Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Wednesday, 12 November 2014

 2                           [Appeals Hearing]

 3                           [Open session]

 4                           [The appellant entered court]

 5                           --- Upon commencing at 9.52 a.m.

 6             JUDGE MERON:  Please be seated.  [Microphone not activated]

 7             Thank you so much, and, Registrar, would you please call the

 8     case.

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

10     IT-05-88/2-A, the Prosecutor versus Zdravko Tolimir.

11             JUDGE MERON:  Thank you.

12             Mr. Tolimir, can you hear the proceedings in a language you

13     understand?  Mr. Tolimir?

14             THE APPELLANT: [Interpretation] Yes, I do.  Thank you, Your

15     Honour.

16             JUDGE MERON:  Thank you, Mr. Tolimir.

17             Sorry?

18             JUDGE GUNEY:  I have no audio.  I can't hear anything.

19             JUDGE MERON:  Could somebody help Judge Guney.

20             I will now ask for the appearances of the parties.

21             Regarding Mr. Tolimir.  Mr. Tolimir, we note that you are

22     self-representing.  We recall that on the 20th of June, 2014, the

23     Appeals Chamber granted your request for a right of audience at the

24     Appeal Hearing to your legal advisor, Mr. Aleksandar Gajic, and

25     authorised Mr. Gajic to make oral submissions at the Appeal Hearing.

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 1             Mr. Tolimir, I suppose you confirm that, and would you like to

 2     add anything to that?  No, you are -- it's okay.

 3             THE APPELLANT: [Interpretation] Thank you.  Greetings to all

 4     present and I would like this trial to be concluded according to God's

 5     will.  Thank you.

 6             JUDGE MERON:  Thank you, Mr. Tolimir.

 7             For the Prosecution.

 8             MR. KREMER:  Good morning, Mr. President, Your Honours.  My name

 9     is Peter Kremer.  I am representing the Prosecution this morning.  I'm

10     assisted by Lada Soljan, Todd Schneider, Kyle Wood, and Nema Milaninia.

11     And our case manager today is Janet Stewart.  Thank you.

12             JUDGE MERON:  Thank you, Mr. Kremer.  It's nice to see you again

13     in court.

14             MR. KREMER:  This will be the last opportunity.  Thank you.

15             JUDGE MERON:  I will now summarise the appeal and the manner in

16     which we will proceed today.

17             The case concerns the responsibility of Mr. Tolimir for crimes

18     committed in Srebrenica and Zepa enclaves and in eastern Bosnia in 1995.

19     At the time, Mr. Tolimir was an assistant commander in the chief of the

20     sector for intelligence and security affairs of the Main Staff of the

21     Army of the Republika Srpska or VRS.

22             The Trial Chamber, Judge Nyambe dissenting, found that Tolimir

23     participated in two joint criminal enterprises alleged in the indictment.

24     A joint criminal enterprise, to murder the able-bodied men from the

25     Srebrenica enclave, and a joint criminal enterprise to forcibly remove

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 1     the Bosnian Muslim population from the Srebrenica and Zepa enclaves.

 2             The Trial Chamber by majority, Judge Nyambe dissenting, found

 3     Tolimir guilty -- the Trial Chamber by majority, Judge Nyambe dissenting,

 4     found Tolimir guilty pursuant to Article 7(1) of the Statute of the

 5     Tribunal of genocide, conspiracy to commit genocide, extermination,

 6     murder, persecution, and inhumane acts through forcible transfer.

 7             The Trial Chamber, Judge Nyambe dissenting, sentenced Mr. Tolimir

 8     to life imprisonment.  Mr. Tolimir advances 25 grounds of appeal,

 9     challenging his convictions and his sentence and requests that the

10     Appeals Chamber reverse his convictions in their entirety or, in the

11     alternative, significantly reduce his sentence.

12             In grounds 1 through 4 of his appeal, Mr. Tolimir challenges the

13     Trial Chamber's decision to take judicial notice of adjudicated facts and

14     its evaluation of certain evidence.  In ground 6 through 13, he

15     challenges some of the Trial Chamber's legal and factual findings

16     regarding extermination and forcible transfer as crimes against humanity.

17     He further challenges the Trial Chamber's findings with respect to the

18     crime of genocide.

19             In grounds 15 and 14 through 20, Mr. Tolimir contests the

20     majority's legal and factual findings concerning his responsibility for

21     participation in the two joint criminal enterprises:  That is the joint

22     criminal enterprise to murder and the joint criminal enterprise to

23     forcibly remove.

24             In grounds 21 through 23, he challenges the majority's findings

25     regarding his responsibility in relation to specific counts.

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 1             Finally, in ground 24, Mr. Tolimir contests the majority's

 2     findings on his cumulative convictions, and in ground 25 its finding in

 3     relation to his sentence.

 4             The Prosecution responded that all grounds of Mr. Tolimir's

 5     appeal should be dismissed.

 6             I would like to draw the attention of the parties to the matters

 7     that the Appeals Chamber invited the parties in the addendum to the

 8     scheduling order to discuss.  This addendum was filed on

 9     31 October, 2014.

10             Throughout the hearing, counsel may argue the grounds of appeal

11     in any order they consider suitable.  Throughout the hearing, counsel may

12     argue the grounds of appeal in any order they consider suitable for their

13     presentation.  However, I would urge counsel not to repeat or summarise

14     the arguments presented in their briefs.  The Appeals Chamber is familiar

15     with these arguments.

16             Furthermore, the parties are obliged to provide precise

17     references to materials supporting their oral arguments.  The Judges, of

18     course, may interrupt the parties at any time to ask questions or they

19     may ask questions following each party's submissions or at the end of the

20     hearing.

21             I would also like to remind the parties to be particularly

22     careful not to reveal any information that could identify a protected

23     witness or other protected information.

24             Finally, I reiterate that the appeal process is not a trial

25     de novo and the parties must refrain from repeating their cases presented


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 1     at trial.  Arguments must be limited to alleged errors of law which

 2     invalidate the trial judgement or alleged rules of fact which occasion a

 3     miscarriage of justice.

 4             As set out in the Scheduling Order, this hearing will proceed as

 5     follows.  First, we will hear submissions from legal advisor from

 6     Mr. Tolimir for two hours.  After the lunch break, the Prosecution will

 7     respond for two hours.  After a pause of 20 minutes, legal advisor for

 8     Mr. Tolimir will have 30 minutes to reply.  Finally, Mr. Tolimir will

 9     have ten minutes for a personal address if he wishes to do so.

10             Having now stated the manner in which we will proceed, I would

11     invite the legal advisor for Mr. Tolimir to make submissions.

12             Mr. Gajic, please.

13             MR. GAJIC: [Interpretation] Mr. President, esteemed members of

14     the Appeals Chamber, it is my honour and with great responsibility to

15     appear here before you today, particularly in the case which falls in the

16     category of serious Srebrenica cases which raises a plethora of

17     disputable facts and legal issues.

18             THE INTERPRETER:  Could Mr. Gajic please try to read more slowly.

19     Thank you.

20             MR. GAJIC: [Interpretation] That may have an impact on the final

21     outcome of this case.

22             Due to the time limitation of two hours that I have, the entire

23     submission or the great part thereof will be dedicated to the questions

24     posed by the Appellate Chamber Judges that were contained in the addendum

25     to the Scheduling Order and which are -- enter the core of the very case.

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 1             Before I start giving answers to the Judges' questions, I would

 2     like to say that this appeal's procedure is particularly difficult

 3     because members of the Appeals Chamber have taken diametrically opposing

 4     views not only on one legal criteria or they were in disagreement about

 5     one or two facts but rather Judge Nyambe expressed a dissenting opinion

 6     portraying a completely different picture to the one established by the

 7     Trial Chamber.

 8             JUDGE MERON:  You mean the Trial Chamber, not the Appeals

 9     Chamber.

10             MR. GAJIC: [Interpretation] Yes, of course, Mr. President.

11             Now I'm going to begin with the answers posed by the

12     Appeals Chamber and I will follow the order in which they were posed in

13     the addendum for the Scheduling Order.

14             The first question of the Chamber is regarding appeals ground 7

15     and 10 is whether the operations of the Bosnian Serbs in Zepa were acts

16     of genocide, if they are perceived separately from the killing in

17     Srebrenica.

18             The position of the appellant is even though they are perceived

19     either separately or together with the acts concerning Srebrenica, the

20     operations of the Bosnian Serbians in Zepa cannot be considered as acts

21     of genocide because there is no exhibit on record that would serve as a

22     proper basis to conclude that there was an intent of genocide on the

23     population.  There is not a single act that would constitute genocide.

24     There were no killings, there were no infliction of heavily bodily harm

25     or mental harm or placing the whole group under the conditions that were

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 1     conducive to its destruction.

 2             Ground 7 concerns an error of law and it considers the questions

 3     whether forcible transfer can be considered as genocide according to

 4     Article 4(2) of the Statute and whether there was erroneous finding as

 5     stated in appeals ground number 10, among others, which state that

 6     genocide was committed in Zepa.

 7             The transfer of population as such cannot be considered as an act

 8     of genocide.  There was some proposals during the drafting of the

 9     genocide convention to qualify it as genocide.  Professor Bartos, who

10     represented Yugoslavia in these negotiations, invoked the case of the

11     relocation of the Slav population during the Second World War which was

12     carried out by the Nazis, the relocation of the population as qualified

13     equal to intentional destruction of a group.  It was concluded that the

14     genocide may be considered by forcing members of the groups to abandon

15     their genocide.

16             This proposal was made by Syria, it was supported by Yugoslavia,

17     but eventually it was rejected by a great majority, 22 votes against,

18     five for, and eight abstained with the explanation that it is far too

19     separate from the concept of genocide.

20             JUDGE MERON:  I don't understand the -- you said it was concluded

21     that the genocide may be considered by forcing members of the groups to

22     abandon their genocide.  You meant "perpetrators" or "victims"?  Are you

23     speaking of abandoning their places of abode or what?

24             MR. GAJIC: [Interpretation] Yes, precisely so.  To abandon their

25     place of residence or to be forcibly relocated from the places where they

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 1     had been living before.  Here of course I'm talking --

 2             JUDGE MERON:  Okay.  So not to abandon their genocide but to

 3     abandon their places of residence.  That's what I thought.  Okay.  It's

 4     clear now.  You can proceed.

 5             MR. GAJIC: [Interpretation] Of course it seems that I need to

 6     speak slowly because I have to wait for quite some time to see on the

 7     screen the interpretation of what I am saying.

 8             The Trial Chamber, however, when it classified forcible

 9     relocation of population as a serious mental impairment in keeping with

10     Article 4 of the Statute relied on the draft convention on genocide which

11     can be seen in footnote of the judgement 3107 in which the notion of a

12     genocide is defined in a totally different way than in the Statute of the

13     Tribunal and the convention on the prevention and punishment of the crime

14     of genocide which probably alleged to the fact that in its analysis, it

15     separated from the concept of genocide as exists in the applicable

16     international law and to provide a totally different definition of

17     serious mental harm.

18             Let me remind you, the Chamber, that this kind of mental harm

19     decided that it is a harm which is not so serious as the temporary

20     resentment, anxiety, or humiliation.  It does -- we need not have

21     permanent consequences or that cannot be or may not be irreversible but

22     that it inflicted long-term and serious impairment on the ability of an

23     individual to lead a normal and constructive life.  This definition of

24     mental harm is in keeping with the part of the definition that is

25     contained in the convention draft which was later on deleted and which in

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 1     addition to the applicable definition of genocide and a criminal act

 2     against the prevention -- protection of group in order for its gradual or

 3     partial destruction added the following:  In order to prevent its

 4     prevention and development, according to international law the prevention

 5     of preservation and development of group is not an element of genocide.

 6             [B/C/S spoken] ... of the convention on genocide indicated the

 7     notion of mental harm found its place in the convention at the proposal

 8     of China which in explaining its proposal made reference to the acts

 9     committed by the Japanese occupation forces against the Chinese

10     population by the use of narcotic and cited that although they were not

11     so spectacular as mass killings in gas chambers in Nazi Germany, its

12     result is not less lethal.

13             Pages 59 to 60.  In terms of the convention on genocide, a notion

14     of serious mental harm cannot be considered as harm that makes an

15     individual unable to lead a normal and constructive life but it has to be

16     serious enough in order to pose a threat to a total or partial

17     destruction of a group as understood by biological or physical survival.

18     This interpretation, which we stated in our brief, is further supported

19     by a declaration proposed by the US to the instrument on the ratification

20     of the Convention on Genocide believing that mental harm is only, and I

21     quote, "permanent impairment of mental facilities through drugs, torture,

22     and similar techniques."

23             There is no doubt that genocide, as the most serious crime

24     recognised by international law, provides protection of the existence of

25     a national, racial, religious, or ethnic group as such.  If we look at

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 1     the whole of the convention and if we interpret it in the preparatory

 2     work for adopting it, what is added to the killing - that is to say,

 3     infliction of serious mental or physical injuries or placing it in such

 4     condition that it leads to its destruction - cannot be considered as the

 5     accomplishment of the final effect but rather that it has elements of an

 6     act that has as its aim the final and eventual destruction of a group.

 7             The position of the Defence is that the forcible relocation can

 8     be considered to be an act of genocide only if it is done in a manner

 9     that may be qualified as grievous mental harm or place in the group in

10     conditions that are conducive to its destruction such as the forcible

11     relocation to concentration camps, ghettos, or areas in which they are

12     exposed to plight, enslavement, and in which the conditions that pervade

13     are equal to degradation, denial of their human rights, and generally the

14     conditions that lead to the destruction of the group.

15             However, we understand the notion of mental harm of placing a

16     group under the conditions that lead to its destruction.  Not a single

17     act that I described committed by the Army of Republika Srpska in Zepa

18     cannot be qualified as genocide.  The majority of Trial Chamber members,

19     in paragraphs 758 of the judgement, reached the conclusions that no

20     reasonable trier of fact would have received and that is that the serious

21     mental injuries inflicted on Bosnian Muslims who were forcibly moved from

22     Zepa in the period between 25th and 27th July, 1995.

23             First of all, there is no evidence that can confirm that there

24     was a genocidal intent with regard to the Bosnian Muslims of Zepa.

25     Secondly, the act that the Trial Chamber reviewed when reaching its

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 1     conclusion cannot be classified as acts of genocide.

 2             I would like to remind you, and this is going to be the subject

 3     of discussion regarding some other questions posed by the Judges of the

 4     Appeals Chamber, is that the genocidal intention in the view of the

 5     Trial Chamber is primarily based on the operation of killing.

 6             In the course of the operation of Zepa, there was no killing of

 7     POWs of Zepa, nor was the civilian population exposed to killings.

 8             The third amended indictment does not contain any allegations

 9     about Zepa.  And speaking about the case of the killing of Palic, Hajric,

10     and Imamovic, I will deal with this later on in response to the second

11     question of the Trial Chamber.

12             Zepa fell only after three rounds of notions in which in every

13     case a population was offered a possibility to stay in Zepa.

14             As explained in appeals ground 1,5 paragraph 303 to 328 of the

15     consolidated appeal brief, I would like to remind you of some of the

16     facts which confirm the submission that an attack on Zepa and the mode of

17     conducting a military operation in Zepa was not illegal.  In an order to

18     attack Zepa, General Krstic clearly stated that the civilian and Muslim

19     population and UNPROFOR are not the target of our operation.  This is

20     P1225, page 4, and in judgement it's paragraph 1028, footnote 4061.

21             An attack on Zepa is a reaction to the attempt by the Muslims to

22     link the enclaves with a central part of the territory under the BH

23     control through military operations and by launching frequent attacks

24     from the enclaves.  The exhibits that confirm this are listed in

25     paragraph 306 of the appellate brief.  These attacks resulted in great

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 1     casualties among the Serbian army and population which was confirmed by

 2     the Trial Chamber.

 3             The absence of the genocide intent can be further corroborated by

 4     the documents of the UN.  I would particularly like to refer to P596,

 5     paragraph 9, which says, I quote:

 6             "The Serbs want to occupy the pocket of Zepa without any

 7     fighting, if possible."

 8             Describing the meeting of 13 July in which Tolimir participated,

 9     it is said that "Serbs asked the Bosnian from Zepa to lay down their arms

10     after which the civilian population can stay or go."  Paragraph 8 of the

11     document.

12             In other words --

13             JUDGE MERON: [Microphone not activated]

14             MR. GAJIC: [Interpretation] -- the very commencement of the

15     attack on Zepa.

16             JUDGE MERON:  [Microphone not activated]

17             THE INTERPRETER:  Microphone, please.

18             JUDGE MERON:  I'm terribly sorry.

19             The first issue raised in the addendum to the Scheduling Order

20     raised the question of the nexus or not nexus between the operations in

21     Zepa and those in Srebrenica.  In the -- your appeal brief at

22     paragraph 164, you argued that the Trial Chamber was required to analyse

23     separately the operations of the Bosnian Serb army in Srebrenica and in

24     Zepa.  And this relates, of course, to the operative indictment which in

25     this case defined the targeted group that is the subject of the charges

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 1     against Mr. Tolimir as, and I quote, "Muslim population of eastern

 2     Bosnia," eastern Bosnia.  According to the indictment, this constituted

 3     part of the Bosnian population as a whole.

 4             Can you explain to us why was the Trial Chamber required, as you

 5     allege, to analyse separately the operations in Srebrenica and in Zepa.

 6             MR. GAJIC: [Interpretation] First of all, the operation in Zepa

 7     was led under completely different circumstances to those of the

 8     operation in Srebrenica.  The differences are obvious, beginning with how

 9     it began, how it developed, the way the negotiations were conducted, and

10     everything else.

11             As far as the attack on Zepa is concerned, it absolutely lacks

12     the features that existed in the attack in Srebrenica, although the

13     Defence believes that both operations were completely lawful.

14             Second, the Defence asserts that the Muslim population of the

15     whole eastern Bosnia was not a target of attack, neither in Srebrenica

16     nor in Zepa.  However, two different operations can be qualified in a

17     different manner, legally.  Establishing genocidal intent, the Trial

18     Chamber stated that it encompassed the entire population of the

19     eastern Bosnia.  The Defence claims that it did not, neither in

20     Srebrenica nor in Zepa.  In order to reach such a finding, it has to be

21     established separately whether the civilian population of Srebrenica was

22     exposed to acts that constitute genocide separately from the population

23     of Zepa.  In Zepa there was no genocide.

24             JUDGE MERON:  Thank you.

25             MR. GAJIC: [Interpretation] It is the position of the Defence

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 1     that not only there is no proof that the civilian population was a target

 2     of attack but also that it was not the ambition of the VRS to remove the

 3     population from Zepa forcibly.  This is shown by the meetings of 13, 19,

 4     and 24 July, as well as the agreements that had been reached and that

 5     Bosnian Muslims did not honour.  Every time an agreement was reached,

 6     they wanted to cheat their way out of it.

 7             The Trial Chamber in its reasoning in which it found that the

 8     forcible transfer of population from Zepa constitutes an act of genocide

 9     relied on several controversial findings.  First of all, in paragraph 758

10     of the judgement it emphasised that the transport of the population from

11     Zepa unfolded in somewhat different circumstances than the transport of

12     Muslims from Srebrenica.

13             First of all, the population of Zepa was transported to the

14     territory in which an identical national, racial, religious, and ethnic

15     group resided that was under the control of the government which they

16     considered to owe loyalty to and in which they were not exposed to

17     circumstances conducive to their destruction.  The very transport was

18     executed, as found by the Trial Chamber, with the escort of UNPROFOR,

19     with the listing of the names of all those transported, which was done by

20     the local Muslims and UN representatives, and there was also an order by

21     Mladic that Muslims transported may not be maltreated and nothing may be

22     taken away from them.  That is P2427.

23             The Trial Chamber as an element in its reasoning that serious

24     mental harm was inflicted, stated that on 20th July the population was

25     invited by public announcement to return to the enclave.  Let me recall

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 1     that the Chamber established that this public announcement was ordered by

 2     Tolimir, which is indisputable and established in paragraph 61 of the

 3     judgement.  The Trial Chamber erred when relying on this fact in finding

 4     whether the population of Zepa suffered grievous bodily harm.

 5             Inviting the population on the 20th of July to return to the

 6     enclave followed after the agreement of 19 July between Mladic, a

 7     representative of the War Presidency, parliamentarians, Torlak and

 8     Kulovac, were the representatives of the War Presidency of Zepa expressed

 9     their readiness to lay down their arms, to surrender them, and agreed on

10     the evacuation of the civilian population.

11             Also the evidence shows that ten entire families wanted to stay

12     in the enclave, that's D58.

13             Inviting the population to return to Zepa after the agreements

14     were reached with parliamentarians from Zepa, although it may have been

15     unpleasant for some civilians, certainly does not have the character of

16     mental injury.

17             Also the Trial Chamber when explaining its qualification of

18     forcible transfer as serious mental harm, states that Tolimir's conduct

19     while -- is an element in this, his conduct in Zepa during the

20     evacuation.  The Trial Chamber relied on the evidence of one witness,

21     David Wood, who cannot be considered as a reliable witness as explained

22     in the consolidated appeals brief in paragraph 153 and the amended reply

23     in paragraph 53.

24             This witness said that Tolimir contributed to a threatening

25     atmosphere by going through the masses of people with his gun pointed in

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 1     the air.  Other witnesses, Edward Joseph and Zoran Carkic, testified

 2     about the way about the way in which the evacuation of the civilian

 3     population from Zepa was conducted about which Mr. Wood had no particular

 4     knowledge how it was organised and especially how Tolimir behaved during

 5     that time.

