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
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
16 JUDGE MERON: Thank you, Mr. Tolimir.
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.
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
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.
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
24 It also states that the concept of leader in modern society for
25 human freedoms and rights has an accronis [phoen] and discriminatory
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
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
1 Muslim population of Zepa was already on the territory of BH or in
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
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
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.
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
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
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.
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
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
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
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
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
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
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
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.
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
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
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
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
25 MR. GAJIC: [Interpretation] Mr. President, in this period between
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
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
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,"
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
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
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
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
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
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
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
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
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
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
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
1 translation. The word "zbeg" does not mean "refugees" or "displaced
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.
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
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,
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
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
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
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.
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.
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
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
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
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
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
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
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
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
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
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,
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
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
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
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
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
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,
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
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
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
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
24 MR. KREMER: The answer to your question is yes. The
25 Trial Chamber looked at the operation singly because the operation
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?
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
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
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
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
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
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
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
25 The same evening on the 16th of July, Tolimir was at a meeting at
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
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
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
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
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.
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
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
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,
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
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
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
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,
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.
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
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
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?
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
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
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.
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
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
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
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.
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
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
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
24 Moving quickly to question number 2. The Trial Chamber -- the
25 question is whether the Trial Chamber erred in finding that the Bosnian
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
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
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.
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
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
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
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
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
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,
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
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
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
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
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.
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."
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
1 Prosecution we will give you an extra five minutes. So you have 35
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
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
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.
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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.