i) of the Statute.

16             In relation to the following count, on the basis of the principle

17     relating to cumulative convictions, the majority does not enter a

18     conviction:

19             Count 4:  Murder, a crime against humanity under Article 5(a) of

20     the Statute.

21             The Chamber finds you, Zdravko Tolimir, not guilty, and thus

22     acquits you of the following count:

23             Count 8:  Deportation, a crime against humanity under

24     Article 5(d) of the Statute.

25             The majority has set out in the written judgement the factors it

Page 19595

 1     has taken into account in its determination of the sentence.

 2             Zdravko Tolimir, you are hereby sentenced to life imprisonment.

 3     You are entitled to credit for the time served in detention until the day

 4     of this judgement and the period pending the finalisation of arrangements

 5     for your transfer to the state where you will serve your sentence.  You

 6     shall remain in the custody of this Tribunal until the day of your

 7     transfer.  You may be seated.

 8                           [The accused sits down]

 9             JUDGE FLUEGGE:  The Registry shall now hand out copies of the

10     judgement to the parties.

11             This concludes the proceedings.  We adjourn.

12                           --- Whereupon the hearing adjourned at 4.06 p.m.