 6             Two witnesses of the Prosecution, Edward Joseph and Zoran Carkic,

 7     confirmed that Tolimir did not have any arms while in Zepa.  In fact, he

 8     was not seen carrying any weapons.  Edward Joseph does not remember

 9     Tolimir having any weapons while Carkic, in an interview with the

10     Prosecution, emphasised:

11             "He came unarmed and amongst the thousands of civilian population

12     and before I went in."

13             He testified that Tolimir insisted, "Nothing should happen to the

14     people," D217, page 13 and 14.

15             Not a single reasonable trier of fact could conclude that

16     Tolimir's behaviour in Zepa constitutes infliction of mental harm or

17     contributed to infliction of mental harm.

18             Furthermore, the Trial Chamber cites as a ground for its finding

19     that serious mental harm was inflicted certain situations during the

20     evacuation from Zepa in which Mladic gets on each of the buses and

21     addresses the population evacuated from Zepa.  They take out of context

22     several expressions such as "I give you your life as a gift," without

23     viewing them in the context of this address.  They take a few words out

24     of context which would not be done by any reasonable trier of fact.

25             In the file we have a video and the transcript of Mladic's entry

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 1     into the buses, P1740.  For example, in one of the buses Mladic said:

 2             "Our children were killed too in 1992 in the Zepa canyon.  You

 3     heard about me.  Now you are watching me.  I am General Mladic.  There

 4     are able-bodied men among you.  All of you are safe and you will be

 5     transported to Kladanj.  I wish you a safe journey and goodbye."

 6             That is P1740, 2631.

 7             He also said:

 8             "Among you there are militarily-able people who shot at me.  I

 9     forgive you all and I give you your life as a gift.  Do not come before

10     me on the front line.  Next time there will be no forgiveness.  I have

11     mercy for you as you did not have any for our children in 1992 in the

12     Zepa canyon.  Safe trip and goodbye."

13             That is again P1740, pages 2641.

14             Such statements could not be interpreted by any reasonable trier

15     of fact as elements corroborating the theory about the infliction of

16     serious mental harm.  These reasons are sufficient to point out to the

17     errors made by the Trial Chamber in finding that the transfer of

18     population from Zepa have any features of an act of genocide or that the

19     operations of the VRS in Srebrenica constitute acts of genocide or were

20     done with genocidal intent.

21             The second question from the Appeals Chamber concerns ground of

22     appeal number 2; namely, did the Trial Chamber err in finding that the

23     forces of Bosnian Serbs killed Mehmet Hajric, Amir Imamovic, and

24     Avdo Palic with a particular intent to destroy part of the Bosnian Muslim

25     population as such.

Page 45

 1             I would like to recall, first of all, that in the judgement of

 2     the Trial Chamber in the Krstic case, it is clearly emphasised that

 3     intent has to be indisputably unambiguously established from factual

 4     circumstances of the criminal act charged in the indictment as well as

 5     that the conditions of the existence of evidence of particular intent and

 6     indications that the whole group or a considerable part of the group was

 7     designated for destruction.

 8             These standards prevent an easy conviction for genocide.  The

 9     criminal act of genocide by its very nature requires intent to destroy at

10     least a considerable, that is significant, part of a group.  The killing

11     of three Muslims from Zepa, regardless of their position they had as

12     members of the War Presidency in Zepa, does not meet this standard.

13     Genocide is not an act, is not a crime against an individual or several

14     individuals but against a national, ethnic, racial, or religious group.

15             As stated in paragraph 9 of the appeals judgement in Krstic,

16     Ralph Lemkin stressed that when partial destruction is concerned in order

17     for the standard of genocide to be met, it has to be a significant part

18     of the group; that is to say, a large number of individuals belonging to

19     that group such that it affects the whole of the group.

20             The Trial Chamber was guided by one criterion alone invoked by

21     the Trial Chamber in the case of Jelisic, citing the report of the

22     commission of experts stating that in a situation in which essentially

23     the target is the entire leadership of the group, including political and

24     administrative leaders, religious leaders, academicians, and

25     intellectuals, prominent business and other people, this can also

Page 46

 1     constitute genocide and that totality in itself can be a strong

 2     indication of genocide regardless of the number of those killed.

 3             The Appeals Chamber in the Krstic case criticised the findings

 4     from Jelisic and Sikirica taking the position that if a certain part of

 5     the group in one or another way constitutes a whole group or if it is of

 6     key importance to its survivor, it can support the argument that this

 7     part is qualified as significant for the purposes of Article 4 of the

 8     Statute.

 9             However, this factor does not stand alone.  It is just one of the

10     indications of whether the standard of significance is met.

11             In the Krstic case the Appeals Chamber did not deal in greater

12     deal with this criterion.  However, we believe that this criterion can be

13     an indicator of genocide only if it is part of a policy that is

14     systematically pursued as one of the stages in pursuing the genocidal

15     plan.

16             In the appeals brief in paragraph 183, we cited the opinion of

17     Professor Kreca, that is a judge of the International Court of Justice

18     who in his separate opinion in the case Bosnia-Herzegovina versus

19     Yugoslavia, indicated that the concept of "leader" is not sufficiently

20     clear and that it leads through the backdoor a consideration of leaders

21     as a separate protected object of the convention on genocide of which

22     there is no trace neither in the preparatory work nor in the draft of the

23     convention.

24             It also states that the concept of leader in modern society for

25     human freedoms and rights has an accronis [phoen] and discriminatory

Page 47

 1     connotation which runs counter to the ideas that constitute a foundation

 2     for human rights of individuals and groups.

 3             For establishing genocidal intent, one of the factors that is

 4     important is also the moment in time when they were killed.  In the case

 5     of Palic, that was 4 or 5 September.  While it is quite certain that

 6     Imamovic and Hajric were alive in August 1995 and in the period when they

 7     were probably killed and the circumstances of their killing have not been

 8     established.

 9             The Trial Chamber considered the fact that the alleged forcible

10     transfer of the population of Zepa happened before their killing.  It

11     qualifies it as a factor corroborating the finding of genocidal intent,

12     paragraph 781.  This is a finding that would not be made by any

13     reasonable Trial Chamber; namely, the fact that they were killed as

14     confirmed by forensic reports after the population left Zepa shows that

15     their importance to that community was not the same anymore even if they

16     had been of key importance to the survival of one small community.

17     However, neither that community in 1995 was very small anymore nor can

18     anything suggest the conclusion of the majority of the Trial Chamber that

19     it constituted several thousand people.  Before the war it was less than

20     3.000 and during the war the Trial Chamber established the number to be

21     between 6.500 and 10.000.

22             The ABiH in Zepa was defeated.  There was no need anymore to

23     organise civilian protection.  There was no need for the work of the

24     War Presidency in Zepa.  In any case, they were not of key importance to

25     the survival of Muslims from Zepa.  At the time of their killing, the

Page 48

 1     Muslim population of Zepa was already on the territory of BH or in

 2     Serbia.

 3             Furthermore, there is reference to the killing of three persons

 4     who were taken as prisoners of war in a lawful manner after the fall of

 5     Zepa and who, considering that they were captured, could not have any

 6     role in the enclave.  Therefore, their murder does not fit the standard

 7     formulated by the Trial Chamber as "intentional destruction of a limited

 8     number of persons selected for their influence."

 9             JUDGE MERON:  Excuse me, Counsel.  What did you mean by saying

10     that they were killed in a lawful manner?

11             MR. GAJIC: [Interpretation] I apologise.  I never said that they

12     were killed in a lawful manner.

13             JUDGE MERON:  It's maybe a problem with the translation.

14             MR. GAJIC: [Interpretation] They were taken prisoner in a lawful

15     manner.  And since they were taken prisoner, they could not have any

16     influence on the enclave and life in it.  That's why their killing does

17     not meet the standard that was formulated by the Trial Chamber as the

18     intentional destruction of a limited number of persons selected because

19     of the influence that they have and that they could have on the survival

20     of a group as such.  Their killing did not have any influence on the

21     survival of the group nor could a reasonable trier of fact could conclude

22     that it had.

23             JUDGE MERON:  Thank you for this clarification.

24             MR. GAJIC: [Interpretation] Mr. President, I can see that the

25     interpretation is very slow and I'm reading very fast in the Serbian

Page 49

 1     language.  That's why I'm going to slow down and I am going to skip a few

 2     of the arguments, but I would like to remind everybody that in our appeal

 3     brief we pointed to the fact that based on the agreement on the

 4     militarisation, Avdo Palic as the commander of the Zepa Brigade should

 5     not have been in the enclave in the first place and that Imamovic and

 6     Hajric participated in combat and that combat was launched from the

 7     enclave which was explained in paragraphs 179 through 910 in the appeals

 8     hearing.

 9             But I would also like to point to the fact that the report of

10     Viktor Bezruchenko, which is D21, paragraph 12, who was an investigator

11     of the Office of the Prosecutor, points to the fact that they were not

12     very crucial for the survival of a small community.  He points to the

13     fact that those people who were in Zepa who were intellectuals and who

14     could have organised life in Zepa tried to leave Zepa instead.

15             Delic wrote an appeal, according to Bezruchenko, and said that

16     one of the causes of the departure of the population was mistrust in the

17     leadership structures which were at odds.  And now we come to another

18     thing in the reasoning of the Trial Chamber which tries to say that, as

19     corroboration to the genocidal intention, was that Hajric and Imamovic

20     were separated from the other prisoners of war.

21             However in different place in the judgement, we see Tolimir's

22     instruction on the way how prisoners of war should be classified, and he

23     quotes that as an example of the fact that Tolimir was aware of the

24     international law relative to treating prisoners of war.  We'll find that

25     in paragraph 1122 of the judgement.

Page 50

 1             Document P134, which is a Prosecutor's exhibit, testifies to

 2     Tolimir's instructions on treating prisoners of war in Rasadnik.  On

 3     page 5 of this document, its author, Carkic, reports:

 4             "In keeping with the order issued by General Tolimir and his

 5     instructions, all the necessary measures were taken in accordance with

 6     possibilities."

 7             Inter alia, he also points to the fact that prisoners of war were

 8     classified and that healthy prisoners were accommodated in one room, the

 9     wounded and sick in another room, and in the third room they put members

10     of the former leadership.  It says "Atlantida," and that's a reference to

11     Avdo Palic is in a different location and his accommodations is better.

12     And now "efendija," meaning Hajric, is approved to pray in his room five

13     times a day.  And there is a reference to the food, medical treatment,

14     and particularly important is the fact that Tolimir instructed that they

15     should be registered with the International Committee of the Red Cross.

16             The fact that they were kept in a separate room cannot be taken

17     as corroboration for the argument that they were killed with a genocidal

18     intention.

19             And finally when it comes to the reason, motives, and intentions

20     behind the killings of Palic, Hajric, and Imamovic, very little is known

21     about all that.  There is not enough proof.  However, what was said by a

22     member of the VRS, Zoran Carkic, who was an officer of the

23     Rogatica Brigade at the time, is that Palic, Hajric, and Imamovic

24     participated in the armed combat in Zepa including the participation in

25     the massacre of imprisoned soldiers, Serbs, in 1992.

Page 51

 1             I would like to refer you to T 12787 page in the transcript.  In

 2     the absence of any proof of the circumstances of their death, who, when,

 3     and why they killed them, one cannot arrive at a reliable conclusion that

 4     they were killed with a genocidal intention.  And the thesis that they

 5     may have been killed because they had participated in combat operations,

 6     for example, in the killing of those who were injured and sick in 1992 in

 7     the Zepa canyon may be considered a reliable and well grounded thesis.

 8     However, it is a more reasonable conclusion than the conclusion of the

 9     Trial Chamber, that they were killed because of their leadership position

10     and because of the influence that they had on the entire group of

11     Bosnian Muslims in Zepa.

12             I would like to move on to question number 3 posed by the

13     Appeals Chamber, and it reads:

14             "In connection with the appeals grounds 14 and 16, did the

15     Trial Chamber err where it relied on, inter alia, Tolimir's position of

16     the chief of the sector for intelligence and security affairs and in his

17     professional control over subordinate intelligence and security organs

18     when they concluded that under 1, Tolimir knew that his subordinates

19     participated in the joint criminal enterprise to kill people, and under

20     2, that he intended himself to participate in the joint criminal

21     enterprise to kill people?"

22             Could I please be informed as to how long do I have before our

23     first break?  I would like to adjust my presentation accordingly.

24             JUDGE MERON:  Of course all of this is stated in the

25     Scheduling Order and the present stage of your presentation should end at

Page 52

 1     11.15 and then we will have a pause of 20 minutes and then we will -- you

 2     will have from 11.35 until 12.20.  And so please try to schedule your

 3     presentation in such a way as to have time to cover all the principal

 4     points and take into account that my colleagues may want to ask for some

 5     questions.

 6             Thank you.

 7             MR. GAJIC: [Interpretation] Of course, Mr. President.  I just

 8     needed to know whether there would be any delays due to the delay at the

 9     start.

10             The Trial Chamber did not err when it said that Tolimir knew that

11     certain persons participated in the JCE and with respect to the fact that

12     he intended to participate in the JCE.  An important determinant of all

13     these findings was the -- Tolimir's position in the VRS including his

14     relationship with General Mladic who was the commander of the Main Staff

15     of the VRS.

16             To what extent did these findings influence the conclusions of

17     the Trial Chamber is seen from the dissenting opinion of Judge Nyambe in

18     paragraph 4.  I'm not going to quote all of it, but the Trial Chamber

19     also says that in a number of paragraphs at the beginning of the

20     judgement, for example, in paragraph 115 of the judgement, a majority of

21     the members of the Trial Chamber points to the fact that when arriving at

22     the conclusion that the accused was a participant in both JCEs, a

23     majority of the Trial Chamber members took into account the functions and

24     the authorities of the accused and erred when it concluded that the

25     accused had reliable communication channels via his subordinates and that

Page 53

 1     he was regularly informed on what was going on in the enclaves of

 2     Srebrenica and Zepa, that he was one of Mladic's associates that Mladic

 3     relied on and trusted, that he was his second in command and his right

 4     hand, based on the description provided by General Smith and his

 5     conclusion that they were almost equal, and it was often mentioned that

 6     Tolimir was Mladic's eyes and ears as it were.

 7             The first thing that I would like to draw your attention to in my

 8     presentation is the fact that the Trial Chamber fully confused several

 9     categories that concerned the control and command of the army.  As was

10     explained in the appeals brief, and I'm not going to repeat that portion,

11     when it comes to leadership or rather the direction and command of

12     certain organs, sometimes implying the full control of their work

13     including issuing certain orders as to what needed to be done.  Popovic,

14     Momir Nikolic, and other members of the intelligence sector are

15     erroneously mentioned in the judgement as those who were subordinated to

16     Tolimir.

17             However, such a situation is not sustainable and is not in

18     accordance with the evidence adduced.  What I would like to mention at

19     this moment is the fact that there is no proof that Tolimir in the

20     relevant period of time, while all those killings were taking place in

21     the area of responsibility of the Bratunac Brigade and the

22     Zvornik Brigade, received any reports on any killings on any criminal

23     intent or plan.

24             In practical terms, the conclusions of the Trial Chamber boiled

25     down to the following:  If somebody of those whom we consider to have

Page 54

 1     been subordinated to Tolimir participated in the killings, Tolimir should

 2     have known about that.  If he spoke to somebody, we are certain that such

 3     a message was conveyed to him.  However, this way of evaluating evidence,

 4     and I've simplified things very much because of the constraints of time,

 5     is contrary to what should be done in evaluating judgements as

 6     demonstrated by the Trial Chamber in paragraph 98 of the Krstic

 7     judgement.  It says:

 8             "Despite the claim of the Trial Chamber that if General Mladic

 9     knew of the killing, Krstic should have known about them as well."

10             The Trial Chamber did not establish based to Krstic's contacts

11     with General Mladic during that period of time that Radislav Krstic

12     really learned in those context about the intention to have

13     Bosnian Muslims killed.  The claim by the Trial Chamber did not have

14     valid probative grounds.  No reasonable trier of fact if they did not

15     really establish that Krstic was aware of General Mladic's intention

16     would draw an inference that Krstic shared that intention and that

17     knowledge.

18             Unlike the Krstic case, as I'm going to explain in some more

19     detail later on, a majority of the members of the Trial Chamber placed

20     most of the weight to the fact that the relationship between Tolimir and

21     Mladic was good, that Mladic trusted Tolimir, that in the absence of any

22     proof on the communication between Tolimir and members of the

23     intelligence and security organs during the relevant period, that it

24     would be inconceivable if Tolimir had not been aware of the operation to

25     kill people.

Page 55

 1             Now what did the Trial Chamber particularly rely on while

 2     reviewing this finding concerning the knowledge on Tolimir's part about

 3     the operation of killings as well as Tolimir had intended to take part in

 4     it and that he had contributed to it.  First of all, in paragraph 1096,

 5     on the 13th of July Tolimir was in the area of Zepa and in the following

 6     days he was intensively engaged in the area by participating in the

 7     negotiations about the evacuation of the Bosnian Muslims.

 8             The alleged operation of killings is relating to the period from

 9     12 or 13 July until 19th of July.  We believe that to be a relevant

10     period in which it has to be established that Tolimir was aware of the

11     operation of the killings.

12             The Trial Chamber by invoking document D64, sent by Tolimir after

13     2200 hours on the 12th of July, concluded that at the time when it was

14     issued he had not known anything about the plan to kill the Muslims of

15     Srebrenica.  However, the Chamber relying on Tolimir's relationship with

16     Mladic - and there is no evidence that Tolimir was in Fontana Hotel

17     during the negotiations or that he was in Srebrenica ever, for that

18     matter - when Tolimir said that all able-bodied men who are evacuated

19     from Potocari should be recorded and listed, the Trial Chamber says that

20     this coincides with what Mladic had said about searching, or rather,

21     screening whether among the POWs there were those who committed certain

22     crimes.

23             This document, this D64, reads in its relevant part:

24             "Bearing in mind that it is very important to arrest as many

25     members of Muslim formations as possible, or to execute them if they

Page 56

 1     offer resistance, it is also necessary to record all able-bodied men who

 2     are evacuated from the base in Potocari," which means to make a list of

 3     all of them.

 4             There is no search for prisoners of war.

 5             Tolimir believes and he thinks that they shouldn't be separated

 6     at all.  However, in order to understand this proposal and this

 7     proposition, it is necessary to look at the whole of this document.

 8     Tolimir says that the Muslims want to portray Srebrenica as being

 9     demilitarised and that only civilians were there.  For that reason, it

10     was ordered that all armed able-bodied men to illegally pull out of the

11     territory of Republika Srpska to the territory under the Muslim control

12     in order to accuse the VRS that it had attacked the civilian population

13     in a safe zone without any cause whatsoever.

14             The only reasonable conclusion that can be derived from this

15     document is that Tolimir wanted to provide evidence that there were

16     military forces stationed in Srebrenica and to deny all the accusations

17     that the attack on the zone was launched while it was populated only by

18     the civilians.

19             However, based on this document, D64, the Chamber concluded that

20     even though Tolimir -- or rather, the Chamber concluded that Tolimir did

21     not know about the operational killing but that he was in contact with

22     all the relevant personnel and organs and that he was kept abreast about

23     the developments in Srebrenica.  However, there is no evidence that

24     Tolimir from the evening of 12th July onwards was informed about the

25     developments in Srebrenica.  Based on Mladic's order, Tolimir was in Zepa

Page 57

 1     at the time.

 2             On the 13th of July, a document was produced which we find to be

 3     extremely disputable.  It's P125.  And it is allegedly authored by

 4     General Savcic who also was in Zepa on the 13th of July.  The Defence

 5     believes that this document is not authentic and we provided reasons for

 6     that in our appeals brief.  However, what is in dispute in weighing the

 7     evidence and when establishing the authenticity is the fact that the

 8     Trial Chamber did not rely on the testimony of General Savcic who was in

 9     Zepa at the time with quite a small number of soldiers but rather on the

10     testimony of Mr. Blaszczyk who was the Prosecutor's investigator.

11             Among other things, the testimony of the Prosecutor's

12     investigator provides denial on the existence of the forward command post

13     of the 65th Protection Regiment.  However, Mr. Blaszczyk has no military

14     expertise and he has no knowledge on these matters.  When analysing this

15     document, the Trial Chamber also omitted to note certain things, which is

16     that this document does not contain anything that might point to

17     something dubitable or something that no other army in the world would

18     have done.

19             JUDGE MERON:  You have argued, Counsel, that Mr. Tolimir was not

20     aware of the plan to kill the males, Bosnian males, Bosniak males.  Could

21     you explain, then, why did he propose that those persons, the males, be

22     put in a closed hangar to avoid detection?  This, of course, appears from

23     Defence Exhibit 49.  Was this an order to hide, to cover up for the

24     killings?

25             MR. GAJIC: [Interpretation] Mr. President, in this period between

Page 58

 1     the 12th July and onwards, we are talking about something that everybody

 2     saw, UNPROFOR, there was testimony that TV crews were there who filmed

 3     them.  Nobody was trying to conceal the existence of POWs.  I believe

 4     that what this is about is usual practice, to put the prisoners inside

 5     certain facilities in order to guard them better and also to prevent

 6     others from seeing these prisoners of war.

 7             However, there is one more thing.  In that period, the VRS was

 8     under the threat of NATO bombing.  I believe that this is not the case of

 9     hiding POWs but rather of undertaking usual measures of caution.  Not to

10     kill them.  There were other officers, like Tolimir, who testified here.

11     Tolimir was a smart and competent officer.  Can we then assume if such an

12     officer, knowing that UNPROFOR was passing by and if everybody was aware

13     of the existence of POWs would order for these prisoners to be hidden

14     away in order to kill them later on?  There is no evidence whatsoever

15     proving that Tolimir knew at all about any plans about the murder from

16     other generals.  Nobody can say that this document represents something

17     that is unlawful.

18             I'm sorry.  I just looked in the transcript.  Maybe I didn't

19     hear.  You asked me about document D49, which is a document in which

20     Tolimir informs about the existence of accommodation facility for 800

21     prisoners of war in the area of the Rogatica Brigade.  In our opinion,

22     this document shows that Tolimir had no knowledge about the murders

23     operation or about the intention to kill them.  In this document, D49,

24     Tolimir says, "If you're not able to provide proper accommodation for all

25     POWs...," and this specific expression reveals that Tolimir was not in

Page 59

 1     charge of providing accommodation.  He's just speaking about

 2     accommodation.  And then he says "proper accommodation," and we

 3     understand this to be only such accommodation that satisfied all the

 4     requirements stated in Geneva Conventions, particularly the third one.

 5             This document especially negates that Tolimir was aware of the

 6     murder operation at the time and that he intended to contribute to it,

 7     and especially it is impossible to interpret this document as something

 8     that represents something that is contributing to the JCE of the murder

 9     of Bosnian Muslims.

10             Tolimir was in Zepa at the time.  We have evidence given by

11     Zoran Carkic who described how this document was drafted and when it was

12     sent.  However, we have no evidence as to what was subsequently done

13     about it.  Probably nothing.  There were no preparations because

14     obviously his information about the existence of this accommodation

15     facility was just noted but it was not taken into consideration.

16             Another element that I would like to underlie here in the

17     Trial Chamber's reasoning relates to a document that Tolimir sent -- or

18     rather, received from the Main Staff and he forwarded it to the

19     Drina Corps.  In this document, it is stated that there is a drone in the

20     air and that certain measures need to be taken.  The Trial Chamber

21     concluded that because of his function, which means to prevent the

22     leakage of intelligence, did this in order to conceal the killings that

23     were already taking place in the area of Zvornik.  We consider this kind

24     of reasoning to be totally erroneous.  There is no indication whatsoever

25     that this was done in order to hide the killings, whereas at the time

Page 60

 1     preparations for an attack on Zepa were being made and the

 2     Zvornik Brigade was still engaged in military operations.

 3             Not a single reasonable trier of fact could conclude that this

 4     was issued in order to contribute to the JCE of murders.

 5             JUDGE MERON:  Thank you.  I think that this may be a good time

 6     for us to have a pause of 20 minutes.

 7                           --- Recess taken at 11.16 a.m.

 8                           --- On resuming at 11.37 a.m.

 9             JUDGE MERON:  Please be seated.

10             Before starting, I would like to congratulate the interpreters

11     for a heroic performance and you will have not to go too fast and yet you

12     know we operate under strict time limits.

13             So it is your turn again, continued submission by Tolimir,

14     45 minutes.  You know that usually the shorter the presentation the more

15     effective it is.

16             MR. GAJIC: [Interpretation] I absolutely agree with you,

17     Mr. President.

18             Regarding the issues we are dealing with now, I wish to point out

19     certain errors of the Trial Chamber concerning the way it evaluated the

20     evidence.  Let us take the example of a communication that Tolimir had

21     with Popovic on the 22nd of July, 1995.

22             If I'm not mistaken it's the only communication that Tolimir had

23     at the time with Popovic.  Popovic is making inquiries about a relative

24     of his, Tolimir says he cannot do anything, he asks what's going on, what

25     he's doing, and Tolimir says, "Do your job."  These words, "do your job,"

Page 61

 1     are cited by both the OTP and the Trial Chamber to conclude that it has

 2     something to do with the killings in Bisina.

 3             These killings in Bisina, as well as those on the 16th of July in

 4     Branjevo, according to the findings of the Trial Chamber, were carried

 5     out by the 10th Sabotage Detachment.  However, this

 6     10th Sabotage Detachment was not commanded by Tolimir.  It was not even

 7     commanded by Salapura.  It was directly subordinated to the commander of

 8     the Main Staff.  And in the evidence of Salapura, this detachment could

 9     have been used without Tolimir or Salapura knowing anything about it.  It

10     was an independent unit of the VRS.

11             Tolimir and Salapura had certain competences only with regard to

12     the training of that detachment and could propose appointments to it, and

13     the very fact that Tolimir talked to Popovic on the 22nd and the

14     supposition that he talked to Salapura on the 16th or communicated by

15     telegram or in some other way is insufficient to conclude that Tolimir

16     was informed of the murder operation.

17             That is simply going one step too far and indicates what I

18     pointed out earlier regarding the way evidence was evaluated as the

19     Appeals Chamber also emphasised in the Krstic case.

20             Regarding the issue of whether Tolimir was aware of the murder

21     operation and whether he intended to participate it in and whether he

22     contributed to it, the Trial Chamber found that Tolimir allegedly failed

23     in his duty to protect the prisoners of war from Srebrenica.

24             What does the Trial Chamber proceed from?  They proceed from the

25     supposition that Tolimir played a role in the exchange of POWs.  That's

Page 62

 1     paragraph 1122 of the judgement.  And from that, they draw the conclusion

 2     of his duty to protect POWs.  Exchange is basically paperwork.  It does

 3     not imply "care about the treatment of POWs."  POWs have to be treated by

 4     everyone in a lawful way, that obligation is indisputable.  But the

 5     powers and the duty to treat POWs properly lie with the units that

 6     captured them and held them.

 7             Tolimir is at that time in Zepa and he received no authorisation

 8     or no instruction or obligation to take care of the prisoners from

 9     Srebrenica from Mladic or from anyone else.  If we evaluate this evidence

10     according to the standard of reasonable doubt, we can be absolutely sure

11     that Tolimir at that time knew absolutely nothing about the prisoners of

12     war.

13             The Trial Chamber concludes that Tolimir, when he found out, and

14     we believe that Tolimir knew absolutely nothing at the time about POWs,

15     was able to take adequate measures, that he was able to issue, for

16     instance, appropriate instructions to his subordinate units.  Well, one

17     instruction was issued, it's D49, whereby Tolimir conveys an order from

18     Karadzic regarding the attack on Srebrenica and which states:

19             "Treat the civilian population and POWs in accordance with the

20     Geneva Conventions of 12 July, 1949."

21             Could Tolimir be satisfied that military officers would comply

22     with an order from the Supreme Commander and their military duties?  We

23     believe so.  Is this an instruction issued to someone who was known for

24     respect for the duty to protect POWs for specific laws and regulations

25     dealing with POWs, Exhibit D49, who on 12 July says that all the

Page 63

 1     able-bodied military-aged men in Potocari need to be listed and

 2     registered?  Was such a person informed that crimes were being committed?

 3             The Trial Chamber seems to have proceeded from the supposition

 4     that when somebody in the army issued an unlawful order, it is executed

 5     in a military way according to the normal hierarchy and the standard

 6     procedures in the army.  The Army of Republika Srpska was not an army

 7     that was based on obedience but on duty, and the duty of the officers was

 8     to refuse an unlawful order.

 9             Considering that a criminal act was being committed, would

10     somebody who was known to wish to protect POWs be informed that harm was

11     going to be done to these prisoners?

12             Of course we stand by all the legal grounds of appeal that we

13     cited.  I believe that I have already answered the question number 4 of

14     the Appeals Chamber, whether the only reasonable conclusion for the

15     Trial Chamber was that Tolimir intended to participate and significantly

16     contributed to the JCE of killings.  We believe that he did not

17     participate, and since he did not participate he did not intend it, nor

18     was he able to significantly contribute to the killing of prisoners from

19     Srebrenica and he knew nothing about it.

20             As for question number 5 of the Appeals Chamber, concerning

21     ground of appeal 16 - that is to say, can Tolimir be considered

22     responsible for his role in the killings in Srebrenica based on some

23     other mode of liability apart from participation in the JCE?

24             It is true that the indictment charges Tolimir according to

25     Article 7(1) of the Statute.  We believe that the Appeals Chamber should

Page 64

 1     and has the right to consider whether the accused is culpable under some

 2     other mode of liability, but I wish to emphasise that the indictment was

 3     conceived under a mode of liability based on joint criminal enterprise

 4     and it is difficult to reconsider it now.  Since the Defence asserts that

 5     in the relevant period Tolimir did not know about the murder operation

 6     and he did not contribute to it and did not participate in it nor did he

 7     intend to participate, therefore we believe that there is no reason

 8     whatsoever to charge Tolimir under any other mode of liability.

 9             Of course in any case the Appeals Chamber is at liberty, if they

10     deem necessary, to instruct the parties to make their written submissions

11     concerning alternative modes of liability within any time-limit they

12     determine, and perhaps the appropriate time for that is only at the end

13     of these appeals proceedings.

14             JUDGE MERON:  Mr. Gajic, this may be a question of

15     interpretation, but I would want this to be quite precise.  I read from

16     the transcript:

17             "I wish to emphasise that the indictment was conceived under a

18     mode of liability based on joint criminal enterprise and it is difficult

19     to reconsider it now."

20             Now the indictment, as you point out, charge all modes of

21     liability under 7(1) of the Statute including aiding and abetting under

22     it, so it did not just charge one thing.  Not just joint criminal

23     responsibility.

24             MR. GAJIC: [Interpretation] Mr. President, I did not manage to

25     read the whole transcript, but I did emphasise all that.  I said that

Page 65

 1     Tolimir was charged with all modes of liability envisaged under 7(1) of

 2     the Statute, but the indictment itself was modelled and written in such a

 3     way that it deals exclusively with this issue.

 4             JUDGE MERON:  Thank you, Mr. Gajic.

 5             MR. GAJIC: [Interpretation] And of course it would be perhaps

 6     more appropriate for the Defence to respond in its reply if the

 7     Prosecution makes any submissions about alternative modes of liability

 8     such as aiding and abetting or something else.

 9             The next question, question number 6 of the Appeals Chamber,

10     regards appeal ground number 21:  Can Tolimir be convicted of genocide

11     for participation in JCE of forcible removal if the Appeals Chamber

12     should accept appeal ground 16?

13             If the Appeals Chamber accepts the ground of appeal number 16 -

14     that is, if it finds that the majority of the Trial Chamber erred in

15     finding that the Tolimir was a participant in JCE of killings and that he

16     significantly contributed to this JCE - then the conviction for genocide

17     also falls away.  In its ground of appeal 15, the Defence presented

18     arguments to corroborate its assertion that Tolimir was not a participant

19     of the JCE of forcible removal and that he did not contribute to the JCE

20     of forcible removal of Srebrenica and Zepa populations.

21             However if the Appeals Chamber decides differently, the

22     participation in the JCE of forcible removal cannot be a sufficient

23     foundation for conviction for genocide considering that the killings of

24     Bosnian Muslims from Srebrenica were the predominant factor in

25     establishing both the genocidal intent and the qualification of forcible

Page 66

 1     removal as an act of genocide.  I will recall here the conclusions and

 2     the findings of the Appeals Chamber in Prosecutor versus Blagojevic and

 3     Jokic and Prosecutor versus Krstic in which the Trial Chamber has

 4     provided almost identical reasoning as the majority of the Trial Chamber

 5     in Tolimir.

 6             As the Appeals Chamber emphasised in Blagojevic and Jokic,

 7     paragraph 123, the reasoning of the Trial Chamber did not convince the

 8     Appeals Chamber that the operation of forcible removal in and of itself

 9     or together with killings and mistreatment in Bratunac is sufficient to

10     demonstrate the intent of the principal participants, principal

11     perpetrators, to destroy the protected group.

12             In the appeals judgement in Krstic, in paragraph 35, it is

13     clearly noted that forcible removal in and of itself does not constitute

14     genocide.

15             As a relevant fact, it is only a part of the entire factual

16     evaluation.  The conclusions of the Trial Chamber on the genocidal intent

17     and the acts of genocide are founded primarily and almost exclusively on

18     the consequences of the murder operation of Bosnian Muslims who were

19     separated at Potocari or captured from the column that was breaking

20     through towards Tuzla, which is clearly seen from paragraph 753 to 757 of

21     the judgement.

22             Therefore, should the Appeals Chamber accept the ground for

23     appeal number 16, that there is no intent for genocide or JCE for

24     genocide, Tolimir should be acquitted on Counts 1 and 2 of the

25     indictment.

Page 67

 1             And finally we come to a very problematic document.  We are

 2     talking about Exhibit P488.  The Defence has identified a lot of mistakes

 3     with regard to this document.  There are a lot of translation mistakes

 4     because it contains certain things that are not seen in the original.

 5             Could you please bear with me for a moment.

 6             First of all, the majority of the Trial Chamber members have

 7     established that the document 488 is relevant to show the accused's

 8     mens rea during the operation in Zepa and that he was completely aware of

 9     the dire straits faced by the vulnerable population there.  We are

10     talking about paragraph 171 and that it shows intention to remove the

11     population from Zepa as a contribution to the JCE of forcible transfer.

12             Bearing in mind that context within which the report was sent by

13     the accused as well as his -- its wrong meaning in paragraph 1091, and it

14     shows the determination on behalf of Tolimir to destroy the population of

15     Zepa.  We believe that this conclusion on the part of the Trial Chamber

16     is absolutely out of order.

17             First of all, I have to provide an alternative argument.  If this

18     document is properly understood there is one explanation, and second

19     argument would be provided if the Appeals Chamber does not accept the

20     true contents of the document.

21             I'll start with last things first.  If the Appeals Chamber does

22     not take into account what has been said about the document in the

23     appeals proceedings, the unique position, the jurisprudence of the

24     Tribunal is that when the Prosecution tries to prove the mens rea of the

25     accused through inference, this should be done only on all the adduced

Page 68

 1     evidence.

 2             When it comes to P488, the Trial Chamber erred in many respects

 3     which are pointed out in the grounds for appeal number 15.  However, if

 4     we are looking at this document only to answer the question whether there

 5     was a genocidal intention, the document and the relevant context show

 6     that it was done only to achieve a certain military goal and nothing

 7     else, and that was to speed up the surrender of the Zepa Brigade.  It was

 8     not an objective to destroy the Bosnian Muslim population in Zepa or part

 9     thereof as such.

10             A majority of the Trial Chamber members arrived at the conclusion

11     that this proposal was the ultimate measure, as a matter of fact, and

12     that it had to be regard within the context of the goal which was the

13     surrender of Muslims.  This document, if it is understood in the way it

14     was interpreted by the Trial Chamber, stands below the threshold of the

15     genocidal intent because a genocidal intent implies a destruction of a

16     certain group as a separate entity.

17             This document does not show that the opinion was provided because

18     of the destruction of the population, nor that the population was the

19     primary target of all the activities.  It doesn't demonstrate, contrary

20     to what was concluded by the Trial Chamber, Tolimir's decisiveness and

21     determination to destroy the population of Zepa as such.

22             The Trial Chamber relied on the translation of this document.  In

23     this document, the most disputable word is probably the word "zbeg."  The

24     Trial Chamber considered the arguments provided by the accused during

25     trial and in his closing argument, but it did not give up on the official

Page 69

 1     translation.  The word "zbeg" does not mean "refugees" or "displaced

 2     persons."

 3             The word "fleeing" cannot be found in the original.  Tolimir did

 4     not suggest that refugees fleeing from something should be destroyed.

 5     His proposal was to destroy empty locations for which it had been

 6     established that potentially they represented places where Muslim

 7     populations could arrive at.  I am referring to paragraph 79 of

 8     Judge Nyambe's dissenting opinion.

 9             Looking at the totality of events in Zepa, there is a conspicuous

10     absence on any focus on any destruction of the civilian population.  In

11     addition to that, the Trial Chamber did not take into consideration the

12     circumstances that the proposal, even if it had been tabled, could not

13     have been implemented.  Savcic, who during the relevant period of time

14     was in Zepa, showed that locations that are mentioned in the documents

15     were absolutely beyond the target of the Army of Republika Srpska.  He

16     described in very much detail the area, the terrain, and the

17     circumstances that prevailed there.  I would like to refer to Savcic's

18     testimony recorded on transcript pages 15196 through 15197.

19             This interpretation on the part of the Trial Chamber and that I

20     have just quoted, that Tolimir did not suggest the destruction of the

21     Muslim population, can be seen from the context itself.  It says in this

22     document that the Muslims were targeting and shooting at the UNPROFOR

23     base in order to provoke a NATO reaction.  They were in the process of

24     transferring the population.  And the document also says that the

25     contactual group was expected to meet on the 25th of July, 1995.

Page 70

 1             In such a situation, it would have been beyond any reason to

 2     propose destruction of the civilian population.  However, a reasonable

 3     military measure in such a case was and would have been to destroy

 4     certain natural locations, not to destroy them as a matter of fact but to

 5     disable them in order to prevent the civilian population of going there

 6     so that the BiH Army would be forced to surrender as quickly as possible.

 7             According to the position of the Defence --

 8             JUDGE MERON:  Judge Antonetti has a question, so let me interrupt

 9     you.

10             JUDGE ANTONETTI: [Interpretation] Yes, Mr. Gajic.  About this

11     translation issue.  I worked yesterday on Exhibit P488, and this is not

12     the only document where there were translation issues that could lead to

13     different interpretations.  Exhibit P488 is made up of four paragraphs,

14     and in the first paragraph it is said that it would be better to directly

15     negotiate after having caused human losses to the enemy forces.  So this

16     document refers to enemy forces, and you were right when you raised the

17     translation issue for the word "zbegovi," where in Exhibit P488 in the

18     English version it says "refugees," whereas in the French translation,

19     because I requested the French translation for the B/C/S original

20     document, it talks about a group of Muslim inhabitants fleeing.  And if

21     you want to interpret inhabitants, you can think about civilians.  But I

22     see no reference to the Muslim inhabitants.

23             So I'm wondering whether the reason for that is that those

24     Muslims came from three municipalities:  Stublici, Radava, and

25     Brloska Planina.  Given your knowledge of the case, these people fleeing,

Page 71

 1     were they civilians or military forces?

 2             MR. GAJIC: [Interpretation] In this case, we are talking about

 3     certain additions and mistakes in translations.  And this is obvious.

 4     Translations cannot be uniform.  I'll try to paraphrase this document.

 5     This is not about those who were fleeing from Stublici, Radava, and

 6     Brloska Planina.  This is about destruction of "zbegovi" from those

 7     directions.  This is about destruction of "zbegovi" from those

 8     directions.  If in the Serbian version for a moment we ignore the words

 9     "'zbegovi' of the Muslim population," this is what I am reading:

10             "We are of the opinion that destruction from the directions of

11     Stublici...," and so on and so forth, "... Muslims would be forced to

12     surrender more quickly."

13             The word "fleeing" is not mentioned in the original document at

14     all.  It is simply an addition, a mere surplus in the English

15     translation.

16             JUDGE ANTONETTI: [Interpretation] Thank you very much.

17             MR. GAJIC: [Interpretation] Mr. President, the Defence is open to

18     any questions from the Judges of the Appeals Chamber in view of the fact

19     that we have only a few minutes left.  This is to say that I don't want

20     to raise any other issues at this moment.

21             JUDGE MERON:  Thank you.  I will ask my distinguished colleagues

22     whether they have any questions.  I see none.  We still have about ten

23     minutes.

24             Mr. Kremer, to make your lunch time a bit more interesting today,

25     I suggest that you reflect on the following question for when you make

Page 72

 1     your presentation.  I would like to refer, and you probably will not be

 2     surprised by this, to the Popovic case.

 3             In the Popovic case -- the trial.  Of course, I'm not speaking of

 4     the appeal but of the trial.  The trial rejected the charge that the

 5     forcible transfer of the women and children from Srebrenica and the

 6     Bosnian Muslims from Zepa fell within the ambit of Article 4(2)(C) of the

 7     Statute.  That's Popovic trial judgement, paragraphs 849 and 854.

 8             The Popovic Trial Chamber specifically rejected the notion that

 9     the destruction of the social structure of the community and the

10     inability of those who were forcibly transferred to reconstruct their

11     lives - I'm skipping a few words - are the kinds of conditions intended

12     to be prohibited by Article 4(2)(C) of the Statute.  That's paragraph 854

13     of the trial judgement.

14             This specific finding of the Popovic trial judgement was not

15     challenged on appeal by the Prosecution.  And my question to you is this:

16     In your view, was the interpretation of Article 4 of the Statute in the

17     Popovic case correct?  Should the Appeals Chamber find that reasoning

18     persuasive, even if not technically binding, authority for purposes of

19     the present case, in the case of Tolimir, and of course 4(2)(C) as you

20     know so well deals with genocide, and 4(2)(C) reads:

21             "Deliberately inflicting on the group conditions of life

22     calculated to bring about its physical destruction in whole or in part."

23             So if you could, when you make your statement, please enlighten

24     us on that -- on that -- on the relevance or not and the influence or not

25     of this statement in Popovic.


Page 73

 1             It probably does not make sense for me to ask you to use the five

 2     minutes before the break, so we will break now.  And let me see how much

 3     time do we need now.  I suppose that was 90 minutes.  Ninety minutes.  So

 4     in 90 minutes we will meet here, 90 minutes sharp counting from 12.15.

 5     We will now rise.

 6                           --- Recess taken at 12.13 p.m.

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

 8             JUDGE MERON:  Please be seated.

 9             The Appeals Chamber will now hear the Prosecution's response for

10     two hours.  I invite counsel for the Prosecution to present the

11     Prosecution's submissions.

12             Mr. Kremer.

13             MR. KREMER:  Thank you, Mr. President.

14             Your Honours, let me first begin by answering the question posed

15     by President Meron immediately before the break concerning the finding at

16     the Popovic trial judgement in paragraph 854, that the forcible transfer

17     operation was not found to be a condition deliberately imposed to bring

18     about the physical destruction of the group.

19             As a preliminary matter, let me note that the Prosecution's

20     failure to appeal that point should not be viewed as accepting that

21     finding.  The Prosecution could not have appealed the conclusion in the

22     Popovic case because there would have been no impact on the case since

23     the Popovic Trial Chamber had found that the underlying acts of genocide,

24     the killings, and serious bodily or mental harm were committed, and it

25     determined that the accused acted with genocidal intent.

Page 74

 1             But to get at the heart of your question, the difference between

 2     the findings by the Popovic and Tolimir Trial Chambers is explained by

 3     the fact that the two cases were charged differently.  In the Popovic

 4     case, the Prosecution at paragraph 33 of the indictment charged the

 5     forcible transfer as the relevant condition of life alone.  In this case,

 6     however, the Prosecution charged that it was the combined effect of the

 7     forcible transfer and the murder operation or the killing operation that

 8     consisted of the condition relevant under Article 4(2)(C) and that's our

 9     amended indictment at paragraph 24; thus, in the Popovic trial judgement,

10     the Trial Chamber only focused on the forcible transfer operation - and

11     you can see that at paragraph 854 of its judgement - where the

12     Trial Chamber emphasised that:

13             "The Trial Chamber notes that the Prosecution's allegation does

14     not include the effect of the killings on the Bosnian Muslim social

15     structure."

16             In this case the Trial Chamber looked at "the combined effect of

17     these operations" and how it had a "devastating effect on the physical

18     survival of the Bosnian Muslim population in eastern Bosnia."  And that's

19     at paragraph 766.  And our position is that the finding was entirely

20     reasonable for the reasons put forward by the Trial Chamber in the

21     judgement.

22             And I hope that answers your question.  Thank you.

23             Let me now begin by giving a road map of our submissions, and our

24     submissions basically will answer the seven questions and I -- I'm not

25     optimistic there is any further time to elaborate on the issues because

Page 75

 1     Mr. Gajic, too, has addressed only the seven questions.

 2             Just in terms of presentation, I will answer questions 1 through

 3     4 and 6 and 7, Mr. Wood will answer question 5.

 4             The questions posed in your October 31st addendum go

 5     fundamentally to three issues:  One, Tolimir's responsibility for the

 6     crimes as part of the JCE to murder; two, Tolimir's genocidal intent; and

 7     three, the crimes committed in Zepa.  I will begin by discussing

 8     Tolimir's participation in the JCE to murder and explain why it was

 9     entirely reasonable for the Trial Chamber to find that Tolimir intended

10     to participate in and significantly contributed to the JCE to murder.

11             In that discussion, I will also explain why it was appropriate

12     and necessary for the Trial Chamber to view Tolimir's acts, conduct, and

13     knowledge in light of his position and role as the chief of the sector

14     for intelligence and security affairs of the Army of Republika Srpska,

15     the VRS.  And when I complete my submissions, I hope to have fully

16     answered questions 3 and 4.

17             I will then discuss why the Chamber's finding, that Tolimir

18     possessed genocidal intent, was reasonable.  In doing so, I will explain

19     that the Chamber properly looked at Exhibit P488 as one piece of evidence

20     for assessing Tolimir's intent, and, in doing so, I will address both

21     question 6 and 7.

22             And, finally, I will address questions 1 and 2 on how the

23     killings and serious bodily or mental harm committed in the Zepa

24     operations were properly classified as underlying acts of genocide, and

25     how and when the Bosnian Serb forces killed the leaders from Zepa it was

Page 76

 1     properly determined that it was with genocidal intent.

 2             As the jurisprudence of the Tribunal recognises, the task of

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

 4     primarily to the Trial Chamber.  And I don't have to refer you but I will

 5     refer you to the recent Sainovic appeal judgement at paragraph 23 and the

 6     Kupreskic appeal judgement at paragraph 30.

 7             And because this assignment of this important judicial function

 8     to Trial Chambers, the Appeals Chamber gives a significant margin of

 9     deference to the findings of fact reached by a Trial Chamber.  Only where

10     the evidence relied on by the Trial Chamber could not have been accepted

11     by a reasonable tribunal of fact or trier of fact or where the evaluation

12     of the evidence is wholly erroneous does the Appeals Chamber substitute

13     its own finding for that of the Trial Chamber.  And that's again from

14     Kupreskic appeal judgement at paragraph 30.

15             I remind --

16             JUDGE ROBINSON:  Can I just ask --

17             MR. KREMER:  Yes.

18             JUDGE ROBINSON: [Microphone not activated] whether the

19     significance is your own authority.

20             Shall I repeat myself.

21             MR. KREMER:  No, I --

22             JUDGE ROBINSON:  I was inquiring whether the word "significant"

23     which you have used to describe the margin of deference is your own

24     description of whether it is taken from any -- in any case law.

25             MR. KREMER:  I would have to go back to the case law to see if

Page 77

 1     the word is used, but having regard to the -- the history of judicial

 2     review in this -- appellate review in the Appeals Chamber there is, I

 3     would submit, a history or a practice of giving significant deference to

 4     the findings of fact made by Trial Chambers, particularly given the

 5     length of the trials, the number of witnesses heard, the issues that are

 6     being heard in relation to the meaning of documents in -- in the context

 7     of the -- the conflict as a whole and the specific allegations made by

 8     the Prosecution specifically.

 9             So --

10             JUDGE ROBINSON:  Thank you, I'm more content with that.

11             MR. KREMER:  Thank you.

12             JUDGE ROBINSON:  That's the margin of deference.

13             JUDGE MERON:  Could I just draw the attention of the Bench and

14     the others in the room that the question asked by my colleague Judge

15     Robinson in the transcript has been attributed to Judge Sekule and I'm

16     told that Judge Sekule does not want to claim Judge Robinson's laurels.

17             JUDGE SEKULE:  Yes, indeed.

18             MR. KREMER:  Thank you.

19             And on that point in this case the Trial Chamber heard over

20     400 -- 242 days of trial, listened to the testimony of 183 Prosecution

21     witnesses, 4 Defence witnesses, and received 2.962 Prosecution exhibits

22     and 533 Defence exhibits.

23             The Trial Chamber judgement, I would submit, provides an

24     excellent example on how to properly evaluate evidence and apply the

25     reasonable doubt standard.  The judgement first sets out the general

Page 78

 1     principles the Trial Chamber applied at paragraphs 30 to 35 and then it

 2     proceeded to apply them.  The judgement with its carefully and fully

 3     articulated reasons, we submit, does not allow for judicial intervention.

 4             Now let me now turn to the questions concerning Tolimir's

 5     participation in the JCE to murder, beginning with question 3.  And this

 6     question is important because it is also reflected as a repeating theme

 7     in Tolimir's appeal; namely, his suggestion that he was convicted on the

 8     position -- on the basis of the position he held, not on what he did.  In

 9     fact, he was convicted on what he did based on the position he held.  In

10     short, our answer to your question is no.  The question was whether the

11     Trial Chamber erred in relying, inter alia, on Tolimir's position as

12     chief of the sector for intelligence and security affairs and his

13     professional control of subordinate security and intelligence organs in

14     finding that Tolimir was:  One, aware of his subordinate's involvement in

15     the JCE to murder; and two, intended to participate in the JCE to murder.

16             The Trial Chamber reasonably used General Tolimir's position and

17     role as assistant commander to Mladic in the VRS Main Staff and chief of

18     the sector for intelligence and security affairs and of his professional

19     control of subordinate organs in the VRS in assessing his awareness of

20     his subordinates' involvement, his intention to participate in the JCE to

21     murder, and to properly interpret Tolimir's acts and omissions in the

22     performance of his duties which facilitated the murder operation.

23             As an initial matter, the Trial Chamber was correct to look at

24     Tolimir's position when assessing his participation in the JCE to murder.

25     The Appeals Chamber at paragraph 192 of the Kvocka appeal judgement has

Page 79

 1     held that while a position of authority is not a material condition

 2     required under JCE theory, it is a relevant factor in determining the

 3     scope of the accused's participation in the common purpose.

 4             Therefore, as a legal matter, the Trial Chamber correctly and

 5     properly looked at Tolimir's position when assessing the other evidence

 6     showing his JCE participation.  In fact, it would have been an error not

 7     to rely on this evidence.

 8             Now the significance of General Tolimir's position is evident

 9     when you understand who he was, what his duties, powers, and authorities

10     were, how the chain of command in the VRS worked, and why this was

11     important when assessing his conduct.  To murder over 5700 Bosnian Muslim

12     men and boys over the span of only four days while having forcibly

13     displaced up to 30.000 Bosnian Muslim civilians from Srebrenica and

14     approximately 4400 civilians from Zepa required planning and

15     co-ordination within the VRS starting with the Main Staff.  It also

16     required clear command responsibilities, an operational communication

17     system and an enforced efficient functioning reporting system from the

18     ground up to the VRS Main Staff.

19             Most important was that each JCE member and their tools in the

20     VRS acted in accordance with the line of subordination and the principle

21     of unity of command.  And I refer you to judgement paragraphs 95, 1125,

22     and 1165.

23             And we know that Tolimir was the assistant commander to Mladic in

24     the VRS Main Staff and he's chief of the sector for intelligence and

25     security affairs from as early as mid-December 1992.  That's in trial

Page 80

 1     judgement paragraph 913.

 2             Through his position, Tolimir commanded his immediate

 3     subordinates Ljubisa Beara, chief of security, and Petar Salapura, chief

 4     of intelligence.  And he controlled the work of subordinate security and

 5     intelligence organs.  And that's at trial judgements paragraph 103 to

 6     104.

 7             And, Your Honours, paragraphs 103 to 122 detail the functioning

 8     of the sector of intelligence and security affairs based on the evidence

 9     that the Trial Chamber heard.

10             Tolimir's professional control of his subordinate security and

11     intelligence organs work was highly relevant because such a significant

12     number of subordinates in his professional chain of command were involved

13     in the murder operation and played a significant role in its success.

14     They included Beara, Salapura, Radoslav Jankovic, Popovic, Kosoric,

15     Golic, Momir Nikolic, Drago Nikolic, Trbic, Carkic, and military police

16     among others.  And that's found at trial judgement 1098.

17             As General Skrbic told the Trial Chamber, VRS Main Staff

18     assistant commanders were "experts for the implementation of the

19     commander's orders and decisions in the best possible way."  That's cited

20     at trial judgement paragraph 916.

21             As a VRS Main Staff assistant commander, General Tolimir was

22     directly subordinated to Mladic.  That's trial judgement paragraphs 92

23     and 914.  He was responsible for implementing and monitoring all security

24     and intelligence related orders from Mladic and was duty-bound to see

25     that they were carried out.  Tolimir was Mladic's order implementer,

Page 81

 1     trial paragraph 916.  General Tolimir was also the highest-ranking

 2     officer in the VRS with expertise in all prisoner-related matters

 3     including management of their detention, security, transportation,

 4     interrogation, and exchange.  And that's found in trial judgement

 5     paragraphs 106, 110 to 111, 914, 916, and 920.

 6             And given his prisoner management function, as will be discussed

 7     later in more detail, he failed to fulfil one of his primary duties:  To

 8     protect the prisoners.

 9             JUDGE MERON:  Do tell me, Mr. Kremer, if supposing for a moment

10     that you would have had no evidence regarding Mr. Tolimir and Tolimir had

11     anything to do with the POWs.

12             MR. KREMER:  Yes.

13             JUDGE MERON:  You would only have his role which you explained.

14     On the basis of his role and command responsibility, could you have made

15     the same case?

16             MR. KREMER:  Yes.

17             JUDGE MERON:  Even without any specific evidence about his

18     involvement with the POWs?  Just because we heard he was deputy number

19     two and he had the role of intelligence security responsibilities --

20             MR. KREMER:  That brings me to my next point.  You may have been

21     divining what I'm about to --

22             JUDGE MERON:  So I should just wait.

23             MR. KREMER:  What I'm about to say.  Tolimir's other important

24     function, and this, I think, is to Your Honour's question, was to prevent

25     leaks of highly classified information as well as to cover up VRS actions

Page 82

 1     and intentions which he did during the murder operations.  He was the VRS

 2     secret keeper and intelligence gatherer.  And that's found in

 3     trial judgements 914 to 915.

 4             JUDGE MERON:  So you are saying now that there were certain

 5     actually evidentiary things bearing on the question of connection.

 6             MR. KREMER:  Yes, they were --

 7             JUDGE MERON:  My question was if you would not have had that

 8     latter evidence, just on the basis of his authority, could you say that

 9     it's inconceivable that as number two of Mladic you would not have known,

10     et cetera, et cetera?

11             MR. KREMER:  If -- if the only evidence you had that he was the

12     number two person for --

13             JUDGE MERON:  Correct.

14             MR. KREMER:  -- General Mladic and nothing else --

15             JUDGE MERON:  That's my question.

16             MR. KREMER:  -- no other evidence, no orders, no activity, then

17     obviously we wouldn't be here.

18             JUDGE MERON:  Okay.

19             MR. KREMER:  But we have a pile of evidence that the

20     Trial Chamber chronicled carefully and fully from people within the

21     military, outsiders, and victims.

22             JUDGE MERON:  So it's not just the function.

23             MR. KREMER:  Not just the function at all.

24             JUDGE MERON:  Thank you.

25             MR. KREMER:  In fact, it's the function that gives meaning to

Page 83

 1     what's happening.  And a document by itself may have no special

 2     significance, but once you understand who is sending the document, who is

 3     receiving, and in light of what's going on in the ground, then it makes a

 4     lot more sense.  And so it's -- his function gives context, gives meaning

 5     to the events.

 6             JUDGE MERON:  Thank you, Mr. Kremer.

 7             MR. KREMER:  And in addition to these key responsibilities,

 8     Tolimir had a very close relationship with Mladic and was described, as

 9     Mr. Gajic said earlier, his right-hand man, his eyes and ears, and the

10     person Mladic trusted most.  Mladic regularly consulted him before taking

11     a decision, they worked closely together through the murder operation,

12     and at a new year's celebration in January 1996, Mladic himself referred

13     to Tolimir as being a part of his inner core that took the most important

14     decisions during the war.  And that's at trial paragraph 915 and 921.

15             Mr. Gajic's suggestion that Krstic, who had just been appointed

16     to the Drina Corps command at this time or at the time the killings were

17     started, was similarly situated to Tolimir is not grounded in reality.

18     Krstic was not in Mladic's inner core.  Krstic was not a VRS Main Staff

19     assistant commander responsible for implementing Mladic's decisions or

20     due to Tolimir's specific expertise the highest-ranking officer for

21     secret keeping and managing prisoners.

22             Let me turn to the JCE to murder, which embraces question 4.

23     Question 4 asks whether the Trial Chamber erred in finding that the only

24     reasonable inferences from the evidence on the record were that Tolimir

25     intended to participate in and significantly contributed to the JCE to

Page 84

 1     murder.  Our answer is no.

 2             The question, I would suggest, as framed misreads the judgement.

 3     In deciding on the essential elements of his criminal responsibility for

 4     JCE to murder, the Trial Chamber applied the law to the facts correctly.

 5     It concluded that Tolimir's significant contribution to and participation

 6     in the JCE to murder had been proved beyond reasonable doubt.  And I

 7     refer you to trial judgement 1115 and 1129 which are the conclusions as

 8     to the significant contribution and shared intent.

 9             In making its factual decisions within paragraphs 1099 to 1128

10     where it discusses the supporting evidence to or the supporting findings

11     for its conclusion, it made determinations on circumstantial evidence.

12     And when it did so, it applied the only reasonable inference test.  Where

13     there was direct evidence or a combination of direct and circumstantial

14     evidence, the Trial Chamber made its finding using the reasonable doubt

15     standard.  And this can be seen in several places in paragraphs 1099 to

16     1028.  Our position quite simply is that the question, properly framed,

17     would have been whether the Trial Chamber erred in finding that it had

18     been established beyond reasonable doubt from the evidence on the record

19     that Tolimir intended as opposed to that the only reasonable inferences

20     from the record.

21             Our position is that the only reasonable inference test is not

22     the test for determining guilt or innocence or the essential elements of

23     the crime.

24             Now as I have mentioned, the Chamber took a comprehensive

25     contextual approach when judging Tolimir's participation in and

Page 85

 1     contribution to the murder.  Today Mr. Gajic continued the Defence

 2     approach of referring to pieces of evidence in isolation.  In contrast,

 3     the Chamber's conclusions were based on multiple strands of

 4     interconnecting and mutually corroborating evidence taken in context of

 5     all of the relevant evidence including, as we have just discussed, the

 6     evidence of Tolimir's position and responsibilities as well as his

 7     professional control over subordinate organs.

 8             Now, Mr. Gajic went through a chronology of events and challenged

 9     little pieces based on his interpretation which is similar to what he

10     does in his appeal brief.  I'm just going to highlight a few of the key

11     events that the Trial Chamber relied on in making its decision about the

12     individual criminal responsibility of General Tolimir in the JCE to

13     murder.

14             By the morning of 12 July, the Chamber found that a common plan

15     existed among members of the Bosnian Serb forces to murder Bosnian Muslim

16     able-bodied men from Srebrenica.  And on the morning of the 12th,

17     Tolimir's subordinates, Popovic, Momir Nikolic, and Kosoric, discussed

18     the murder operation in front of Hotel Fontana.  Mladic mirrored their

19     discussions, remarking that morning in the Hotel Fontana meeting that his

20     forces would screen the Bosnian Muslim men to identify war criminals and

21     that the Bosnian Muslims could "survive or disappear."

22             We know from what ensued that no actual registration or screening

23     took place following the separation and capture of the Bosnian Muslim men

24     and boys.  On the contrary, as foreshadowed by Mladic, the men and boys

25     were disappeared in the ensuing mass executions while the 30.000 women,

Page 86

 1     children, and elderly were expelled from Srebrenica and were effectively

 2     disappeared from eastern Bosnia.  Trial judgements 1045 to 1047.

 3             On the morning of the 12th, Tolimir was in Bijeljina issuing

 4     instructions to Todorovic, the chief of security of the

 5     Eastern Bosnian Corps to prepare the Batkovic collection centre for the

 6     arrival of 1.000 to 1300 POWs.  It's at trial judgement 931.  The POWs in

 7     question were the Bosnian Muslim men and boys who had gathered at

 8     Potocari following the Srebrenica attack and take-over and were being

 9     separated and detained by the Bosnian Serb forces, trial judgement 293.

10             Throughout the day, Tolimir was receiving reports from his

11     Drina Corps security and intelligence chiefs, Popovic and Golic, and

12     others about the situation in Potocari.  For instance, Tolimir received

13     Popovic's late afternoon report stating that:

14             "We are separating men from 17 to 60 years of age and we are not

15     transporting them.  The security organs and the state security are

16     working with them."

17             And that's trial judgement 1100, Exhibit P2069.

18             Radoslav Jankovic, Tolimir's subordinate in the Main Staff

19     intelligence administration, attended meetings at the Hotel Fontana on

20     the 11th and 12th of July.  The Trial Chamber had no doubt that Tolimir

21     was informed of the discussions at these meetings, paragraph 1087.  The

22     Chamber found that Tolimir was made aware of the situation that

23     transpired on the ground in Srebrenica, and that's in judgement paragraph

24     1100 to 1101.  And Tolimir, by issuing two reports concerning the

25     separations of the able-bodied Muslim men in Potocari as well as the

Page 87

 1     arrests from the column himself, demonstrated his understanding of what

 2     was happening in Potocari.  And that's judgement paragraph 1101, and the

 3     two reports are P2203 and D64.

 4             Now what happens on the next day, July 13th, is critical to an

 5     understanding of why General Tolimir was properly convicted.  On the

 6     13th of July, Tolimir's communications completely changed, and this

 7     change becomes highly relevant particularly when viewing what Tolimir did

 8     and said in relation to what was happening on the ground.  By the early

 9     afternoon of 13 July, approximately 5.000 Bosnian Muslim males from the

10     column that had fled Srebrenica had been captured by or had surrendered

11     to Bosnian Serb forces.  That's in trial judgement paragraphs 315 to 321,

12     323, 330, 336, and 820.

13             Between 2.00 to 3.00 p.m., noting that over 1.000 Bosnian Muslims

14     were being detained in the Novo Kasaba area, Tolimir proposed measures to

15     the MP battalion commander Malinic to "take measures to remove war

16     prisoners from the main Milici-Zvornik road.  Place them somewhere

17     indoors or in an area protected from observation from the ground or the

18     air," judgement paragraph 936 and 1103, and Exhibit P125.

19             To clarify, it was along the Milici-Zvornik and the

20     Konjevic Polje-Bratunac roads where the Bosnian Muslim males from the

21     column were being captured or were surrendering.  Also, the only forces

22     who could observe the prisoners from the air, the only forces with access

23     to air-space above the area were the internationals.

24             Tolimir's proposal was incorporated into Mladic's order issued

25     that same night regarding control of information about prisoners and

Page 88

 1     prohibition of traffic.  And the Chamber found that both reflected the

 2     effort to conceal the murder operation and both were acted upon, trial

 3     judgement 946, 1055, and 1103.

 4             Now between the issuance of Tolimir's proposal and Mladic's

 5     subsequent order, up to 1.000 prisoners in this area were taken to the

 6     Kravica warehouse and were executed.  The thousands of other prisoners

 7     were placed on buses, in schools, and in hangars in Bratunac to spend the

 8     night hidden from sight, being moved to mass execution sites in the

 9     Zvornik area of responsibility in the coming days.  And that's at

10     judgement paragraphs 946, 1053, footnote 4148, and 1054.

11             The Chamber reasonably concluded that General Tolimir's proposed

12     measures "reflect the co-ordinated effort to conceal the despicable plan

13     contemplated among the members of the JCE to murder," judgement paragraph

14     1103.  But it isn't these actions alone that --

15             JUDGE MERON:  My colleague Judge Guney would like to ask a

16     question.

17             MR. KREMER:  Yes.

18             JUDGE GUNEY:  Sorry to interrupt you.  I understand that the

19     operation conducted in Zepa and Srebrenica had different features.

20     However, it is my understanding that they both aimed at the removing the

21     Bosnian Muslim civilian population within the area whether by forcible

22     displacement or killings or both.  Would this be also a reasonable

23     assessment?

24             MR. KREMER:  The answer to your question is yes.  The

25     Trial Chamber looked at the operation singly because the operation

Page 89

 1     initially, starting with Directive 7, Krivaja 95, orders, and looking at

 2     the forces involved, the nature of the attacks, there were similarities.

 3     The one single difference between Srebrenica and Zepa was the fact that

 4     the Zepa men, the soldiers, were able to escape into the forests before

 5     they could be captured.  And that -- whereas able-bodied men and boys

 6     were captured in Srebrenica and ultimately captured as the column was

 7     attempting to flee, and we'll get into this later, but our position is,

 8     and the Trial Chamber rightly found, that the operation was a single

 9     operation against the three enclaves, Gorazde, Srebrenica, and Zepa.

10     We're just dealing with Srebrenica and Zepa.  And the Srebrenica enclave

11     being the biggest was attacked first, Zepa being nearby was attacked by

12     the same forces, and we agree with your question that although there are

13     slight differences the -- it was based on both a forcible transfer a -- a

14     military attack to transfer the population out.  It turned into a JCE to

15     murder at some point, and the Zepa situation didn't turn into the scale

16     of murders simply because the targets -- the military-aged men had fled

17     to the forests.

18             JUDGE GUNEY:  Thank you.

19             JUDGE MERON:  Could you expand a little bit on the last point you

20     have made.  How do you explain that there were no mass killings in Zepa?

21             MR. KREMER:  By the time they took the town, there were no

22     military-aged men left.

23             JUDGE MERON:  So that's basically it?

24             MR. KREMER:  That's --

25             JUDGE MERON:  Nobody to kill?

Page 90

 1             MR. KREMER:  That's my understanding.  They could have pursued --

 2     it was pursued and they finally fled to Serbia and other parts, but the

 3     people left in Zepa were primarily women and children.

 4             JUDGE MERON:  Thank you.

 5             MR. KREMER:  The Chamber -- yes.

 6             JUDGE MERON:  If I may keep you for another moment.  With regards

 7     to the involvement of General Tolimir that you have been talking about,

 8     is the joint criminal enterprise to murder the only mode of liability

 9     that fits these factual descriptions?  Would other modes fit them; in

10     particular, aiding and abetting?

11             MR. KREMER:  Mr. Wood will answer that question.  The answer is

12     other modes would fit.  Our position is that the JCE to murder is the

13     most appropriate under the circumstances of this case.

14             JUDGE MERON:  In contrast to Krstic.

15             MR. KREMER:  In contrast to Krstic, yes.

16             JUDGE MERON:  Thank you.

17             MR. KREMER:  Getting back to -- there are two additional actions

18     by Tolimir on the 13th with -- which reinforce the conclusion that he was

19     involved in the JCE to murder.  First, that evening Tolimir sent a

20     telegram to the VRS Main Staff and to Gvero personally proposing the

21     transfer of 800 prisoners to Sjemec farm to be "done at night."  At a

22     time when all facilities in Bratunac were already overloaded with

23     prisoners, and that's found in judgement paragraphs 1105 to 1106, this

24     proposal was consistent with his earlier proposal to detain the Bosnian

25     Muslims prisoners indoors and out of sight from the ground and air.  And

Page 91

 1     that's again found in P125.

 2             JUDGE MERON:  Can you explain for the record what you mean by "to

 3     be done at night"?

 4             MR. KREMER:  Under cover of darkness where you couldn't be seen

 5     by either the aerial surveillance by the internationals or seen clearly

 6     by other people who might be providing information, sources of

 7     information to the internationals.  The whole point of the exercise was

 8     to keep the operation secret so they could complete it, and we have to

 9     recognise that before the murders started they were digging graves in

10     order to bury the bodies and cover them up and we have more evidence at

11     the end after the operation is over of the reburials in order to keep

12     this from being disclosed as the heinous crime that it was ultimately

13     shown to be.

14             In addition to carrying out his secret keeping duties, in other

15     words, concealing the murder operation, he was also actively contributing

16     to it through his prisoner management and duties and capabilities.  He

17     was well aware that Sjemec was not an appropriate facility to house

18     prisoners in.  He knew that there was no agricultural work to be done

19     there and that like the Kravica warehouse the fate of any prisoners taken

20     there would be certain death at the hands of the VRS.

21             Tolimir's Sjemec telegram was sent around the time when Tolimir's

22     subordinates, Beara, Momir Nikolic, and Drago Nikolic, were working out

23     the practical details of the killing operation including arranging for

24     the burial of hundreds of Muslim men killed at the Kravica warehouse that

25     afternoon and evening as well as organising the transfer of the Bosnian

Page 92

 1     Muslim prisoners from Bratunac to Zvornik where they would be killed.

 2     And I refer you to judgement paragraphs 364 to 366, 402 to 404, 1055 to

 3     1057.

 4             Second additional point.  As early as 13 July, Tolimir cancelled

 5     his previous order to Todorovic to prepare Batkovic for a thousand to

 6     1300 prisoners.  He told Todorovic: "Drop any further preparations.  The

 7     task has been abandoned."  Todorovic explained this meant nothing "would

 8     come out of it.  The prisoners would not be coming."  And the judgement

 9     paragraphs 555, 951, 1103, and paragraph -- or transcript

10     paragraph 12942.

11             Your Honours, when Tolimir instructed that preparation should

12     cease, he as the highest-ranking officer involving prisoner management

13     knew the prisoners were to be murdered.  Importantly, on 13 July,

14     Tolimir's direct subordinate Beara was already in Bratunac arranging the

15     murder of prisoners.  And that's in judgement paragraphs 364 to 366 and

16     1055.

17             Given Tolimir's professional command and control over Beara, he

18     knew both of Beara's whereabouts and specific tasks.  And this becomes

19     abundantly clear in light of what Tolimir says and does in subsequent

20     days.  Viewed together, the Chamber's conclusion that Tolimir knew of the

21     murder plan by the afternoon of 13 July was entirely reasonable.  And I

22     refer you to that conclusion at paragraph 1104.

23             Turning now to the 14th of July, Tolimir continued to take steps

24     to conceal the murder operation and his direct subordinates continued to

25     be active in it.  General Tolimir conveyed a warning to Mladic -- from

Page 93

 1     Mladic to the Drina Corps command and subordinate units, including the

 2     Zvornik Brigade, concerning the presence of unmanned aircraft, judgement

 3     paragraph 1108.  At this time the transportation of the remaining

 4     prisoners from Bratunac into the Zvornik area and the killings of up to

 5     2500 Bosnian Muslim men and boys were taking place at Orahovac in the

 6     Zvornik area of responsibility.  Also ongoing were the final executions

 7     at Kravica as well as the transportation to the Glogova burial site of up

 8     to 1.000 bodies of Bosnian Muslim men who had been killed at Kravica

 9     warehouse the previous day.  And that's judgement paragraphs 353 to 371

10     and 376 as well as 405 to 439.

11             Tolimir's warning supports his knowledge of what was happening to

12     the thousands of men who had been captured on the 12th and 13th of July.

13     As the Trial Chamber reasonably found in the last sentence of

14     paragraph 1108:

15             "Given that on this day the killings in Zvornik started at

16     Orahovac, the only reasonable inference is that the accused sent the

17     warning in order that the murder operation would be carried out without

18     being detected."

19             Tolimir's proposal to shoot down the aircraft also reflects the

20     measures he was willing to take as part of his secret keeping function.

21             The next day on the 15th of July, killings continued in the

22     Petkovci dam, Rocevic school, and Kozluk.  These killings, like the

23     previous days killings in Orahovac and the Petkovci school, were carried

24     out by the Zvornik Brigade military police under the supervision of

25     Tolimir's subordinate security organs including Popovic and

Page 94

 1     Drago Nikolic, judgement paragraphs 417 to 418, 442, 460 to 471, 481 to

 2     482, 1059 to 1060.

 3             Throughout this time Beara was not just supervising the detention

 4     sites but was intimately involved with obtaining troops to ensure the

 5     ruthlessly efficient continuation of the mass executions of the

 6     Bosnian Muslim men and boys and he remained in close contact with

 7     Popovic.  And that's judgement paragraphs 1058 to 1060.

 8             On the 16th of July Tolimir issued instructions to his

 9     subordinates in the intelligence administration, including Salapura,

10     concerning safer ways to communicate to prevent detection.  That same day

11     the 10th Sabotage Detachment, a unit controlled by Salapura, was

12     executing prisoners at the Branjevo military farm, judgement paragraphs

13     490 to 500, 508, 957, and 1109.

14             In addition, Popovic was present in the area having requested 500

15     litres of fuel to be provided for the transportation of the prisoners

16     from Kula school to the Branjevo farm.  Judgement paragraph 1061,

17     footnote 2156, Exhibit P846.

18             The Chamber reasonably found that the accused as the direct

19     superior of Salapura was kept abreast of all of the actions of the

20     10th Sabotage Detachment and it reasonably concluded that "it is

21     inconceivable that the accused was kept in the dark about the murders in

22     the relevant sites at the time.  Instead, he tacitly approved to make

23     these murders happen."  Judgement paragraphs 115 to 118, 120 to 122 and

24     1112.

25             The same evening on the 16th of July, Tolimir was at a meeting at

Page 95

 1     the Main Staff headquarters with Mladic and others to plan the so-called

 2     sweep operations in the Bratunac area designed to eliminate any remaining

 3     Bosnian Muslim men who were fleeing and had not yet surrendered and been

 4     murdered.  Tolimir stated that Beara was in the Drina Corps zone of

 5     responsibility, reflecting, again, that he knew of Beara's activities and

 6     whereabouts.  At the time, the ongoing murder operation in the Zvornik

 7     area was coming to a close, judgement paragraph 958 to 959 and 1109.

 8             Evidence indicates that by the 18th of July rumours concerning

 9     the fate of the Bosnian Muslim males was beginning to circulate within

10     the international community, paragraph 1062.  On this day through his

11     subordinate Jankovic, Tolimir was consulted on the fate of evacuation of

12     workers from Medecins Sans Frontieres and their local staff who were

13     highly visible and known to the international community.  His advice was

14     to let them go to divert the attention and pressure from the

15     international community about the whereabouts of the Srebrenica men,

16     judgement paragraph 1110.

17             This shows that as part of his secret keeping function Tolimir

18     attempted to cover up the murders even after they had been mostly

19     completed and that he had authority to release prisoners.  Tolimir's

20     actions on the 22nd of July reinforce that he knew about the murder

21     operation and was in constant contact with his subordinates involved in

22     the executions.

23             Tolimir spoke to his subordinate Popovic and instructed Popovic

24     to "do his job."  And, as we know, the next day Popovic supervised the

25     10th Sabotage Detachment in the Bisina killings.  The Chamber reasonably

Page 96

 1     concluded that he knew about these murders as well as the Branjevo farm

 2     murders carried out by the 10th Sabotage Detachment six days earlier,

 3     that he had tacitly approved to make them happen, and that he no doubt

 4     shared the intent to carry them out, judgement paragraphs 976, 1111, and

 5     1112.

 6             But even after the murder operation was completed, Tolimir

 7     continued to exercise his secret keeping and prisoner management

 8     functions relating to the JCE to murder.  Contrary to Mr. Gajic's

 9     statement about Tolimir's care for the proper treatment of prisoners, in

10     late July and early August 1995 Tolimir issued instructions in conflict

11     with military regulations and international law, that detainees not be

12     registered and not be reported to international organisations,

13     Exhibit P122 and Exhibit P2875.

14             Looked at in conjunction with his orders throughout the murder

15     operation to conceal the whereabouts of the Bosnian Muslim men who were

16     being transported and executed, these instructions confirm his intention

17     to keep the murder operation a secret, judgement paragraphs 671, 997, and

18     1123.

19             In August and September 1995 when asked by family members of

20     Bosnian Muslim men and boys who had just been executed en masse why POW

21     exchanges weren't taking place, Tolimir deliberately lied explaining that

22     only a small number of enemy soldiers had been captured, judgement

23     paragraphs 1003 to 1004 and 1114.

24             He knew, of course, that thousands upon thousands of men had been

25     captured and executed in mid-July and that as of September and into

Page 97

 1     October his subordinates were participating in reburial operations

 2     designed to conceal this genocide, judgement paragraphs 558 to 565, 1064,

 3     1066, and 1114.

 4             Your Honours, in addition to these positive contributions to the

 5     murder operation, his intent, knowledge, and responsibility is enhanced

 6     by what he failed to do.  The Trial Chamber was entirely reasonable in

 7     concluding that despite "his knowledge of the situation on the ground and

 8     of his obligations towards POWs, there is no evidence that Tolimir

 9     attempted to distance himself from the crimes and take any action to

10     fulfil his duties towards POWs."  And that's at judgement paragraph 1128.

11             His failure to protect the Bosnian Muslim prisoners from

12     Srebrenica significantly contributed to the JCE to murder, that's another

13     quote from 1128, as is the following, Tolimir engaged himself in the

14     covering up the common purpose of the JCE to murder and chose not to act

15     resulting in the commission of crimes.

16             To conclude in answer to your question 4, given all of the

17     mutually reinforcing evidence on the record, taken as a whole, including

18     the evidence of Tolimir's position and responsibilities, his professional

19     control of his subordinates, his acts and omissions at the relevant time,

20     what actually took place on the ground following the fall of Srebrenica,

21     and the fact that vast numbers of his subordinates under his professional

22     command and professional control were active participants in the murder,

23     it was reasonable of the Trial Chamber to conclude that the -- that

24     Tolimir intended to participate in and significantly concluded --

25     contributed to the JCE to murder.

Page 98

 1             JUDGE MERON:  Is there another alternative possible

 2     interpretation to the orders not to register?

 3             MR. KREMER:  If you look at the order in isolation, maybe.  If

 4     you looked at it in the context of what is happening -- what had happened

 5     and what was happening at the time, the answer is no.

 6             JUDGE MERON:  It's an obligation under the third

 7     Geneva Convention to register.  I think it's quite clear, isn't it?

 8             MR. KREMER:  Yes.

 9             JUDGE MERON:  Thank you.

10             MR. KREMER:  Your Honours, I remind you that my remarks contain

11     Tolimir's key acts and omissions from which the Chamber inferred that

12     Tolimir was a member of and contributed to the JCE to murder.  And I

13     remind you that the Trial Chamber did not view any of the evidence in

14     isolation.  Each fact was viewed in context.  And the Chamber's ultimate

15     conclusion was based on the entire body of evidence, not just one

16     exhibit.

17             The Chamber's detailed and comprehensive analysis of these

18     matters can be found at paragraphs 1099 to 1129 of the judgement.  And as

19     I've said, the conclusion as to Tolimir's criminal responsibility was

20     made based on what was reasonable and should not be interfered with.

21             And as you've asked and I've forecast, Mr. Wood will discuss the

22     Chamber's question relating to the other modes of responsibility.

23             Let me now move to Tolimir's genocidal intent.

24             JUDGE MERON:  [Microphone not activated] One second.

25             I am looking at paragraph 650 and so on of the judgement

Page 99

 1     regarding evacuation from Zepa.  You mentioned in answering my questions

 2     a few minutes ago regarding why there were no large-scale killings in

 3     Zepa by saying that there were no militarily-aged men left.

 4     Paragraph 651:

 5             "The departure of military-aged men from Zepa and the interlinked

 6     issue of the intended POW exchange were also discussed and Torlak said

 7     that departure of military-aged men would be the biggest problem in the

 8     implementation,..." et cetera.

 9             So these militarily-aged men were not killed.  How to reconcile

10     that with the genocidal intent of Tolimir that you have argued?

11             MR. KREMER:  I'll deal with that shortly.  But basically his

12     intent can be looked at as a separate issue.  We have to determine

13     whether there were underlying acts of genocide and whether Tolimir had

14     genocidal intent. The fact that these military-aged men were able to flee

15     to the forest and hide and the VRS didn't have the capacity to pursue

16     them, and the Trial Chamber also discussed the fact that it was becoming

17     apparent very soon that the situation in Srebrenica was a grave one, and

18     in fact people who had escaped Srebrenica were arriving in Zepa and

19     giving the inhabitants information about what had happened to the --

20     excuse me.

21             JUDGE MERON:  I have a very good recollection that actually there

22     was some evacuation.

23             MR. KREMER:  Pardon?

24             JUDGE MERON:  I have a very good recollection that there was some

25     actually arranged evacuation of those military-aged men from Zepa.  Now,

Page 100

 1     if they --

 2             MR. KREMER:  There -- there is an order that I think Mr. Gajic

 3     referred to that -- a Serbian report that suggests that the ABiH ordered

 4     them to evacuate, I think.

 5             JUDGE MERON:  So in short, there were some military men --

 6             MR. KREMER:  Yes, there is --

 7             JUDGE MERON:  -- who -- and obviously there was no intent to kill

 8     them.  It's not that there were no military-aged men as you answered

 9     before.

10             MR. KREMER:  There were no military-aged men that were captured

11     that could be killed.  Whether the intent to kill them had they captured

12     them is -- is a factual question that is a little bit complicated and

13     I'll try and deal with it in the genocide part, giving you some context.

14     And hopefully I can resolve your --

15             JUDGE MERON:  Sure.

16             MR. KREMER:  Your uncertainty.  And if I don't, I'll try to

17     answer any further questions.

18             Turning now to Tolimir's conviction for genocide and questions 6

19     and 7.  The Trial Chamber properly found that Tolimir had genocidal

20     intent and committed genocide, and this finding was based on a wide range

21     of facts which the Chamber summarised in paragraph 1172 of the judgement.

22             The Chamber relied on the fact that Tolimir was an active

23     participant in both the forcible transfer and murder JCEs, and such

24     evidence was highly relevant to its determination of Tolimir's genocidal

25     intent because the Chamber found that the goal of these two operations

Page 101

 1     went beyond the mere dissolution of the Bosnian Muslims of

 2     eastern Bosnia, found that "these operations were aimed at destroying

 3     this Bosnian Muslim community and preventing reconstruction or

 4     reconstitution of this group in the area," and that's judgement 766.

 5             And it thus found that both the forcible transfers and the

 6     murders were carried out with genocidal intent and that Tolimir knew

 7     this, and that's judgement paragraph 1166.

 8             The Chamber further relied on Prosecution Exhibit 488, Tolimir's

 9     July 21 proposal to destroy groups of fleeing Muslim refugees.  And the

10     Chamber found that this was a compelling example of Tolimir's own words

11     demonstrating his genocidal intent.

12             And I'll deal with question 7 first.  Exhibit 488, which asks

13     whether the Trial Chamber erred in relying on this exhibit to infer

14     Tolimir's genocidal intent, our answer is, no, the Trial Chamber did not

15     err.  In fact, the Trial Chamber would have erred if it had not relied on

16     this exhibit when inferring his genocidal intent.

17             And let's just look at the document briefly and ask ourselves

18     why.  Quoting from the document, and this is the same passage that was

19     referred to by Judge Antonetti earlier this morning, and I'm reading from

20     the English translation, not the French, because I don't have it:

21             "We believe that we could force Muslims to surrender sooner if we

22     destroy groups of Muslim refugees fleeing from the direction of Stublic,

23     Radava, and Brloska Planina."

24             The fundamental question for genocidal intent is did Tolimir

25     intend to destroy a part of the group as such, and it is hard to imagine

Page 102

 1     evidence more relevant to genocidal intent than Tolimir's own words.  The

 2     Trial Chamber reasonably found at paragraph 1171 of the judgement that

 3     the document "manifests the accused's determination to destroy the

 4     Bosnian Muslim population."  And it noted in the paragraph in the exhibit

 5     that it showed Tolimir's state of mind during the forcible removal

 6     operation and his full knowledge of the predicament of the vulnerable

 7     civilian population in Zepa.  And it also noted that the document showed

 8     his "fervent and tactical intention to remove the Bosnian population from

 9     the Zepa enclave."

10             The Chamber also relied in this paragraph on the timing of the

11     document.  It was issued on the 21 July, 1995, after the Bosnian Muslim

12     population had been forced out of Potocari, resulting in the serious

13     bodily and mental harm and during the time-period when the accused was

14     deeply involved in covering up the murder operation being carried out

15     with genocidal intent and in preparing the forced movement of the

16     Bosnian Muslim population of Zepa.

17             And direct evidence like this of genocidal intent is rare as the

18     Appeals Chamber recently noted in Karadzic 98 bis appeal judgement at

19     paragraph 80.

20             I just want to turn to Mr. Gajic's arguments today on P488.

21     Mr. Gajic today wrongly focused on the term "surrender" at the beginning

22     of the relevant paragraph and claims that P488 is only involved in a

23     military objective.  However, the Trial Chamber reasonably found that

24     Tolimir's reference in paragraph 488 to "ABiH surrender" formed part of

25     his overall goal of expelling the Bosnian Muslim population from Zepa,

Page 103

 1     and I refer you to paragraph 1171 of the judgement.

 2             And this parallels the Chamber's finding that the attack on the

 3     two enclaves was directed at the civilian populations in the enclaves

 4     even if soldiers were present there, and that's in judgement

 5     paragraph 706.

 6             On the translation issue, which Mr. Gajic discussed this morning

 7     and discussed as well with Judge Antonetti, he repeats his trial

 8     arguments about the translation of P488, particularly the word "zbeg."

 9     The Trial Chamber specifically addressed these arguments and reasonably

10     rejected them for two reasons:  One, the Chamber properly relied on the

11     official CLSS version of the document and this version translated the

12     relevant phrase as "group of refugees."

13             But perhaps more importantly and more significantly, the Chamber

14     reasonably found that even if Tolimir's translation of "place of refuge"

15     would be accepted, it would still find the intended targets were Bosnian

16     Muslim civilians.  This was because two witnesses, Ljubomir Obradovic,

17     chief of operations in the VRS Main Staff, and Milomir Savcic, commander

18     of the 65th Protection Regiment, both confirmed that Tolimir's proposal

19     contained in P488 was aimed at fleeing civilians.  And I refer you to

20     paragraph 1091 and footnote 4290 of the judgement.

21             Judge Nyambe in her dissent on this document, cited today by

22     Mr. Gajic, did not address the evidence of these two witnesses who

23     testified about P488 itself.  She instead relied on a different witness

24     who may have been talking about the word "zbeg" but did so in the context

25     of a different document.  And I refer you to transcript 8624 to 8626.

Page 104

 1             And finally, Mr. Gajic today argued that the proposal to destroy

 2     the refugees could not be implemented.  I would suggest that this

 3     suggests -- that this glosses over the importance that Tolimir was

 4     willing to even make such a radical proposal.  That's what is important.

 5     Not whether it was possible to carry it out.

 6             I see the time is close to where we will take a break, I think.

 7     But perhaps I could be assisted by the Chamber.

 8             JUDGE MERON:  Yes, you are assisted positively by the Chamber.

 9             MR. KREMER:  Okay, thank you.

10             JUDGE MERON:  We agree.  So we will now have a pause of

11     20 minutes and we will reconvene at 20 minutes past 3.00.

12                           --- Recess taken at 2.57 p.m.

13                           --- On resuming at 3.21 p.m.

14             JUDGE MERON:  Please be seated.

15             Continue the response by the Prosecution.

16             Mr. Kremer, you are continuing?

17             MR. KREMER:  Yes, thank you, Mr. President.

18             Just continuing on from where I was, I'm -- given that

19     Exhibit P488 is probative on its face, it is made even more compelling

20     by the other evidence of Tolimir's genocidal intent.  First example of

21     this other evidence is his use of and encouragement of derogatory and

22     dehumanising language.  The Chamber found that he personally used

23     derogatory terms such as "Turks" and "balijas" when discussing POW

24     exchanges or negotiations with the ABiH, see judgement paragraph 1168.

25     He also from his position as assistant commander condoned the use of

Page 105

 1     these same terms by his subordinates, same paragraph.

 2             The Chamber concluded that Tolimir used and encouraged such

 3     language to promote "an attitude that Bosnian Muslims were human beings

 4     of a lesser value with a view to eradicate this particular group of the

 5     population from the eastern Bosnian Herzegovina," judgement

 6     paragraph 1169.

 7             Next example is Tolimir's awareness of the genocide;

 8     specifically, the Trial Chamber's finding that he knew that both the

 9     forcible transfer and the murder operations were being carried out with

10     genocidal intent.  I refer you to judgement paragraphs 1166 and 1172.  In

11     particular he was aware of the scale of the atrocities and the general

12     context which the jurisprudence says can help show genocidal intent.

13     That's the recent Karadzic 98 bis appeals judgement at paragraph 80.

14             In terms of his awareness, I refer you to the Chamber's analysis,

15     and I'm starting to shorten my submissions to give Mr. Wood an

16     opportunity to address Your Honours on alternative modes, I refer you to

17     paragraphs 1038, 1093, 1094, and 1109 of the judgement.

18             But even assuming that P488 is not clear on its face, on the

19     21st of July, 1995, when he proposed to destroy Bosnian Muslim refugees,

20     he was aware the genocide was in full swing and he was actively involved

21     in the murder operation.  And --

22             JUDGE MERON:  I'm looking at the transcript.  With regards to the

23     point you made that both the forcible transfer --

24             MR. KREMER:  Yes.

25             JUDGE MERON:  -- and the murder operations were being carried out

Page 106

 1     with a genocidal intent.  Mr. Kremer, if I were to ask you to give me the

 2     strongest single piece of evidence on the genocidal intent for forcible

 3     transfer, let's leave genocide -- Srebrenica aside, just to help me.

 4             MR. KREMER:  I would say it's the document P488 taken in the

 5     context of the events at the time it's written.

 6             JUDGE MERON:  And again, what would be the sentence in it that

 7     you would consider the most persuasive?

 8             MR. KREMER:  I think it's the quote that we're discussing, that

 9     Judge Antonetti referred to, and confirmed by the two witnesses Obradovic

10     and Savcic that they were talking about destroying fleeing civilians.

11             And -- excuse me.

12                           [Prosecution Counsel Confer]

13             MR. KREMER:  And if you're -- I'm sorry.  My colleague advises me

14     that the -- the context and also the evidence itself is that the forcible

15     transfer operation had taken place in Potocari or took place in Potocari

16     together with the murder operation, and I -- I was interpreting your

17     question as Zepa alone, but if it's the forcible transfer globally, then

18     it's the fact that the forcible transfer operation included Srebrenica,

19     included Zepa, and took place in the context of the murder operation

20     itself and that this particular document that is the subject matter of

21     this question helps confirm his genocidal intent.

22             JUDGE MERON:  And if you were to, for analytical purposes to

23     separate the two, you speak only of Zepa, genocidal intent with intent to

24     transfer, what is the strongest piece that you could suggest to the Bench

25     to reflect upon when it comes to deliberating on the case?

Page 107

 1             MR. KREMER:  I would say that it's entirely artificial to split

 2     the baby.  I don't think we come up with any wisdom like Solomon did in

 3     terms of solving the problem.

 4             JUDGE MERON:  But, of course, in previous cases on these complex

 5     issues, Krstic, Popovic, these issues were treated separately, were they

 6     not?

 7             MR. KREMER:  It was a pleading -- they were treated separately

 8     because it was a pleading issue.  In this particular case the indictment

 9     combined the two operations --

10             JUDGE MERON:  I --

11             MR. KREMER:  -- into the --

12             JUDGE MERON:  [Overlapping speakers]

13             MR. KREMER:  -- support for the genocide.

14             JUDGE MERON:  -- ever in contrast to previous jurisprudence which

15     combines the two.  And analytically, I ask a legitimate question.

16     Imagine that you'd just give me the strongest argument you have for

17     genocidal intent on Zepa alone.

18             MR. KREMER:  That's a --

19             JUDGE MERON:  This previous came out of the previous

20     jurisprudence of this Tribunal.

21             MR. KREMER:  I'm not sure that it has.  This is the first case

22     where Zepa -- the Zepa evidence has been fully integrated into a finding

23     of genocide, and instead of looking at it contextually as a whole, I'm

24     unfortunately being asked to look at this piece after -- without -- and

25     ignore everything that went before, and it's the context of the entire

Page 108

 1     operation.  So Zepa taken as a forcible transfer, we have two acts - and

 2     I'll be candid - we have only two acts, underlying acts of genocide:  We

 3     have the killing of the three leaders and we have the mental harm to the

 4     people who were transported out.  Those are the two genocidal acts.

 5             The intent of Tolimir to commit genocide flows from his knowledge

 6     of everything that went before.  He's involved -- he is on the ground

 7     involved in the forcible removal with negotiations, he knows the entire

 8     situation, he knows what's happened in Srebrenica, that 30.000-plus had

 9     been forcibly removed, that over 5700 men and boys had been killed, and

10     all of that with this document, his derogatory words and everything else

11     the Chamber referred to supports a finding of genocide.

12             I think if you're looking for a genocide that it looks, smells,

13     and tastes like genocide, it looks different than Srebrenica.  There is

14     no doubt about that.  But in terms of the purely academic discussion, we

15     have the underlying acts of genocide, we have the genocidal intent, and

16     we have the supporting background knowledge of Tolimir from which you can

17     infer his genocidal intent.  But please don't view this as a concession

18     that we agree that we should split the baby.  We shouldn't.  This case

19     has to be looked at through the lens of the forcible transfer operation

20     and the murder operation and evaluated as a whole and his genocidal

21     intent determined as a -- at the end as to whether or not he intended --

22     he had the genocidal intent.

23                           [Appeals Chamber confers]

24             JUDGE ROBINSON:  Mr. Kremer.

25             MR. KREMER:  Yes.

Page 109

 1             JUDGE ROBINSON:  Suppose the Bench finds that the case has not

 2     been made out for treating both Zepa and Srebrenica as a whole, is it

 3     still open to the Bench to see whether the case is made out in respect of

 4     each separately?

 5             MR. KREMER:  Are we talking genocide or --

 6             JUDGE ROBERTSON:  Genocide, genocide.  I am trying to really make

 7     a case for you to answer Judge Meron's question.

 8             MR. KREMER:  No, I understand.  I -- it depends on what basis

 9     that determination is made which will then form my answer.  If the basis

10     for finding that the murder operation, which is the -- which seems to be

11     falling off on the questions asked by the Chamber, is not proven beyond a

12     reasonable doubt, then the question is are all of the findings that the

13     Trial Chamber made still there.  And if they are all still there but the

14     legal test has not been made, then our argument is that if you take all

15     of those factual findings vis-à-vis the background, you can still support

16     a conviction for genocide using his membership contributions to the JCE

17     to forcibly transfer in light of the genocidal intent that he was aware

18     of in the Bosnian Serb forces and the other members of the JCE in

19     pursuing both the murder operation and so on.  You don't have to be a

20     member or criminally responsible for the other acts in order to have

21     genocidal intent and make a contribution to the genocide, and there is

22     no -- as long as the contribution is significant and made with the

23     specific intent to destroy a whole -- the group in whole or in part, then

24     that is enough.

25             And what our simple answer is that they're looking at what is his

Page 110

 1     contribution to the JCE to forcibly transfer and what did he know, and

 2     the Chamber found that when he was contributing to the forcible transfer,

 3     he was aware that the operation was being carried out with genocidal

 4     intent.  And then the question becomes did he have personally genocidal

 5     intent, and they found he did for the reasons that the Chamber expressed

 6     based on this document and other evidence.

 7             So the -- your Question 6 causes us difficulty in terms of

 8     answering because it doesn't fully identify what the theoretical basis

 9     for the wiping away of the JCE to murder is.  If it's based on all of

10     ground 16 is allowed, each and every one of the 23 specific grounds,

11     which is basically we're pretending that Srebrenica didn't happen and

12     that General Tolimir had no role in it, then the answer is maybe we don't

13     have a genocide in Zepa based on forcible transfer.  But as I say, if

14     it's only -- the proof isn't up to beyond a reasonable doubt, whether

15     it's based on intent or whether it's based on the significance of his

16     contributions, then that's another question because the Chamber does make

17     an enormous amount of factual findings about the murder operations, about

18     what he knew, about the genocidal intent of the members of the VRS who

19     were carrying it out, and for all of the reasons that the Chamber

20     articulate found that he had genocidal intent and was aware that the

21     people perpetrating the crimes, the murder operation, even though he may

22     not have been involved in it, were doing it with genocidal intent.

23             So our position is in that circumstance you still end up

24     sustaining the conviction for genocide but on a different basis than the

25     Chamber articulated.  But it's very difficult for me to answer the

Page 111

 1     question with a lack of specificity because for -- if you -- because of

 2     the 23 grounds in -- ground of appeal 16 is 1 allowed, 2 allowed, 3

 3     allowed, which -- what other permutations it becomes so complicated that

 4     it would take almost a book to answer the question depending what the --

 5     what was possible.

 6             So my simple answer is, to the one, yes, it's possible.  But

 7     again, if -- if we're going to be saying based on your best piece of

 8     evidence, that's almost an unfair question.  There was a lot of evidence.

 9     Tell me what evidence the Chamber accepts that isn't problematical, and I

10     can give you a well-reasoned explanation as to why there should be a

11     conviction for genocide.  But I -- sort of hypothetically it is unfair, I

12     would say, with respect.

13                           [Appeals Chamber confers]

14             JUDGE MERON:  I realise we have been quite difficult on you,

15     Mr. Kremer.  Our object is to do our job of --

16             MR. KREMER:  No, I --

17             JUDGE MERON:  To get the best arguments possible.

18             MR. KREMER:  No, I appreciate that.

19             JUDGE MERON:  I just --

20             MR. KREMER:  I'm hoping to communicate how -- we've thought long

21     and hard about this and it's been quite difficult, but we finally came to

22     the answer that I've just given you.

23             JUDGE MERON:  I think that my colleagues --

24             MR. KREMER:  We hope to be helpful but I've --

25             JUDGE MERON:  We've talked long about this question.  I don't

Page 112

 1     think we can elucidate it more.  We will consider it very carefully when

 2     we sit down to deliberate it carefully.

 3             MR. KREMER:  Thank you.

 4             JUDGE MERON:  Thank you so much and can you proceed now.

 5             MR. KREMER:  Thank you.  I'm just trying to figure out where we

 6     should go.

 7             JUDGE MERON:  Mind you to, you said to ask you to point out to

 8     the strongest single --

 9             MR. KREMER:  Yeah.

10             JUDGE MERON:  -- piece of evidence on the basis of separation.  I

11     don't think that the question is unfair.  It's typical in criminal cases

12     that the judges would ask you this question.

13             MR. KREMER:  In a criminal case that is reasonably

14     straight-forward, but here we have a decision that was entirely based on

15     a single analysis of two JCEs and conceptualising only part of it and

16     knowing, you know, as I say, it's fine to say, to look at it from the JCE

17     to only to forcibly transfer but in what context.  I need to know to

18     answer the question in a way that helps you what part of evidence is left

19     for the Chamber to consider.  Is it all of the evidence of the murder or

20     are we pretending that Srebrenica didn't exist or didn't happen.

21     That's --

22             JUDGE MERON:  We never suggested that today, did we?

23             MR. KREMER:  No, I'm not suggesting it.  But that's -- that's the

24     unwritten or unsaid premise.

25             Turning to -- I'm going to move to the answer to question one.

Page 113

 1             THE INTERPRETER:  Kindly give us a page number, please.

 2             MR. KREMER:  You asked whether the operations in Zepa resulted in

 3     the commission of genocidal acts if viewed separately, I'll try to deal

 4     with it, from the killings in Srebrenica.  By genocidal acts we

 5     understand that you are asking whether acts took place that constitute

 6     the actus reus of genocide, not whether the acts were committed with

 7     genocidal intent.

 8             In short our answer to the question as I've said is yes and the

 9     Trial Chamber reasonably found two categories of underlying acts of

10     genocide committed by the Bosnian Serb forces during the Zepa operations

11     killings and serious bodily or mental harm.

12             As to the killings, at paragraph 751 to 752 of the judgement, the

13     Trial Chamber concluded that the Bosnian Serb forces killed three of the

14     most prominent Bosnian Muslim leaders in Zepa, Mehmed Hajric,

15     Amir Imamovic, and Avdo Palic, and that these killings constituted the

16    underlying genocidal act of killings members of the protective group under

17     4(2)(A) of the Statute.  Remember that immediately after the take-over

18     of Zepa all three leaders were arrested, held in detention, Hajric and

19     Imamovic were beaten, and all three of them were violently murdered

20     and buried in a mass grave near the prison where Hajric and Imamovic

21     were last seen.  That's in paragraph 658 to 680, 1152, and footnote 2867.

22             And our position is that this is a reasonable finding based on

23     the evidence.

24             In terms of the serious bodily and mental harm of the displaced

25     persons, the Chamber found that the Bosnian Muslims forcibly displaced

Page 114

 1     from Zepa suffered serious mental harm, an underlying act of genocide,

 2     under 4(2)(B), and that's found in paragraphs 758 to 759 of the

 3     judgement.  And recall that they made similar findings vis-à-vis the

 4     killings and the serious mental harm of the people in Zepa and Potocari.

 5             The -- or in Srebrenica and Potocari.  In the case of Zepa, the

 6     Trial Chamber did a careful and detailed analysis of the combined effects

 7     caused by the entire Zepa operation on the Bosnian Muslim population and

 8     the comprehensive analysis is found through several sections, paragraph

 9     600 to 653, 758 to 759, and 1028 to 1030.  In the time that we have left,

10     obviously it would be impossible to detail all the facts, so I'll just

11     highlight a couple of them quickly, wanting to make sure that we have

12     time for Mr. Wood.

13             Beginning in early July and continuing to the 23rd of July,

14     civilian centres in Zepa and surrounding villages were subjected to VRS

15     armed incursions, artillery attacks, mortar fire, and heavy machine-gun

16     fire.  Numerous individuals, including children, were injured, and at

17     least 30 homes were destroyed in the first few days of the attack,

18     paragraph 600 to 1029.

19             The psychological trauma caused by being subject to constant

20     bombardment and the real possibility of being killed was compounded by

21     several factors.  One was that the Zepa population began to learn about

22     the fate of the Bosnian Muslims from Srebrenica, creating a state of

23     panic that was intended by the VRS.  There was a fear that the

24     Bosnian Serb forces might enter Zepa and kill everyone including the

25     women and children.  I refer you to paragraph 603 and 1031 and footnote

Page 115

 1     2613.

 2             Tolimir played on this fear by linking the events of -- in

 3     Srebrenica with the fate of the Zepa population.  On 13 July, during the

 4     very first meeting between the Bosnian Serbs and the Bosnian Muslim

 5     leaders, Tolimir drew parallels with Srebrenica informing the leaders

 6     Srebrenica has fallen and now it's Zepa's turn, judgement paragraph 607.

 7             During the attacks that followed, Tolimir took steps to enhance

 8     the psychological pressure on Zepa's population.  He made arrangements

 9     for the delivery of loud speakers, and those loud speakers were used to

10     broadcast Mladic's voice echoing throughout Zepa.  And I refer you

11     particularly to trial transcript 4821 and judgement paragraph 643 for the

12     statement as to what Mladic was saying on the broadcast.

13             On the 25th of July, exhausted and in a state of psychological

14     distress, the Bosnian Muslim population, mostly women, children, and

15     elderly went to the buses.  As I said earlier, the able-bodied men from

16     Zepa fled for their lives, especially as it became increasingly clear to

17     the Bosnian Muslims from Zepa that the missing men from Srebrenica had

18     been killed and they were fearful of being killed so they fled.

19     Paragraph 674, footnote 2903.

20             And those are just a few of the sort of factual findings that the

21    Chamber used to find the underlying act of genocide under Article 4(2)(B),

22     and our position is that the Chamber was reasonable on -- in making those

23     findings.

24             Moving quickly to question number 2.  The Trial Chamber -- the

25     question is whether the Trial Chamber erred in finding that the Bosnian

Page 116

 1     Serb forces killed the three Bosnian Muslim leaders from Zepa with the

 2     specific intent to destroy part of the Bosnian Muslim population as such.

 3     In short, our answer is the Trial Chamber did not err.

 4             The Trial Chamber correctly noted that as a general matter when

 5     the groups' leadership is targeted for destruction and the remaining

 6     members is subject to heinous acts, such as their forced displacement,

 7     then the combination of those acts is indicative of the perpetrators'

 8     genocidal intent.  I refer you to judgement paragraph 777 and 781 and

 9     footnote 3138.

10             And when the perpetrators target the core of the group for

11     destruction and displace the remaining members, those acts, taken

12     together, demonstrate the intent to destroy the group by preventing

13     it even -- from even the residual possibility of reconstituting itself.

14     And these are concepts found in the Jelisic trial judgment paragraph 82

15     and the Krstic appeals judgement paragraph 31.

16             And with this law in mind, the Trial Chamber analysed what

17     happened in Zepa.  The leadership of the Zepa community was targeted for

18     destruction because of their importance to the community and they were --

19     and the remaining Bosnian Muslims were subject to other heinous acts such

20     as their mass displacement.  The combined effect of these acts was aimed

21     at ensuring the population of the Zepa enclave would not be able to

22     reconstitute itself in turn demonstrating that the Bosnian Serb forces

23     acted with genocidal intent.  The Chamber's analysis is in paragraph 774

24     to 782.  I think I will stop there.

25             JUDGE MERON:  So you are saying, Mr. Kremer, that the killing of

Page 117

 1     those three persons was an essential element in preventing the group from

 2     reconstituting itself?

 3             MR. KREMER:  It was evidence from which the Chamber could

 4     infer -- it was evidence of an underlying act of genocide, which the

 5     killing is, and it was evidence from which the Chamber could infer, in

 6     light of all of the circumstances, that it was done with genocidal

 7     intent.  And the analysis that the Chamber did was to attempt to

 8     articulate, as fully as possible, the basis upon which it made that

 9     determination.

10                           [Appeals Chamber confers]

11             JUDGE ROBINSON:  Isn't this a case in which you would have to be

12     satisfied that this is the only inference that could be drawn?

13             MR. KREMER:  If --

14             JUDGE ROBINSON:  If it is -- can you reasonably say that this is

15     the only inference that could be drawn?

16             MR. KREMER:  There is a -- I -- I say that the only -- the

17     conclusion, the legal conclusion hasn't been proven beyond a reasonable

18     doubt that Tolimir had genocidal intent is a question that is beyond a

19     reasonable doubt determination.  And if it's a circumstantial case

20     totally, then it must be the only reasonable conclusion.  The reasonable

21     inference issue that -- I think there is a mix-up among legal officers

22     and perhaps even Judges of this Tribunal, the -- the only reasonable

23     inference concept goes to fact finding.  And if there is a -- a factual

24     finding that is made that relies on only circumstantial evidence, then it

25     must be the only reasonable inference.

Page 118

 1             But the conclusion at the end of the day as to the guilt or

 2     innocence on the essential elements is one of reasonable doubt, and if

 3     it's a circumstantial case, totally, then it must be the only reasonable

 4     conclusion.  And ultimately, the test on appeal is was the decision --

 5     was the conclusion as to guilt reasonable.  That's -- that's my

 6     submission.  You cannot --

 7             JUDGE ROBINSON:  Yeah, but I think I agree with you that there is

 8     a confusion.  Well, in the instant case, I agree with you the ultimate

 9     question is beyond reasonable doubt, you know, but before you get to that

10     question don't you have a number of issues that go to the evidence which

11     the Prosecution is relying on to prove intent?  I mean, that happens in

12     any case --

13             MR. KREMER:  Yes.

14             JUDGE ROBINSON:  -- where you have to prove intent and that is

15     usually done on the basis of inferences.

16             MR. KREMER:  And when you look at the judgement, the Chamber

17     looked at, and particularly in the genocide section, it -- it drew a lot

18     of inferences.  And it -- when it's making factual findings relating to a

19     variety of things in these paragraphs, it -- it is actually saying -- and

20     the only reasonable inference was that, well, and then there is the

21     factual finding, and then there is the next factual finding, many of

22     which are based on reasonable inference.  Some are based on reasonable

23     doubt.  I have no -- the Chamber has no doubt that this is the fact.

24             But at the end of this finding, and this is different than the

25     JCE to murder, the Chamber actually finds that this is the only

Page 119

 1     reasonable conclusion.  That's what it says.  It may even mistakenly say

 2     "inference," but our submission is that the -- at the end of the day the

 3     final conclusion is not an inference one, it's based on -- based on all

 4     of the findings whether, properly made, is the -- is the Chamber

 5     satisfied beyond a reasonable doubt that the accused committed the crime

 6     or that the Prosecution has proven the essential elements of the crime so

 7     that the conviction can be registered.

 8             And --

 9             JUDGE ROBINSON:  It cannot be satisfied beyond a reasonable doubt

10     if it made a mistake in assessing a question of inference.

11             MR. KREMER:  I agree with that too.  But the only thing that

12     falls away is the inference.  You still then are saying, Okay, without

13     that inference or without that finding, what's left.  And everything else

14     that's left may still lead to the same result.  It doesn't mean that the

15     world all of a sudden falls off the pedestal because there are multiple

16     legs holding up the finding.

17             JUDGE ROBINSON:  Yes, but it becomes more difficult.

18             MR. KREMER:  It may or may not, depends on how many findings

19     there are and how substantial they are.  And this is a case where there

20     is a wealth of evidence carefully, carefully analysed that deserves a

21     careful consideration by this Chamber as to if something doesn't satisfy

22     you, a factual finding, to look at what's left and determine whether that

23     still supports the ultimate conclusion.  The ultimate conclusion should

24     not fall because of one little fact.

25             Unless you've got any further questions, Your Honour, I'll

Page 120

 1     conclude my remarks.  Mr. Wood will deal with the alternative modes of

 2     responsibility.  And on his behalf, because I've used so much time

 3     answering your questions, perhaps being more wordy than I have been, if

 4     you would give him five more minutes, I'm sure he'd appreciate it.  Thank

 5     you.

 6             JUDGE MERON:  We will.  You have ten minutes.

 7             MR. WOOD:  Yes, thank you, Your Honour.  Thank you, Your Honour.

 8             The answer, Your Honours, to question 5, is, yes, General Tolimir

 9     can be held liable for his role in the Srebrenica killings under the

10     other modes of responsibility that have been charged in the indictment at

11     paragraph 66.

12             I've prepared my presentation to go in order of the modes that

13     the Prosecution believes are most relevant.  You've heard a lot about the

14     contributions today to the JCE to murder.  Those contributions, as I can

15     explain, also support a finding that he ordered the crimes or that he can

16     be held responsible as an orderer, as an instigator, as a planner, and

17     that he can also be held responsible for commission by omission, and of

18     course aiding and abetting.

19             The Prosecution believes that the evidence shows that ordering,

20     planning, instigating, are the primary modes that, if Your Honours should

21     turn away from JCE, that those are the modes you should look at because

22     the evidence shows that he was so deeply involved in the murder operation

23     that that's -- that's the conclusion that you should reach.

24             However, since Your Honour Judge Meron has asked a question about

25     aiding and abetting and considering the time we have left, I'll start

Page 121

 1     with aiding and abetting, if that pleases Your Honours.

 2             Now, the Chamber defines the elements of aiding and abetting at

 3     paragraphs 907 to 911 of the judgement.  So considering everything you've

 4     heard about his contributions to the JCE to murder, at the very least,

 5     Your Honours, General Tolimir also aided and abetted murder and that he

 6     rendered practical assistance, encouragement, or moral support which had

 7     a substantial effect on the perpetration of murder and, of course, the

 8     other crimes with which he's been charged.

 9             He knew that this crime would probably be committed and he knew

10     that his acts would probably assist in its commission.

11             The Prosecution has listed, of course, the contributions that the

12     Chamber found that Tolimir made to the joint criminal enterprise to

13     murder at paragraph 234 of its response brief.  I'll highlight just a few

14     of those and they may sound familiar from what you've heard previously.

15             The Chamber found that Tolimir "started actively being involved

16     in the accomplishment of the murder plan" from the moment he came to know

17     about it, at the latest by the 13th of July.  That's the Chamber's

18     finding at paragraph 1104.  The Chamber found that through his continued

19     involvement in concealing the murder operation as it unfolded and his

20     failure to protect the Bosnian Muslim prisoners, Tolimir helped ensure

21     that the murder operation would unfold smoothly, secretly, and

22     uninterrupted.  That's at paragraph 1164 of the judgement.

23             The Chamber also found that Tolimir "directed, controlled, and

24     supervised his subordinate organs and personnel" throughout the murder

25     operation including such men as Popovic, Salapura, Jankovic, his direct

Page 122

 1     subordinate Beara, as was Salapura, and Keserovic.  As the Chamber found,

 2     as you've heard today, each of these men was deeply and extensively

 3     involved in the murder operation.

 4             All of these efforts, Your Honours, helped ensure that the

 5     operation would be successful, and they amounted to a lot of other

 6     acts -- a lot of other ways, modes of responsibility.  But at the very

 7     least, Your Honours, they amounted to a substantial contribution to the

 8     resulting crimes.

 9             Now as to General Tolimir's mens rea, it remains the

10     Prosecution's case that the Trial Chamber was correct in finding that he

11     did have genocidal intent and that he did have the intent to commit each

12     of the crimes with which he was convicted by the Trial Chamber.  That

13     aside, Your Honours, as to the mens rea for aiding and abetting, the

14     Chamber's finding showed that he continued to deliberately fail to act

15     despite his knowledge that his subordinates were extensively involved in

16     a murder operation, a murder operation that was being carried out with

17     genocidal intent and murder operation that was being carried out with a

18     persecutory content, a murder operation on a massive scale.  This shows

19     that Tolimir knew that these crimes would probably be committed by the

20     direct perpetrators at the very least and that his acts would probably

21     assist in their commission.

22             And I'll point out one final thing as to aiding and abetting,

23     Your Honours.  The Chamber also found that an accused can be held

24     responsible for -- can aid and abet a crime by providing tacit approval

25     and encouragement, and that's at paragraph 909.  And if you recall,

Page 123

 1     Your Honours, the Chamber found that Tolimir tacitly approved the murders

 2     at the Branjevo military farm and at Bisina, both of which were

 3     perpetrated by units under his command and supervision as the

 4     10th Sabotage Detachment.

 5             Based on all of these findings, Your Honours, Tolimir can be

 6     convicted for aiding and abetting in the planning, preparation, and

 7     execution of the indictment crimes.

 8             And with the time I have left, I'll focus on ordering,

 9     Your Honours.  And let me just say, the Prosecution will brief these

10     matters if Your Honours would find that useful so we can spell it out

11     more plainly and in perhaps longer form.

12             So as to ordering, the Chamber found -- defined the elements of

13     ordering at paragraphs 904, 906 of the judgement.  They also found that

14     Tolimir was providing -- "providing guidance, instructions, and orders to

15     his subordinates who were sending him up-to-date information."  That's at

16     paragraph 1125.

17             Now this included, of course, Beara, and it includes Popovic.

18     Beara was his direct subordinate.  Popovic was a man who he controlled

19     through the professional chain of command.  As the Chamber found, these

20     men helped to implement, co-ordinate, and supervise the murder operations

21     in the Zvornik area.  They also helped to supervise the burial and

22     reburial operations.  That's at paragraph 1064 and 1066.

23             There are a couple of orders that are -- instructions that show

24     that Tolimir was in constant contact with them.  As you've heard from

25     Mr. Kremer, on the 14th, Tolimir issued a telegram alerting the

Page 124

 1     Drina Corps of the presence of unmanned aircraft and he ordered them to

 2     shoot it down if they see it.  And as you've heard in today's hearing, on

 3     the 22nd of July, General Tolimir had a conversation with Popovic in

 4     which he told him, "You just do your job."

 5             Now what's important about this, Your Honours, is the date.  The

 6     Chamber found this happened on the 22nd of July.  At this moment

 7     General Tolimir knew, the Chamber found, that Popovic had been deeply

 8     involved in the murder operation that had been unfolding for at least ten

 9     days.  And, of course, the Chamber found that the very next day Popovic

10     supervised the 10th Sabotage Detachment in the killing of at least 39

11     Bosnian Muslim men in Bisina.  That's at 976.

12             There is similar evidence to show, Your Honours -- not evidence,

13     let me correct that.  Findings from the Chamber that show -- or findings

14     in the judgement that support a finding that Tolimir can be held

15     responsible as a planner, as an instigator, and by commission by

16     omission.  And as I said, I don't have time to get into those but I'm

17     happy to brief those for Your Honours if you wish.

18             Let me just wrap up, Your Honours, by saying the Prosecution's

19     position remains, as you heard from Mr. Kremer today, that this is a JCE

20     case.  The Chamber found that the murder operation resulted in the

21     systemic murder of at least 5.749 Bosnian Muslims, most of them in the 72

22     hours between the 13th of July and the 16th of July, 1995.

23             Like any successful and complicated military operation, they

24     required the shared intent and significant contribution of dedicated

25     individuals including Tolimir and men that he commanded and that he

Page 125

 1     controlled.  But it was also a vast military operation, Your Honours.

 2     Military operations run on plans and they run on orders.

 3             The Chamber's findings show that Tolimir and his subordinates

 4     were essential players to the successful execution of this particular

 5     operation, the murder operation.  As such, though Tolimir is properly

 6     described as having committed the crimes as a member of a JCE, he can

 7     also be held liable for murder under each of these alternate modes of

 8     liability that the Prosecution charged in paragraph 66 of the indictment.

 9             And that -- without going into the --

10                           [Appeals Chamber confers]

11             JUDGE ROBINSON:  I just wondered whether you would very briefly

12     expand on commission by omission.

13             MR. WOOD:  I'd be happy to, Your Honour.

14             JUDGE ROBINSON:  Yes.

15             MR. WOOD:  And perhaps I was confused.  I'm not sure about how

16     much additional time, if any --

17             JUDGE MERON:  You have two minutes for commission by omission.

18             MR. WOOD:  Well, I would guide Your Honours to paragraph 1 --

19     1117 and footnote 3528 of the judgement to show the elements of comission

20     by omission.  And I'll go through those elements briefly.

21             So essentially the Chamber found that Tolimir had a duty to

22     protect the prisoners, that he was duty-bound to comply with the laws

23     that included the Geneva Conventions.  That's at paragraph 1121.

24             He was also obligated to protect the prisoners under domestic

25     criminal law and under his own VRS rules and regulations, and these are

Page 126

 1     at paragraphs 1118 to 1121 of the judgement.

 2             Secondly, General Tolimir had the ability to fulfil his duty.

 3     Now, the findings are legion to support this, Your Honour.  In fact, the

 4     Chamber found that "the evidence casts no doubt on the material ability"

 5     of General Tolimir to protect the Bosnian Muslim prisoners from

 6     Srebrenica.  And that's at 1126 of the judgement.

 7             Now, as you've heard, General Tolimir played at the central role

 8     at matters concerning POW exchanges.  That's at Chamber finding at 1122.

 9     And this is borne out by other evidence and findings, Your Honours.

10             Recall that it was Tolimir who told Milenko Todorovic to prepare

11     the Batkovic detention centre for the prisoners.  That's at

12     paragraph 931.  And it was Tolimir who told him the prisoners aren't

13     coming, that's at 951.

14             Now this is evidence, Your Honours, of the power that

15     General Tolimir had as the security and intelligence chief in dealing

16     with prisoners of war and prisoners.

17             And finally, Tolimir failed to exercise his duty to protect the

18     prisoners, and these findings - I would guide Your Honours to

19     paragraph 1126 of the judgement - they listed the things that General

20     Tolimir could have done but failed to do, such as direct his subordinates

21     to comply with the rules governing the treatment of prisoners.  He could

22     have confronted Mladic, a man over whom he'd had an amount of influence

23     about what was unfolding, and he could have reported the crimes that he

24     knew were happening to the military prosecutors.  And the Chamber found

25     that he took none of these steps and that his failure to protect the

Page 127

 1     prisoners resulted in their murders.

 2             And in this way, Your Honours, he can be held responsible for

 3     commission by omission.  Although, I'll say once again the Prosecution

 4     believes JCE is the primary way in which he's responsible.  And then as

 5     an orderer, as an instigator, and as a planner.

 6             JUDGE MERON:  Thank you very much, Mr. Wood, for your response.

 7     We will meet at 4.35.  4.35.

 8                           --- Recess taken at 4.12 p.m.

 9                           --- On resuming at 4.35 p.m.

10             JUDGE MERON:  Please be seated.

11             Before turning to the counsel for Mr. Tolimir for his reply of

12     20 minutes, I understand that the Prosecution would like to make a very

13     brief corrections to the transcript.

14             MR. KREMER:  Yes.

15             JUDGE MERON:  Something I'm told which requires two minutes --

16     three minutes.

17             MR. KREMER:  Two minutes --

18             JUDGE MERON:  Two minutes.

19             MR. KREMER:  -- hopefully at the most.

20             JUDGE MERON:  Go ahead.  Sorry.

21             MR. GAJIC: [Interpretation] I apologise for interrupting,

22     Mr. President, but on the B/C/S channel I'm hearing French.

23             JUDGE MERON:  You see, we are ecumenical [Realtime transcript

24     read in error "economical"].  Can the Registry help Mr. Gajic's

25     technological problems, please.

Page 128

 1             MR. GAJIC: [Interpretation] In the meantime, the technical

 2     problem seems to have been resolved.  I can hear Serbian in my headset

 3     and I read English on the transcript.

 4             JUDGE MERON:  Oh, yes, I see in the transcript my word

 5     "ecumenical" was transcribed as "economical" which is really not quite

 6     the same, is it?  And, right.  Well, it is -- now, my correction on the

 7     record.  I hope that you will see it on the record.  My word

 8     "economic" -- after my word there is a missing word, "ecumenical."

 9             Okay.

10             MR. KREMER:  Yes, thank you.  On page 56 I misspoke two times,

11     apparently.  I meant to say paragraphs "1099 to 1028 of the judgement" --

12     or, I'm sorry, 1128.  I misspoke again.

13             On page 64, I meant to say "transcript 12942," not "12492."  On

14     page 65 I meant to say "Zvornik Brigade area of responsibility," not

15     "Zvornik area of responsibility."  On page 74, line 22, I meant to say

16     "P488," not "paragraph 488."  On page 94 line 4, Mr. Wood meant to say

17     "continued to deliberately act and failed to act" not just "failed to

18     act."  And on page 95, line 21, Mr. Wood left out a citation, it should

19     have been judgement paragraph 1165.

20             And finally on P68, line 18, I stated "Bosnian Muslim men and

21     boys who had just been executed en masse."  That should read "captured

22     Bosnian Serb soldiers."  That's --

23             JUDGE MERON:  Thank you very much.

24             Now a reply by Mr. Gajic for Mr. Tolimir.  You are supposed to

25     speak 30 minutes, but since we gave an extra five minutes to the


Page 129

 1     Prosecution we will give you an extra five minutes.  So you have 35

 2     minutes.

 3             MR. GAJIC: [Interpretation] Thank you, Mr. President.

 4             Thank you again.  As for corrections to the transcript, I will

 5     also have to make some.  But I'm not able to do so now.  I will have to

 6     listen to the audio recording first.  I hope that will be very soon.

 7             In its reply, the Prosecution presented quite a few matters

 8     contained in the judgement giving their reasoning including some

 9     positions that are inacceptable to the Defence.  The Defence believes

10     that the Trial Chamber did not establish these matters properly.

11             One of the issues that are perhaps key in this case concerns the

12     position of Mr. Tolimir in the Main Staff of the VRS and the system of

13     command and control.  Whether the others mentioned by the Prosecution

14     Nikolic, Carkic, Trbojevic, and others were subordinated to Tolimir, the

15     Defence believes not.  They were not subordinated to Tolimir.  Tolimir

16     was not their commander.  Tolimir was an assistant commander and they

17     acted as part of their own units and they were subordinated to their own

18     commanders at the level of the corps to the corps commander, at the level

19     of brigade to the brigade commander.  This is shown clearly, among other

20     things, by Exhibit P2609, signed by Commander Ratko Mladic, which

21     states -- it's a document dated 13 January, 1995:

22             "The sections of security should organisationally be subordinated

23     directly to the commander, and according to the professional line

24     directly to the Main Staff of the VRS, whereas intelligence sections

25     should be organisationally subordinated to the chiefs of staff with the

Page 130

 1     proviso that the work of the narrow circle of command should include them

 2     in making decisions for action.  Professionally intelligence sections are

 3     linked to the intelligence department of the Main Staff of the VRS."

 4             What does the professional line imply?  It does not imply

 5     command.  It implies appropriate professional training, direction,

 6     guidance, how to perform certain tasks in order to have it done uniformly

 7     in the entire Army of Republika Srpska.

 8             I will read a part of the same document that I just mentioned,

 9     2609, to see what the role of Tolimir was.  Tolimir does not command

10     them.  What is Tolimir doing?  It is said in this document, among other

11     things, that all those who are supposed to communicate with UNPROFOR or

12     anyone outside the VRS such as foreign armies, et cetera, should undergo

13     interviews and appropriate procedures with security and intelligence

14     organs to receive assignments, whether it concerns gathering of

15     intelligence or something else, whereas the chief of the Main Staff of

16     the VRS, in this case Tolimir, says "shall with a special instruction

17     regulate powers, competencies, and the method of preparing such persons."

18             That is his assignment.

19             In our appeals brief, we cited the evidence of Witness Colic who

20     during the war was a brigade commander throughout the war.  What did he

21     have to say about the security organs in the higher command vis-à-vis the

22     security organs in the lower command.  I cite:

23             [In English] "Only in terms of professional education."

24             [Interpretation] That there is no relationship between security

25     organs at various levels is said by the same witness and that is in

Page 131

 1     keeping with all the other evidence led in this case, and he says all the

 2     orders follow the system of command, whereas security organs from the

 3     lower command do not receive orders from the higher command.  It's on

 4     pages 19278 through 12 -- 19279.

 5             The same witness also talked about Tolimir's behaviour.  Tolimir

 6     never wanted to impose himself as someone from the Main Staff.  He was

 7     always prepared to listen and to propose the best solutions.  But in

 8     order not to humiliate them, he never issued orders to the security organ

 9     from his unit or any other unit.

10             So Tolimir is not the one who commanded security organs.  He

11     doesn't even command intelligence organs.  He is a professional who

12     provides appropriate instructions.

13             Then another Prosecution exhibit, P1112, specifies the tasks of

14     the security organ from the higher commands relative to the security

15     organs in lower commands.  They monitor professionalism and regularity

16     and lawfulness in work, but this control is not something that is carried

17     out at the moment a certain task is carried out.  Security organs are

18     autonomous.  That control, that inspection is periodical, whether annual

19     or quarterly, et cetera.

20             The Prosecution views the whole matter through the prism of

21     killings in Srebrenica.  We have to remember it's not a systemic

22     operation that took place over two or three years.  It lasted only a few

23     days.  We understand the effort of the Prosecution to narrow everything

24     down to those killings, but everything that was organised was organised

25     during those few days.

Page 132

 1             The plan for the murders, as established by the Trial Chamber,

 2     did not exist before the enclave of Srebrenica was captured.

 3             Furthermore, the Prosecution mentioned the very close

 4     relationship between Tolimir and Mladic.  Mr. Tolimir never contested

 5     that during the trial and of course we are not going to contest it now.

 6     Everybody in the Main Staff had to be close to Mladic.  But to take that

 7     as a prism through which all the evidence is viewed, that Tolimir was

 8     Mladic's eyes and ears, it's just a metaphor for the functional of

 9     intelligence and security organs.  Nothing more than that.

10             The witness who stated that was the chief of staff, number two in

11     the Main Staff of the VRS, deputy commander.  The Prosecution refers to

12     the evidence of Milenko Todorovic, that is to the adjudicated fact that

13     allegedly on 12 July Tolimir let Todorovic know that he should prepare

14     the Batkovic camp for the arrival of prisoners.

15             First of all Todorovic, and I will point out references in the

16     appeal brief paragraph 356, Milenko Todorovic cannot remember exactly who

17     communicated to him that the Batkovic camp should be prepared to

18     accommodate POWs.  Here in the courtroom in order to show him whose

19     authority it was, whose duty it was to do that, we showed him a document

20     from 1993, and Milenko Todorovic, and the Trial Chamber failed to

21     evaluate the behaviour of the witness in the courtroom who was obviously

22     relieved, Milenko Todorovic said, "Thank God we finally see the document

23     which we have been discussing at such length."

24             The document was signed chief of staff -- Chief of the Main Staff

25     of the VRS.  Furthermore, when Tolimir told Todorovic that the prisoners

Page 133

 1     would not be arriving, the Prosecution says it was at the latest on the

 2     13th, using that to corroborate their theory that on the 13th Tolimir was

 3     aware of the killings.  However, Todorovic cannot remember the date,

 4     whether it was the 14th or the 15th or the 16th.

 5             And the argument of the Defence is that Todorovic was not telling

 6     the truth about this, and that is shown by the evidence of Novica Simic

 7     as cited in paragraph 358 of our appeal brief.

 8             Novica Simic in the Popovic et al. case said truthfully who

 9     called him, who he talked to, and who gave him which information.  He

10     doesn't even mention the conversation between his security organ and

11     Tolimir.  I have to express my regret here that we did not manage to test

12     Todorovic's evidence by hearing Novica Simic's evidence because

13     Novica Simic died in the meantime.

14             There is a reference to this in paragraph 358 and 359 of our

15     appeal brief.

16             Also speaking of P2069.  Did Tolimir know about the separation?

17     It's a document that says that military-age able-bodied men were

18     separated at Potocari, about 70 of them.  It's a document dated the 12th.

19     In the upper part of the document, there are initials of all those who

20     read the document.  Tolimir's initials are not among those.  Furthermore,

21     that Tolimir did not see this document is shown by D64, where Tolimir

22     insists that all military-age able-bodied men who are being evacuated

23     from the base at Potocari should be listed and registered.

24             So Tolimir believes they should fair the same as all the other

25     civilians evacuated from Potocari instead of being held.

Page 134

 1             In the presentation of the Prosecution, many issues were raised

 2     about the situation in Zepa.  Was there a genocide in Zepa?  Was the

 3     operation carried out with a certain genocidal intent?  Were civilians

 4     targeted?  Were they exposed to suffering?  There is not a single piece

 5     of evidence showing that there was a genocide in Zepa or that the

 6     operation in Zepa was carried out with any genocidal intent.  That

 7     inference can be made only if one speculates through the murder

 8     operation.  And even when the Prosecution views that murder operation

 9     beginning with Srebrenica, they suppose that everybody is acting in a

10     common purpose, jointly, as they always do under the rules.

11             However, from the description given in the judgement, we see the

12     following:  Is Beara talking to Tolimir when he's facing problems in the

13     assignments given him, or is he talking to Krstic and Zivanovic?  He

14     communicates with the people who are in the area of responsibility of the

15     Drina Corps.  Tolimir is in Zepa.  Why would they inform Tolimir?

16             It is indeed the duty of security organs to monitor whether a

17     crime has been committed somewhere and to file criminal complaints, but

18     that's the job of the security department.  It's not Tolimir who is

19     supposed to run around and control this.  Were the security organs really

20     functioning properly?  I would say not.  From the position regularly

21     occupied by Tolimir, one cannot draw the inference that he is equally

22     involved in the criminal activity.

23             Furthermore, the issue is raised here why those able-bodied

24     military-aged men in Zepa were not killed.  The Prosecution says because

25     they had run away to Serbia, for instance.  But let us see what happened

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 1     in Zepa from the beginning.  The moment Tolimir arrives in Zepa, he gives

 2     them a choice:  Lay down your arms, those who want to stay in Zepa may;

 3     those who don't want to stay may leave.  There are negotiations on the

 4     13th, 19th, 24th, 27th of July.  UNPROFOR is there.  The proposal is made

 5     to place them under the supervision of the ICRC and UNPROFOR pending an

 6     exchange of prisoners of war.

 7             Is there any genocidal intent there or an intent to kill them?  A

 8     correct version of the events in Zepa was given by a Prosecution witness,

 9     Viktor Bezruchenko in D55.  As soon as the Defence identified this

10     exhibit, it tendered it.  It's an excellent document speaking volumes

11     about the actual unfolding of events.  It describes all the machinations

12     that took place with the surrender of weapons in Zepa.  Avdo Palic came

13     to negotiate that.  There was a dilemma whether an agreement was reached

14     or not, and then they transferred to Serbia.

15             There is no evidence that they were killed or that anybody

16     planned to kill them.  That theory can only be pure speculation and

17     nothing more than that.

18             The Prosecution also invokes Exhibits P2875 and P122.  These

19     exhibits show one instruction, one proposal by Tolimir.  How does the OTP

20     interpret that?  Don't register them because they need to be killed.

21     However, these documents clearly say they should not be registered in

22     case the Muslims violate the agreement that had been reached.  And it

23     says explicitly:  We will save them for an exchange.  There is no mention

24     of the possibility that any of them could or should be killed.

25             There was a proposal, let me remind you, that they would be

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 1     placed under the supervision of the UNPROFOR pending an exchange.

 2             JUDGE MERON:  [Overlapping speakers]

 3             MR. GAJIC: [Interpretation] The Prosecutor also --

 4             JUDGE MERON:  [Microphone not activated] They would not be

 5     registered, correct?  Is that what you said?

 6             So if the -- should the Muslims violate the agreement, then they

 7     would not be registered?

 8             MR. GAJIC: [Interpretation] This is what we read in the document:

 9     In case they violated the agreement, they should not be registered and

10     that they should be kept there for future exchanges.

11             JUDGE MERON:  But if they are in a limbo of not being registered

12     despite the clear obligation under the Third Geneva Convention to

13     register them, then isn't it fair for the Prosecution also to say that

14     this may have some much more ominous consequences?

15             MR. GAJIC: [Interpretation] No.  If we look at the document, in

16     the document itself it says that they will be guarded for an exchange.

17     Second of all, I would like to remind you that the registration of

18     prisoners of war is indeed an obligation pursuant to the

19     Third Geneva Convention.  However, non-registering of a prisoner of war

20     could not constitute a serious violation of the Geneva Conventions.  This

21     certainly cannot fall into the category of serious violations.

22             If they are safe-guarded but not registered, that doesn't mean

23     that they will be killed.  We saw that there were a lot of problems with

24     regard to an agreement as to how prisoners of war would be exchanged,

25     according to what principle prisoners of war were to be exchanged for

Page 137

 1     Serbian prisoners of war.  But there were a lot of delays and problems in

 2     that.  These two documents certainly cannot be used as proof of a

 3     genocidal intent or any such thing.

 4             JUDGE MERON:  It seems to me that if you would want to exchange

 5     prisoners of war, registering would be a preliminary step which would fit

 6     into exchange, wouldn't it?

 7             MR. GAJIC: [Interpretation] In this particular situation -- or

 8     rather, in normal situations of course the answer would be yes.  However,

 9     the situation as it prevailed in Zepa and the problems that existed there

10     were negotiations were being played with.  The Army of Republika Srpska

11     was under a lot of pressure by UNPROFOR with regard to Zepa.  They played

12     with the agreements, and the question is whether the Serbian prisoners of

13     war were registered.  That's all.  We don't have any proof that Serbian

14     prisoners of war were also not registered.  We don't have any proof to

15     that fact.

16             Second of all, the status of not being registered, if I'm not

17     mistaken, but we can check in the document, can last only during combat

18     and not after that.  That may be a day or perhaps a little bit longer,

19     but not much longer than that.  That status of not being registered,

20     according to Tolimir, should have been of a very, very temporary nature,

21     only for the duration of combat activities in order to prevent abuses by

22     the Muslim side.

23             Let's not forget that at that time they already started crossing

24     over to Serbia or they were trying to break through in some other

25     directions.

Page 138

 1             JUDGE MERON:  If I come back for a second into the first issue in

 2     which you elaborated - namely, the consequences and the nature of being

 3     assistant commander - would you agree that at the very least an assistant

 4     commander would know everything that is relevant to the commander because

 5     he has to help him in doing his job, that he's completely informed about

 6     what is going on?

 7             MR. GAJIC: [Interpretation] Under regular conditions, yes.

 8     However, we have a case here that it wasn't Tolimir who had a say as to

 9     what a security organs at lower levels would be doing.  We saw a document

10     that I have already mentioned.  Let me just try and find the number for

11     you.  Please bear with me.

12             JUDGE MERON:  My question was about knowledge not now about

13     giving orders.  I would like now to come to the question of orders.  You

14     considered, I think you agree, that an assistant commander would

15     basically know everything that the commander knows.

16             As regarded the capacity, the competence to give orders, imagine

17     that Mr. Tolimir, as assistant commander, deals with those questions we

18     dealt with earlier, accommodation and hangars and so on.  Presumably when

19     he talks to senior commanders, he would make it clear that he's acting on

20     behalf of his boss, wouldn't he, and then they would not raise questions

21     about his competence, would they?

22             MR. GAJIC: [Interpretation] I need to make a little correction on

23     the first question, which is the issue of knowledge.  An assistant

24     commander doesn't have to know everything that a commander knows.  In the

25     military there is a rule of people being informed on a need-to-know

Page 139

 1     basis.  An assistant commander does not have to know everything.  A

 2     commander can bypass his assistant for any reason.  For example, he may

 3     have been sent on a mission and the commander doesn't want to disturb

 4     him.

 5             And as for issuing instructions and orders, we have to make a

 6     distinction between two things:  One is a normal customary situation, and

 7     the other situation is an extraordinary situation, an exceptional

 8     different situation of the kind that existed during this operation to

 9     kill, the murder operation that is.

10             JUDGE MERON:  That was not the -- a minor thing.  That was the

11     biggest thing that was happening.  Is it conceivable that the assistant

12     commander would not know about that?  That would somewhat stretch the

13     imagination, wouldn't it, that he would not know about what's going on

14     with regard to killing of thousands of people?

15             MR. GAJIC: [Interpretation] First of all, when we speak about

16     this specific situation, Tolimir was sent to Zepa on Mladic's order.

17     Beara, the chief of the security administration, was in Srebrenica on the

18     other hand.  Commander Mladic sent other security and intelligence men to

19     various missions in the area of responsibility of either the

20     Bratunac Brigade or the Zvornik Brigade, and he never seeks Tolimir's

21     approval for any of that.

22             It is quite possible to notice that the assistant commander for

23     security and intelligence was really not informed about certain things.

24     At that time, as shown by documents, Tolimir was engaged in Zepa first

25     and foremost, and developments in Zepa were by no means simple.  There

Page 140

 1     were a lot of negotiations.  They had to cross very difficult terrain and

 2     spent time in Zepa without any communications there.  Why would anybody

 3     inform Tolimir in the first place if Tolimir was not involved in the

 4     whole thing?

 5             I'm not going to tackle other things at this moment; i.e.,

 6     whether somebody from the Main Staff participated in that or not.  Our

 7     position has always been that members of the Main Staff are separate

 8     cases and those separate cases are heard separately.  To put it simply:

 9     Tolimir was simply not there, not in those situations.

10             Let me remind the Appeals Chamber - I can see that I have two

11     more minutes left - of a decision or a dissenting opinion by

12     Judge Badawi Pasha in the Corfu Channel case.  He was considering a

13     second-hand evidence and he pointed to the danger of interpreting that

14     evidence where voids are filled with various assumptions, associations,

15     and that certainty cannot be achieved in that way.  The standard of proof

16     that has to be achieved before this Tribunal is not probability or

17     likelihood or reasonability of a decision but rather a high degree of

18     certainly beyond any reasonable doubt.

19             In this case, the Prosecutor has not succeeded to prove beyond

20     reasonable doubt that Tolimir was aware of the murder operation, that he

21     was a participant in that operation, or that he intended to participate

22     in the murder operation.  Therefore, we believe that he should be

23     acquitted on all counts of the indictment.

24             JUDGE MERON:  Thank you, Counsel, for your argument.  This brings

25     us to the end of arguments by the parties.  And now the time has come to


Page 141

 1     ask Mr. Tolimir whether he would like to exercise his right of ten

 2     minutes personal statement.

 3             THE APPELLANT:  [Microphone not activated]

 4             THE INTERPRETER:  Could the accused --

 5             JUDGE MERON:  Microphone.

 6             THE APPELLANT: [Interpretation] I would like to address the

 7     Trial Chamber with a few words.  With your leave, Your Honour.

 8             JUDGE MERON:  Appeals Chamber.

 9             THE APPELLANT: [Interpretation] Appeals Chamber, I apologise.

10             JUDGE MERON:  Please do.

11             THE APPELLANT: [Interpretation] Thank you, Mr. President.

12             I would like to greet all the members of the Appeals Chamber, all

13     the interpreters, and the staff of Tribunal, the Prosecutor's office, and

14     the Defence, and all the other personnel that has helped us during the

15     trial and enabled us to finish the trial without any technical problems.

16             The Prosecutor's Office as a segment of this Tribunal says that

17     Tolimir should be sentenced based on the Prosecutor's conclusions which

18     are not based on evidence but rather on assumption as well as on the

19     erroneous translation of documents with decisions that were never

20     implemented on the destruction of any individual or groups of individuals

21     either in Zepa or in other parts of the territory of Republika Srpska.

22             Also, those tasks were not implemented in terms of the disputable

23     "zbegovi."  Those proposals were never realised about those, "zbegovi."

24     I don't know why in these proceedings this programme referring to zbegovi

25     has been mistranslated both in French and in English as well as in

Page 142

 1     Serbian, although that term or the terms that are used in all the three

 2     languages are identical.  Why have they been translated in an identical

 3     way in all the three languages?  Was the document translated from English

 4     into French?  I don't know.  But the Appeals Chamber should establish

 5     that, why the difference in the translations as referred to by

 6     Judge Antonetti.

 7             It will be my honour to be sentenced based on the interpretations

 8     and descriptions proffered by the Prosecutor here today as well as based

 9     on the erroneous translation of documents about the destruction of

10     natural features in mountains outside of settlements and outside of the

11     range of the weapons of the Army of Republika Srpska and contrary to the

12     provisions on the authorities of the accused in combat and through a

13     different application of the evidence on the part of the Prosecution both

14     during my trial and during the hearing today.

15             Also, I would like to say that there are very different

16     interpretations on the part of the Prosecutor and on the part of the

17     Trial Chamber on the role of the sides of the conflicts; i.e., the VRS on

18     the one hand and the BiH Army on the other hand.  In a demilitarised zone

19     under the control of UNPROFOR, attacks were launched from there on the

20     territory of Republika Srpska against the population, the military, even

21     the command post, and those were sabotage attacks by the BiH against the

22     VRS.  We tendered evidence to that effect during the trial.

23             There were a lot of such actions.  Even Avdo Palic mentioned ten

24     sabotage groups that attacked the forward command post in Han Pijesak,

25     when about 50 members were killed.  That was the reason why attacks from

Page 143

 1     Zepa and Srebrenica were repelled when they launched the attacks on the

 2     features and facilities of the Army of Republika Srpska outside of

 3     Srebrenica and Zepa.

 4             I find it surprising that we are being charged with what we were

 5     supposed and duty-bound to do and defend by law.  We were duty-bound to

 6     defend Republika Srpska.  It was a legitimate activity.  It was our

 7     military activity, legitimate activity during combat.  However, a month

 8     after combat activities in Srebrenica and Zepa, there was a military

 9     retaliation against the Army of Republika Srpska and the entire territory

10     of Republika Srpska, including the population and the military on the

11     order of NATO and UNPROFOR.  And both were supposed to protect equally

12     Serbs and non-Serbs, all the sides to the conflict in other words.

13             It was a retaliation as was said by General Rupert Smith, the

14     then commander of UNPROFOR, and that's what he said in response to my

15     questions during his testimony.  He said that Zlovrh, the highest peak

16     near Zepa, 30 days after the Muslim population of Zepa had left, was

17     bombarded in retaliation.  However, the centre where ten soldiers were

18     killed at the time, communications, signalsmen had been destroyed before

19     the aggression of NATO, the Republic of Croatia, the Army of

20     Republika Srpska.  Before the NATO aggression, that centre was destroyed.

21             The NATO, the BiH Army, and the Army of Republika Srpska attacked

22     the Army of Republika Srpska [as interpreted].  From that facility,

23     signals were sent to all units in the territory of Republika Srpska, the

24     Republika Srpska of Serbian Krajina, and the Federal Republic of

25     Yugoslavia.

Page 144

 1             I am referring only to the well known data about those things

 2     familiar to the Trial Chamber, the Appeals Chamber, all the inhabitants

 3     of Republika Srpska, the Federal Republic of Yugoslavia, and the

 4     Republic of Serbian Krajina and all the republics of the former

 5     Federative Republic of Yugoslavia.

 6             That happened towards the end of the war in Bosnia-Herzegovina.

 7     The NATO aggression against Serbia was led by the same person who led the

 8     NATO aggression against Republika Srpska.  The NATO aggression against

 9     the Federal Republic of Yugoslavia was under the command of the chief of

10     staff of the Supreme Command of NATO in Brussels who at the time of the

11     war in Bosnia-Herzegovina was the UNPROFOR commander, I'm talking about

12     General Rupert Smith.

13             During the preparation for the aggression against the

14     Federal Republic of Yugoslavia, all the centres in Republika -- of

15     Serbian Krajina and Republika Srpska were destroyed as well as in the

16     Federal Republic of Yugoslavia, including TV centres which showed images

17     of what was going on in the territory of Republika Srpska and the

18     Republic of Serbian Krajina as well as the Federal Republic of Yugoslavia

19     when it came to NATO aggression.

20             Unfortunately, due to the NATO aggression against the centre and

21     studio that broadcast news of what NATO did during the aggression, the

22     director of the studio was sentenced to ten years in prison and 22

23     employees of the centre were killed.  That centre broadcast shows and

24     they were bombarded based on the signals that they broadcast.

25             The images is something that everybody in the territory of the

Page 145

 1     former SFRY is familiar.  There is evidence of that bombardment in this

 2     case as well.  It was tendered towards the end of my trial.

 3             During the aggression of the NATO --

 4             JUDGE MERON:  I gave you ten minutes.  I give you one more minute

 5     to sum up, please.

 6             THE APPELLANT: [Interpretation] Okay.  Thank you.  When it comes

 7     to the NATO aggression against the Republic of Serbian Krajina and the

 8     Federal Republic of Yugoslavia, I provided evidence during my trial.

 9     However, everybody knows about all that, the Trial Chamber, the

10     Appeals Chamber, the population, and all the participants in this trial.

11     These facts will remain as evidence of the happenings which happened

12     exactly in the way I described them.  If there is something not true to

13     what I am telling, I am prepared to bear responsibility and stand trial

14     for that.  But it is my duty to say that various and different criteria

15     have been applied to various sides to the conflict because of the

16     partiality of NATO commanders, UNPROFOR commanders, and all the relevant

17     international structures which were engaged in the former Federative

18     Republic of Yugoslavia.

19             Thank you.  I apologise for overstepping my time.  I would like

20     to thank you for allowing me to finish in the way I did in view of the

21     fact that I have nothing written before me.

22             JUDGE MERON:  Thank you Mr. Tolimir.

23             This concludes the hearing of the appeal in this case.  Before we

24     adjourn, let me just take a moment to thank the parties for their work on

25     this case and for their arguments today.  I would like also to express my

Page 146

 1     gratitude to the Registry staff here in the courtroom who have so ably

 2     facilitated our hearing today and to the interpreters for their excellent

 3     assistance.  The Appeals Chamber will render its judgement in due course.

 4     The proceedings are adjourned.

 5                           --- Whereupon the Appeals Hearing adjourned

 6                           at 5.26 p.m.